81 eso
Friday
February 13, 1981
Standards Applicable to Hazardous
Waste Land Disposal! Facilities; Proposed
and Temporary interim Final Regulations
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12414 Federal Register / Vol. 46.-No. 30 ./ Friday, February 13. 1981 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 267
ISWH-FRL 1725-11
Interim Standards for Owners and
Operators of New Hazardous Waste
Land Disposal Facilities and EPA
Administered Permit Programs: The
Hazardous Waste Permit Program
AGENCY: Environmental Protection
Agency.
ACTION: Interim final rule and request
for comments.
SUMMARY: The Environmental Protection
Agency (EPA) is today promulgating
temporary standards for four classes of
new hazardous waste land disposal
facilities—landfills, surface
impoundments, land treatment facilities
and Class I underground injection wells.
These standards will allow EPA to issue
permits to new land disposal facilities
pending the development of permanent
land disposal standards for new and
existing facilities.
DATES: Effective Date: August 13,1981.
Comment Dale: This regulation is being
promulgated as an interim final rule. The
Agency will accept comments on it until
April 14,1981.
ADDRESSES: Comments on this
regulation should be sent to Docket
Clerk, Docket 3004: New Land Disposal
Facilities, Office of Solid Waste (WH-
582), U.S, Environmental Protection
Agency, 401M Street, S.W.,
Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT:
For information on the technical
aspects of this regulation contact: John
P. Lehman, Acting Director, Land
Disposal Division, Office of Solid Waste
(WH-584), U.S. Environmental
Protection Agency, 401M Street, S.W.,
Washington, D.C. 20460, (202) 755-9185.
For information on the management
and implementation of the RCRA permit
program contact:
John H. Skinner, Director, State
Programs and Resource Recovery
Division, Office of Solid Waste (WH-
563), 401M Street, S.W., Washington
D.C. 20480, (202) 755-9107 or
Heather Struck, Attorney, Permits
Division, Office of Enforcement (EN-
338), U.S. Environmental Prptection
Agency, 401M Street, S.W.,
Washington, D.C. 20460, (202) 755-
0760.
For State or Regional related
information contact:
Region I, Dennis Hueber, Chief,
Radiation, Waste Management
Branch, John F, Kennedy Building,
Boston, Massachusetts 02203, (617)
223-5777.
Region IL'Dr. Ernest Regna, Chief, Solid
Waste Branch, 26 Federal Plaza, New
York, New York 10007, (212) 264-0504/
5.
Region HI, Robert L. Allen, Chief,
Hazardous Materials Branch, 6th and
Walnut Streets, Philadelphia,
Pennsylvania 19106, (215) 597-0980.
Region IV, James Scarbrough, Chief,
Residuals Management Branch, 345
Courtland Street, N.E., Atlanta,
Georgia 30365, (404) 881-3016.
Region V, Karl J. Klepitsch, Jr., Chief,
Waste Management Branch, 230 South
Dearborn Street, Chicago, Illinois
60604, (312) 886-6148.
Region VI, R. Stan Jorgensen, Acting
Chief, Solid Waste Branch, 1201 Elm
Street, First International Building,
Dallas, Texas 75270, (214) 787-2645.
Region VH, Robert L. Morby, Chief,
Hazardous Materials Branch, 324 E.
llth Street, Kansas City, Missouri
64106, (816) 347-3307.
Region VHI, Lawrence P. Gazda, Chief,
Waste Management Branch, 1860
Lincoln Street, Denver, Colorado
80203, (303) 837-2221.
Region IX, Arnold R. Den, Chief,
Hazardous Materials Branch, 215
Fremont Street, San Francisco,
California 94105, (415) 556-4606.
Region X, Kenneth D. Feigner, Chief,
Waste Management Branch, 1200
Sixth Avenue, Seattle, Washington
98101, (206) 442-1260.
SUPPLEMENTARY INFORMATION:
L Authority
These amendments are issued under
the authority of Sections 1006, 2002(a),
' 3004 and 3005 of the Resource
Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. §§ 6906,
6912(a), 6924 and 6925. '
n. Purpose of and Need for These
Regulations
Subtitle C of RCRA requires EPA to
establish a comprehensive Federal
regulatory program to assure the safe
management of hazardous waste. In
addition to regulating the activities of
hazardous waste generators and
transporters, a major goal of this
program is to assure that wastes are
treated, stored and disposed of only at
environmentally sound hazardous waste
management facilities. RCRA seeks to
accomplish this goal by requiring all
hazardous wastes to be designated for,
transported,to and treated, stored and
disposed of at permitted facilities and
requiring those permits to contain EPA-
approved requirements 'for the design,
construction and operation of the»
facility.
Unlike Clean Water Act permits,
which can be issued in the absence of
EPA regulations (see-Section 402(a)(l),
33 U.S.C. 1342(a)(l)), RCRA permits may
be issued only after EPA has
promulgated regulations establishing
standards for hazardous waste
management facilities under Section
3004 of RCRA. See Section 3005(c).
These standards are also directly
enforceable against a facility.1 Section
3008.
On May 19,1980, EPA promulgated
the first phase of its Section 3004
standards under Subtitle C of RCRA. 45
PR 33066-33588, These "Phase I"
regulations contain self-executing,
largely administrative and operational
standards which existing hazardous
waste management facilities 2 must meet
during interim status. They do not
contain the technical operating, design •
and construction requirements
necessary to issue permits to new or
existing facilities (e.g., requirements for
landfill liners or incinerator destruction
and removal efficiencies). As discussed
at length in the preamble to the Phase I
regulations, these standards were
scheduled to be issued as "Phase II" of
EPA's hazardous waste program,
sometime in late 1980. 45 FR 33156-.
33157.
EPA has now issued a large portion of
these Phase II standards. Standards for
issuing permits to tanks, piles, storage
surface impoundments and container
management facilities were promulgated
on January 12,1981 (46 FR 2802).
Standards for hazardous waste
incinerators appear in the January 23,
1981, Federal Register at 46 FR 7666.
Conspicuously absent from these two
sets of regulations are standards for
permitting the four major classes of land
disposal facilities—landfills, surface ^
impoundments, land treatment facilities
and Class I underground injection wells.
Drafting standards for these classes of
hazardous waste management facilities
has been the most difficult task EPA has
faced in developing its hazardous waste
program. The Agency first proposed
standards for permitting land disposal
facilities on December 18,1978 (43 FR
58982). EPA received hundreds of
comments on these standards, criticizing
them for their reliance on design criteria
1 EPA will not enforce Section 3004 standards
directly against a facility which has a RCRA permit.
See 40 CFR 122.13 and 45 FR 33312 (May 19; 1980).
2 Throughout this preamble, the term "existing
facilities" will be used to refer to facilities which
have qualified for interim status and the term "new
facilities" to refer to facilities which have not
qualified for interim status under Section 3005(e) of
RCRA.
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Federal Register
Rules and Regulations 12415
and their lack of flexibility. In response
. to these comments, EPA examined
several other regulatory approaches,
including containment strategies' and
numerical and non-numerical ambient
health and environmental standards.
Based on our analysis of the advantages
and disadvantages of these alternatives,
we decided to develop revised i
regulations thaf combined features of all
four approaches. See 45 FR 66816
(October 8,1980). Those regulations
were published in the February 5,1981
Federal Register (46 FR 11126).
Because the specifics of EPA's revised
land disposal regulations had never
been proposed for public comment and
•because the regulations require a permit
applicant to make showings that may be
, on the fringes of the technical state-of-
the-art, EPA has decided that they
should be proposed. To assure that the
public has adequate time to fully
evaluate and comment on these very
complex regulations, EPA is providing a
180-day comment period on them.
The practical result of these two '
actions is that EPA will probably not be
able to issue final land disposal
standards until the beginning of 1982 at
the earliest. As noted above, EPA
cannot issue permits for land disposal '.
facilities until it issues corresponding
Section 3004 standards and those
standards become effective. Under the
most optimistic scenario, this would
mean that no land disposal facilities
could be issued permits until mid-1982 if
the only Section 3004 standards were
the permanent standards proposed
today. ;
Such a long delay in beginning the
permit program would have undesirable .
consequences for existing land disposal
facilities. Because Section 3005(e) of
RCRA treats existing facilities a.s haying
been issued a RCRA permit until final
EPA or state action is taken on their
permit application, such a delay will not
force .them to cease operations. It will,
however, slow down-the upgrading of
those.facilities. Although they are now
subject to EPA's "interim status" ',_.
standards, those standards do not
require them to install liners, leachate
collection systems and other technical
components which will assure that they
do not pose hazards to human health or -
the environment. The imposition of
these important requirements must
await the promulgation of Phase II ~
regulations and the issuance of .permits.
Fortunately, there are other
mechanisms to deal with existing
landfills. Pending the issuance of
permitting standards, EPA can take
corrective action against the worst land
disposal facilities using its authority.
under Section 7003, of RCRA. It can also
impose monitoring, analysis, testing and
reporting requirements under Section
3013. In addition, states can take" action
to close dgwn or upgrade these facilities
under state l^w.
The timing of EPA's finaliand
disposal regulations creates a much
more serious problem fqr new facilities.
RCRA prohibits a new facility from
commencing operations (i.e., treating,
storing or disposing of hazardous waste)
until a final RCRA permit is issued. In
addition, under EPA's May 19,1980,
hazardous wjaste regulations, no new
land disposal facilities can begin
construction Until they have been issued
a RCRA permit. See § 122.22(b), as
amended by 45 FR 2344 (January 9,
1981). This means that if EPA took no
further action beyond its planned
promulgation of detailed regulations by
the beginning of next year, no new.
hazardous waste land disposal facilities
could commence construction.or
operations until mid-1982 at the earliest
This moratorium on the construction
and operation of new land disposal
facilities is likely to have adverse
repercussions for thejsafe and .',.'.
environmentally sound disposal of
hazardous waste. A November 1980 EPA
report 3 indicates that our nation faces a
sensitive period regarding its capability
to safely manage all the hazardous
waste it produces. The report indicates
that although many large areas of the
country appear to have sufficient ,
commercial off-site waste management
capacity for 1,981, several areas—-New
England, the Midwest, the Plains, the
Rocky Mountains and the Pacific
Northwest (EPA Regions I, V> VH, VIII,
and X)—do not. The total 1981 off-site
capacity shortfall in these five areas
could be more than 1.4 million wet
metric tons (WMT), or over 30% of the
total volume of waste~ generators in
these regions may want to send to
commercial facilities.
Importantly^, these findings are based
on the assumption that the percentage of
wastes historically managed on-site will
remain constant and that existing off-
site commercial facilities will not close.
The assumption that the percentage of
wastes managed pn-site will remain
constant will be less valid if there is a
moratorium on permitting new facilities,
because new industrial operations,
which are estimated to account for
about 1.5 million WMT of the 1981
waste volume, would have to rely
primarily on off-site commercial
3 Booz, Allen & Hamilton, Inc. and Putnam; Hayes
.& Bartlett, Inc., Hazardous Waste Generation and
Commercial Hazardous Waste Management
Capacity-Ari 'Assessment, November 1980.
facilities to manage their wastes.4This
would be a significant departure from
industry's existing practice of managing
nearly 80% of its hazardous waste on-
site, with most of it being disposed of in
landfills and surface impoundments.
Similarly, the assumption that existing
sites will not close may prove to be
. incorrect. Some existing sites are
presently encountering major public and
governmental opposition to their
continued operation. In the short time
since the hazardous waste management
industry was surveyed for EPA's report,
at least eight of the 127 commercial
hazardous waste .management facilities
identified in the report have closed
down or stopped receiving hazardous
, waste. In California (Region IX) alone,
four of its thirteen facilities have
stopped receiving hazardous, waste,
creating capacity problems in the
southern part of the State. In Texas
(Region VI), two of its twelve facilities
have closed (although this does not
appear to have significantly reduced :
capacity in the Southwest). In Colorado
(Region VIIl), ongoing efforts to close
down the state's only operating
hazardous waste landfill, if successful,
will require persons using that landfill to
transport their wastes an additional
several hundred miles for disposal. ..*;'
In short, the basic assumption
underlying the conclusions in EPA's
'report—that; the status quo will
continue—relay prove to be inaccurate in
certain are^js of the country, particularly
if no hew landfills can be constructed :
for the next one or two years. Thus
actual capacity shortfalls in 1981 could i
be higher and surpluses lower than
predicted. r\
Even in those areas which EPA's :
report identifies as having generally
adequate commercial off-site waste ;
management capacity—the Mid-Atlantic :
States, the South and the Southwest
(EPA Regions H, III, IV, VI and IX)—
generatbrs may encounter waste- "
specific capacity problems. Many waste .
management facilities are limited as to
the types of wastes they can handle.
Although iteppeafs that most wastes
slated for $-site treatment, storage or .,.
. disposal csbijbe managed by more than
one type of facility—e.g., an incinerator, '
a landfill or ^chemical treatment
facility—some generators may discover ;
that their region has limite.d capacity to
handle their specific waste. In-other
cases, generators (particularly
generators oj; very toxic andhard-to-
manage.was'fes such as pesticides,
'.— ; ^—f1' ' ". •"•••• -,• :-.. :
* Existing industrial operations which exhaust
their current on-isite capacity or close on:site
facilities in 1981 iSvill also be relying on commercial
facilities to handle their wastes. ,.• . ,
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12416 Federal Register / Vol. 46. No. 30 /Friday, February 13^1981 /^Rules and Regulations
cyanide \vastes, radioactive "wastes,
polychlorfnated biphenyls (PCBs) and
explosives) may find that facility
operators in their region will not accept
their waste.
To respond to its perceived needs for
additional capacity, the hazardous
waste management industry plans to
increase total off-sitejandfill capacity
by 8.4 million WMT and land treatment
capacity by slightly more than half a
million WMT in 1981. EPA's own
regional survey indicates that industry is
planning on building or substantially
expanding almost 100 on-site and off-
site land disposal facilities in the
immediate future. These two figures are
further evidence of a need for additional
landfills and land treatment facilities in
1981 and 1982.
, The absence of adequate commercial
capacity in local markets may cause
environmental problems. Generators
confronted with capacity shortfalls in
thoir area will face the prospect of
having to haul their waste to adjoining
regions with surplus capacity. The
farther these wastes must be
transported, the greater the statistical
danger of spills. Many generators may
find the transportation costs of this long-
distance disposal prohibitive. Even in
those areas where limited capacity is
available, generators may encounter
rising prices at commercial facilities due
to the demand for their services. As a
result of these higher costs, they may
resort to stockpiling wastes on-site or
illegal disposal practices (e.g., midnight
dumping), This obviously would defeat
the very objectives of EPA's Subtitle C
program.
In short, while we are not on the verge
of a national crisis in hazardous waste
disposal because of off-site capacity
shortfalls, it is clear that there will be
insufficient commercial capacity in
some areas that will increase both costs
and the likelihood of improper disposal.
It would certainly be desirable to
remedy this situation; at a minimum,
EPA believes it should not be allowed to
deteriorate any further.
The moratorium on new land disposal
contraction and operation has
consequences for on-site facilities as
well. Several manufacturing facilities
have advised EPA that they intend to
handle their wastes in on-site landfills
or surface impoundments. The ability to
obtain permits for these facilities in
certain areas, may, in some cases,
influence these companies' decisions
concerning location of their
manufacturing plants. Thus, the
moratorium may not only prevent
companies from building land disposal
*"" liHties, it may delay construction of
the production facilities connected to
them as well.
The Department of Energy has
expressed to EPA its concern that
synfuels plants will have difficulty siting
and constructing production plants and
handling wastes from these plants if
EPA is not able to issue permits to these
facilities during the next several years.
This could have important reprecussions
for the national energy supply.
Finally, the mortorium on the
permitting of new facilities will simply
extend the amount of time during which
hazardous wastes will continue,to b'e
managed at old land disposal facilities.
Although EPA's interim status standards
will help upgrade operating practices at
these facilities, many of them are
improperly sited and poorly constructed
and will therefore continue to pose
hazards to human health and the
environment. The availability of well-
designed, environmentally sound new ,
disposal facilities would help divert
wastes from these old, inadequate sites
and make it easier for states and the
Federal government to close1 them down,
thus reducing the dangers they present.
In short, there are strong reasons of
public policy why permitting of new
hazardous waste facilities should begin
as soon as possible. Some of these are
directly related to the purposes of •
RCRA. These include the need to
provide new hazardous waste disposal
facilities in areas that now lack them so
as to reduce the pressures for improper
disposal, and the need to provide new
facilities in areas where the existing
ones are inadequate to provide a reserve
of disposal capacity that in turn will
make it easier to upgrade or if necessary
close down those existing facilities.
Others reflect other important national
goals, most notably, the need to assure
. that new investment in energy and other
productive facilities is not delayed
simply because a national solid waste
control program has taken longer to
establish than Congress initially
anticipated. "7
The question then becomes whether
RCRA authorizes a, regulatory approach
under which some new disposal
facilities in certain categories can be
permitted, and thus can begin
construction, before detailed regulations
establishing disposal requirements have
been issued and have taken effect. For
the reasons given below, EPA has
concluded that it does.
Section 3004 of RCRA, entitled
"Standards Applicable to Owners and
Operations of Hazardous Waste
Treatment, Storage, and Disposal
Facilities" directs EPA to issue
"regulations * * * establishing * * *
performance standards" in at least .
seven distinct areas for hazardous
waste treatment facilities. Section 3005,
entitled "Permits for Treatment, Storage
or Disposal of Hazardous Waste" picks
up'this theme by stating that permits
may be issued to facilities that comply
"with the requirements of * * * section
3004."
EPA believes that this language
should best be rgad to express a general
Congressional preference for
requirements under Section 3004 that
specify the approach to be taken in
• individual permit proceedings and that
substantially narrow the area within
which the permit writer will be free to
set terms without reference to detailed
national standards.
However, nothing in the text of the
statute compels that result. It requires
only that EPA set national regulations
for permit issuance, and that these then .
be applied to individual permits. Indeed,
when Congress inserted a separate
permit-issuance stage" in the procedure
by which RCRA standards are set for
individual facilities, it presumably
intended that stage to serve an
independent regulatory purpose. Many
of the provisions of Section 3004—for
example, Section 3004(3)—are very
generally worded. It is very unlikely that
any nation-wide regulations
implementing them, could totally
eliminate the need for discretion hi
individual permit proceedings. The
statute appears to contemplate the
exercise of such discretion when it
requires the submission of detailed site-
specific information in a permit "
application, (see Section 3005(b)), and
' when it requires widely advertised
public comment on a proposed permit
(see Section 70Q4(b)(2j).
Given this background, EPA believes
that, though the statute expresses a
distinct preference for regulations under
Section 3004 that provide detailed
binding guidance to permit writers, it
also allows the burden of setting the
precise RCRA requirements that bind a
site to be shifted back and forth
between general regulations under
Section 3004'and site-specific permit
proceedings under Section 3005
according to circumstances.
EPA believes that the public interest
considerations discussed above provide.
a temporary justification for taking an
approach that shifts a high degree of
that burden to individual permit
proceedings, and the regulations
promulgated today embody that
approach.
They also contain a number of
safeguards to make sure that taking this
approach now does not undermine
either the general statutory preference
for detailed national standards, or result
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/Rules afld Regulations 12417
in less .responsible environmental
• regulation than Congress expected when
it expressed a preference for detailed
standards. ••.. '_.'r"-'
To emphasize the interim nature of
these regulations, their lifetime has been
limited. They will be replaced by the
.more detailed standards now being
developed'as soon as feasible.
And while these standards are in
effect, EPA will take steps to assure that
permits issued under them contain the
same depth of analysis and . -
consideration that they would if they
were based on more detailed Section
,. 3004 regulations. In other words, EPA
will aim to create a state of affairs in
which each'individual permit can be
viewed, both procedurally and
substantively, as a site-specific - ' N
• rulemaking under Section. 3004. To the ..'
, .extent this goal can be achieved, EPA
believes,any doubts about the legal
acceptability/of this approach will be
further removed. , . '
The permit-Issuance procedures in
Part 124 already provide the basic
framework for such an approach. They
provide for detailed explanation of the
terms of a draft permit, together with
public comment on it, for an,
administrative record to assist public
comment, and for a final decision
accompanied by a response to
comments. To further heighten the :
procedural similarity to rulemaking, EPA
has provided in these regulations that •
the Administrator will review any
permit decision on request./Finally, as
discussed in more detail below, EPA
will form a special permit writing team.
to assure quality and national
uniformity in these permits, .
Two other consequences of .this
approach need to be mentioned. First,
there may well be limits to the number
of permits EPA can process under this
approach. It is likely to be very costly in
resources, since it requires work that
would normally be done once and for all
in a "national rulemaking to be repeated
in each individual permit proceeding.
Second, as discussed in more detail in •
Section IV below, state permit issuance
under Part 267 will not be authorized.
The program under this Part will depend
so heavily on what is done in individual
permit proceedings that there will be no
practical way to judge whether state
programs, whatever they may look like
on paper, will be "equivalent" to the
Federal program as the statute requires.
However, EPA stands ready to , .
cooperate with states in reviewing
applications and evaluating the terms of
draft permits when it is taking action
; under this Pact.
III. Implementation of These
Regulations .
A. Relationship to Today's Proposed
Requirements for Land Disposal
Facilities ,
•As noted above, on February 5,1981,
EPA proposed permanent permitting
requirements for land-'disposal facilities.
These include facility and performance
standards in Part 264 and permit
application requirements in Part 122.
After considering comments submitted
on the proposal, EPA will issue final
regulations.
The interim permit regulations
promulgated today in Part 267 are
temporary, regulations designed to allow
land disposal facilities to be permitted
.during the interim period wmle the.
Agency considers comments on its
proposed Part 264 requirements and sets
appropriate final requirements. The Part
267 standards .are necessarily much
more general than the proposed 264
standards. .
.A major example of the differences
between the proposed Part 264 approach
and the more general Part 267 approach
is their differing approach to setting of
performance standards. Proposed Part
264.very specifically requires numerical
risk analyses. In particular, it sets '
concentration limits-for many
contaminants, and it specifies the .
location where the concentrations must
be measured (at the point of actual or
potential withdrawal for use).
Part 267 does not require the
development of numerical risk analyses,
although such information could be
useful in establishing permit conditions.
Likewise, Part 267 leaves to the permit.
process the decision where to apply any
ground water quality limits-^-e.g., at the
point of initial entry into the saturated
zone, at the facility property boundary,
or at the first downgradient point of use.
Certainly the Part 264 scheme for land
disposal being proposed today could be
used to guide permit decisions.
However, Part 267 does not necessarily
require that the specific analyses and
requirements contemplated in the
proposed Part 264 regulations be
performed for each permit. Depending
on the circumstances, for example, it
may not be possible to await full
development of all the information
required by Part 264 before final action
is taken, on a permit for a new land
disposal facility. Furthermore, the
methodology for assessing whether a
proposed facility would be protective of
human health and the environment may
differ from that proposed in Part 264.
EPA has developed other documents
which should be useful to both permit
applicants and permit writers. These are
four Tecluiical Resource Documents:
Evaluating Cover Systems for Solid and
Hazardous Waste (SW-867); Hydrolqgic
Simulations on Solid Waste Disposal
Sites~(SW-868); Landfill and Surfaces
Impoundment Performance Evaluation
;{SW-269;|; and Lining of Waste
Impoundment and Disposal Facilities
CSW-870;|. See EPA's notice of
availability of drafts of these four
documents in 45 FR 82964>(December 17,
1980), 4 / V ' ' - '.•"•:
• In summary, Part 267 is a generah :
regulation authorizing the issuance of :
permits f<>r new land disposal facilities.
Any available information or mode of
risk analysis may be used, provided that
the resulting requirements protect . ;
human health and;the environment.
B. Permil-JAfriting Assistance Teams
The issuance of permits toland .-, -
, disposal facilities during the initial ,
stages of the RCRA permit program will
be very difficult. The potential for • :
improperly s'ited and designed land ;
disposal facilities to pollute the
environment has aroused concern in
many communities, making the issuance
of permits to. land disposal facilities
highly controversial.
• Many difficult and complex technical.
and policy issues must be addressed in
issuing many of the these permits. Yet,
the interim permitting standards of Part
267 are of necessity quite general,
thereby leaving many of these issues for
resolution in the permitting process.
To assist permit writers, EPA.is
organizing! national teams of Federal
and State personnel and outside ;
. consultant who are experts in issues
relating to land disposal facilities. .
(Similar teams are being organized to ' '
assist permit writers in issuing permits
for incinerators.) These experts will
assist applicants in developing permit
applications and will actively
participate hi the review of data
submitted by permit applicants, the
decisions whether to issue or deny
permits, .and the development of
appropriate conditions when permits are
issued. .,; •' . .
EPA expiects two chief benefits/result
from its use of permit writing assistance .
teams. Firsit, this will bring some of the
Nation's bisst expertise to bear on the '
development of permits, thereby
maximizing protection of human health
and the environment. Second, the teams
will assure that consistent modes of
analysis are used to issue different "
permits, j "
C. State hazardous waste progranjs
Like several other'Federal
environmental statutes, RCRA
authorizes EPA to approve state
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12418
Federal Register / Vol. 46, No. 30 / Friday, February 13, 1981 / Rules ^and^ Regulations
programs. Once approved, these
programs operate in lieu of the Federal
program within their respective
jurisdictions. See Section 3006.
RCRA is unique among the Federal
environmental statutes in providing for
two types of approvals of state
programs: "interim authorization" and
"final authorization". Interim
authorization is a temporary approval
lasting up to 24 months after full Federal
program has been established; it may be
granted to states whose programs are
"substantially equivalent" to the Federal
program. Final authorization is a
permanent approval (subject, of course,
to withdrawal for cuase by EPA); a state
may obtain final authorization by
demonstrating that its program is
"equivalent" to the Federal program, is
"consistent \vith" the Federal program
and other state programs, and provides
adequate enforcement.
By keying interim and final
authorization to the shape of the Federal
hazardous waste program, Congress
sought to use the Federal program both
as a model for the development of the
state programs and a "minimum
standard" for their approval. H.R. Rep.
No. 94-1419, 94th Cong., Zd Sess. at 29
(1978). In tills way, it hoped to
materially upgrade existing state
programs (whose inadequacy was one
of the factors leading to RCRA's
enactment) and to assure some degree
of uniformity and consistency in
hazardous waste management
standards from state to state. Id. at 30.
Although EPA recognized at the time
its May 19,1980, hazardous waste
regulations were issued that they would
require fine tuning over time (and in fact
they have been amended in several
respects to date), they were, in EPA's
opinion, sufficiently "final" and specific
that they could serve as a model and
"minimum standard" for State programs.
For these reasons, EPA's regulations
provided that States could obtain
interim authorization based on those
regulations as early as their effective
date. See §§ 123.121,123.122,123.128.
Similarly, while EPA also
contemplates future modifications to its
permitling standards for hazardous
waste storage/treatment facilities '
(published on January 12,1981, at 46 FR
2802) and for hazardous waste
incinerators (published on January 23,
1981 at 48 FR 7666), it believes that those
standards, too, can serve as a model for
the development and approval of State
programs. Therefore, as discussed
below. EPA expects to begin authorizing
State hazardous waste permitting
programs for these classes of facilities
as soon as the storage and incinerator
regulations become effective.
Unlike the final permitting standards
issued for storage facilities and
incinerators, today's interim permitting
regulations for land disposal facilities
cannot serve as the basis for the .
development and approval of State
programs.
First, they are not permanent
standards; they will be effective only for
at most eighteen months. EPA's final
fand disposal regulations are not likely
to be simply a fine tuning of these .
standards. They may look entirely
different and impose very different
requirements.
Second, today's regulations are not
(and are not intended to be) a "model"
Federal program. They are, rather,
requirements designed to provide a
minimum regulatory framework for
issuing Federal permits to new land
disposal facilities until mpre detailed
standards can be developed.
Finally, today's regulations do not
provide a good yardstick for evaluating
State programs for interim or final
authorization. Although they include
broad standards for decision making
and factors to be considered in
determining whether those standards
have been met, they do not specify how
risks should be defined, assessed and
minimized. Nor do they contain specific
design standards; they describe the
general elements commonly associated
with land disposal facilities and require
the applicant to demonstrate that the -
design will protect human health and
the environment. -.
For States which adopt EPA's
regulations verbatim, the "substantial
equivalency" of the state program will
depend to a great extent on how the
permit writer's discretion is exercised. It
will therefore be largely impossible to
determine in advance whether a state's
regulations are substantially equivalent
to Part 267 and thus sufficient for the
state to be granted interim ' .
authorization. Thus approval of state
regulations as substantially equivalent
to Part 267 would become possible, if at
all, only in retrospect by comparing
EPA-issued permits to state-issued
permits to determine whether they are
substantially equivalent. Indeed.'since
there will be no specific standards for a
state's permits to be substantially
equivalent to, there will be no basis to
judge whether these permits are
substantially equivalent. For example, if
a state permit requires containment of
waste for 200 years plus ongoing
monitoring showing that hazardous -
constituents do not exceed level 2x at
• point y, while a federal permit in
another state with similar
hydrogeological and other factors
requires no containment but requires
that the level of constituents not exceed
x at point y, are the permits
"equivalent"? The Part 267 standards
are too general to provide a definitive
answer.
Similar problems will result if a state
adopts specific performance and design •
standards. Again, these must be
compared for substantial equivalency
against the general Part 267, resulting in
the same difficulty of analysis as
described in the preceding example.
Beginning the process for
authorization of state programs for ,
permitting land disposal facilities based
on today's regulations would result in
considerable duplication'of effort at the
state and Federal level. States would no
sooner amend their statutes and
regulations to conform to the land
disposal standards issued today than
they would have to begin modifying
them to bring them into line with the
standards which EPA anticipates
promulgating early in 1982. Similarly,
EPA would spend substantial time
reviewing and approving state interim
permitting regulations over the next year
only to have to start the process all over
again when its final land disposal
standards are issued. These efforts
would divert state and Federal
resources from the more impprtant task
of issuing permits to new facilities and •
developing state permitting programs for
storage/treatment facilities and
incinerators.
For these reasons, EPA does not think
it would carry out the intent of RCRA or
make much sense as a practical matter
to begin authorizing state programs to
• permit land disposal facilities under Part
267. As noted above, however, the ,.
Agency does believe "that its recently
issued standards for tanks, surface
impoundments, containers, piles and
incinerators do provide the necessary
foundation for approving state.
permitting programs for those facilities.
Rather than delay the authorization of
any state permitting programs until EPA
has issued final regulations for all types
of hazardous waste management
facilities, EPA has decided that it would
be more consistent with. Congress'
objective that qualified states take
formal responsibility for the nation's
hazardous waste program as soon as ,
possible to allow states to obtain
interim authorization now for those
permitting programs for which there is a
Federal "model". In addition, the prompt
authorization of state programs will
pour more resources into the nation's
permitting efforts, increasing the speed
with which new facilities can commence
operations and existing facilities can be
upgraded or closed. •• • . .
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12419
Although EPA will not authorize
states to implement Part 267, it
anticipates that states will be
significantly involved in the approval of
land disposal facilities during the ";.•
eighteen-month period in which Part 267
is effective. First, states continue to '
have authority over the siting of land
disposal facilities. Second, states may
•(and many do) permit land disposal
facilities independent of the RCRA
permitting process. Third, where a state
permits new land disposal facilities,
EPA will coordinate its procedures
(including any public hearings] with the
state's procedures to the maximum
extent practicable. Finally and most
important, EPA intends in all cases to
solicit the state's comments on
applications and draft permits to assist
us in deciding whether to issue a permit
and, if so, to determining appropriate '
standards for the facility.
In issuing the May 19,1980,
promulgation of Part 123 [approval of
State programs), EPA anticipated issuing
standards suitable for authorizing
permitting programs for all types of
hazardous waste facilities by the end of
1980. Thus the Part 123 regulations .
"provided for.iriterim authorization in
two phases—Phase I (based on the May
19,1980, regulations) and Phase R
(based on the regulations expected to be
promulgated in fall 1980).in addition,
the schedules for filing application for
interim and final authorization and for
obtaining final authorization are keyed
to the promulgation date of the Phase H
standards.
As explained above, Phase ft
standards for land disposal facilities
will be promulgated at a later time than
other Phase H standards so that changes
to the schedule for authorizing State
programs is necessary. Elsewhere in
today's Federal Register, EPA has
promulgated regulations to effect these
changes in Part 123. These regulations
allow States to obtain interim •
authorization to implement those Phase
II standards which have already been
promulgated in Part 264.
IV. Section by Section Analysis
A. Subpatt A. Subpart A sets forth the
.general scope of the Part 267 standards.
It also contains specific requirements
that apply to all land disposal facilities
covered by Part 267.
1. Scope of Part 267. As discussed in
Part II of this preamble, Part 267 is a
temporary regulation designed to '
respond to the immediate need for new,
environmentally acceptable land
disposal facilities. Its scope is limited
accordingly.
First, Part 267 covers only new
facilities. Since the major purposes of
the regulation are to allow an increase
hi environmentally acceptable land
disposal capacity and to allow the
operation of new energy and other
facilities requiring on-site disposal,
limitation of Part 267 to new land ,
disposal facilities is appropriate.
Second, Part 267 covers only four
types of land disposal facilities:
landfills,, surface impoundments, land
treatment facilities and those
underground injection wells which are
classified as Class I under 40 CFR
122.32(a). It does not cover waste pilesr
used for disposal. New waste pile
facilities may be designed and permitted
as storage facilities under 40 CFR Part
264 Subpart L (46 FR 2802, January 12,
1981). Part 267 also does not apply to
Class IV.injection wells. The Agency-is
unaware of any emergency demand'for
new Class IV wells. (Class I wells are in
-demand in certain areas to dispose of
highly toxic waste. See Hazardous
Waste Generation and Commercial
Hazardous Waste Management '
Capacity—An Assessment, at p.V-19 for
off-site estimates.)
Third, the duration of Part 267 is
limited. As provided in § 267.3 (and as
explained in section A(3) of this
preamble), Part 267 wiU be used to issue
permits for at mos.t eighteen months.
This limitation again reflects the limited
purpose of Part 267: to provide a
temporary permitting system for new
environmentally acceptable land
disposal facilities during the brief period
preceding promulgation of permanent
Part 264 standards for these facilities.
These are some specific land disposal
activities which are for a variety of
reasons not covered by Part 267. These
exceptions, patterned after similar ones
in Part 264 and Part 265, are listed in
§ 267;i(c) and explained below:
• a. Part 267 does not cover persons
who are disposing of hazardous waste
by means of ocean disposal and are
subject to a permit issued under the
Marine Protection, Research and
Sanctuaries Act. The requirements of
this Part are applicable to such persons
only to the extent they are included in a
RCRA permit by rule granted to such a
person under Part 122 of this Chapter.
The rationale for this provision is •
discussed in the May 19,1980 preambles
to the Consolidated Permit Regulations
(45 FR 33325) and to the Part 264
standards (45 FR 33171). It should be
noted that the permit by rule, contained
in § 122.26(a), given to those subject to
ocean dumping permits does not
currently include Part 267 standards.
However, it does include Part 264
standards which would otherwise be
applicable to facilities covered by this
Part, and EPAcould eventually add Part
267 provis ons to § 122.26(a). The
principal reason for including this
provision in Part 267 at this time is to
clarify the; fact that facilities subject to
ocean dumping permits will be given the
same trealment Under Part 267 as they
currently receive under Part 264.
b. Part 267 applies to persons who are
disposing ipf hazardous waste by means
of underground injection and are subject
to permits issued under the ,."
Underground Injection Control (UIC)
program of the Safe Drinking Water Act
only to the. extent they are not included
in a RCRA-permit by rule under Part 122
of this Chapter. The rationale for this -
.provision is discussed in the May 19,
1980 preambles to the Consolidated
Permit Regulations (45 FR 33326, 33335)
and to Part 264 standards (45 FR 33171).
As with ocean dumping, the RCRA
permit by ifule does not currently include
Part 267 requirements. Thus at this time
the purpose of this provision is to
indicate that underground injection
subject to IShe UIC program will receive
similar treatment under both Parts 264
and 267. j .- .; ' '
c. Part 2617 does not cover owners and
operators of publicly-owned treatment
, works (POTW's) which treat, store or
dispose of hazardous waste except to
the extent Ijhat its requirements are
included in a RCRA permit by rule
granted to isuch a person under Part 122
of this Chapter. The rationale for this
provision id discussed in the May 19,
_1980 preambles to the Consolidated
' Permit Regulations (45 FR 33325) and to
the Part 264 standards (45 FR 33172). As
with ocean disposal and underground'
injection the RCRA permit by ride does
not currency include Part 267
requirements. Thus at this time, the
purpose of this provision is to indicate
that treatment, storage and disposal of
hazardous waste by POTW's will "
receive similar treatment under both
.Parts 264and267.
d. Part 267 does not cover owners or
operators of treatment, storage or
disposal facilities that only manage
hazardous waste from small quantity
generators subject to the requirements
of § 261.5. A similar exclusion is
, contained iis Part 264. For an
explanation of the small generator _
exclusion readers should consult the
preambles to EPA's May 19; 1980
hazardous waste regulations (45 ER
33102) and 1 he November 19,1980
amendment to § 261.5 (45 FR 76620). .
e. .Part 267 does npt cover generators
who temporarily accumulate hazardous
waste on-site, provided that they comply
with § 262.3i4. A similar exclusion is
contained iii Part 264. For an
explanation of the on-site accumulation
provision, readers should consult EPA's
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Federal Register / Vol. 46. No. 30 / Friday. February 13. 1981 / Rules and Regulation^
preambles to the February 26,1980
hazardous waste regulations (45 FR
12730), the May 19,1980 hazardous
waste regulations (45 FR 33141) and the
November 19,1980 amendment to
§262.34 (45 FR 76824).
f. Part 267 does not cover any farmer
who disposes of waste pesticides from
his own use, provided that the farmer
complies with § 262.51. A similar
exclusion is contained in Part 264. For
an explanation of this exclusion one
should consult the preamble to EPA's
February 26,1980 hazardous waste
regulations (45 FR 12732).
g. Part 287 does not cover owners or
operators of facilities that qualify as
totally enclosed treatment facilities, as
defined in § 260.10. A similar exclusion
is contained in Part 264. For an
explanation of this exclusion, readers
should consult the preamble to the May
19,1980 hazardous waste regulations (45
FR 33177).
h. Part 267 does not cover owners or
operators of elementary neutralization
units or wastewater treatment units, as
defined in $260.10 of this Chapter. A
similar exclusion is contained in Part
264. For an explanation of this
exclusion, reader's should consult the
preamble to the November 17,1980
amendments to the hazardous waste
regulations (45 FR 76074).
I. Part 267 does not cover any person
who take's steps to contain or treat a
spill of hazardous waste or material
which, when spilled, becomes a
hazardous waste. A similar exclusion is
contained in Part 264. For an
explanation of this provision, readers
should consult EPA's November 19,1980
amendments to its hazardous waste
regulations.
2. Applicability of Part 264 Standards.
Although specific land disposal
standards have not yet been
promulgated in Part 264, many general
requirements applicable to all permitted
facilities have been. These include
§ 264.18 (Location Standards).
promulgated at 46 FR 2802 (January 12,
1&81); Part 264, Subparts B (General
Facility Standards), C (Preparedness
and Prevention), D (Contingency JPlan
and Emergency Procedures) and E
(Manifest System, Recordkeeping and
Reporting), promulgated at 45 FR
33220—33232 (May 19.1980); and
Subparts G (Closure and Post-Closure)
and H (Financial Responsibility),
promulgated at 46 FR 2802 (January 12,
1981). Section 267.2 incorporates these
requirements by reference. Therefore
any permit issued under Part 267 must,
like any other RCRA permit, reflect all
these general requirements.
3. Duration of Part 267 Standards and
Their Relationship to Permits. As
mentioned previously, the Agency is
limiting the duration of Part 267. The
Agency intends to promulgate Part 264
standards for land disposal facilities in
early 1982. Therefore, § 267.3 provides
that Part 267 will be applicable and
serve as a basis for issuing permits until
the final Part 264 regulations become
effective or until 2 years after today's
date, whichever is sooner.
In thus fashioning the schedule for
phasing out Part 267, EPA is mindful of
section 3010(b) of RCRA, which provides
that hazardous waste regulations
promulgated under Subtitle C of RCRA
take effect six months after •
promulgation. Thus Part 267 will not
take effect until [six months from
publication date]. Since Part 267 will
cease to be applicable as a basis for
issuing permits no later than 2 years
from today, it will be in effect for a
maximum of eighteen months. If the Part
264 land disposal regulations are
promulgated within less than eighteen
months after today's date, so that they
become effective six months later, then
Part 267 will have been the basis for
issuing permits for less than eighteen
months.
Since the Part 267 regulations are of
limited duration and are to be
succeeded by another set of standards,
it is necessary to determine the point in
the permit process when Part 267 ceases
to be applicable as a basis for issuing
permits. The most obvious points to
choose from are the submission of a
complete application, the issuance of a
draft permit or the issuance of a final
permit. ' .
The Agency has decided in § 267.3(b)
that applicants for whom draft permits
have been prepared, for which public
notice has been issued under Part 124,
before Part 267 expires may be issued
permits under Part 267. Where no public
notice of a draft permit has been issued
by that time, no permit will be issued
under Part 267. Rather, a permit will be
issued under the Part 264 standards
which EPA intends to promulgate in
1982.
EPA's selection of the public notice of
a draft permit under Part 267 as the
event that determines whether Part 264
or Pari 267 regulations will apply to the
issuance of the final permit is consistent
with prior EPA actions relating the
phasing in of new requirements to the
public notice of draft permits. See, e.g.,
40 CFR 124.21(e) (45 FR 33492, May 19,
1980) and former 40 CFR 124.135(a) (44
FR 32948, June 7,1979, superseded May
19,1980).
More important, the use of the draft
permit as the dividing line represents
sound policy. By the time EPA prepares
a draft permit, the applicant will have
submitted the relevant information, EPA
will have developed an appropriate
methodology for determining whether
the proposed facility has been designed
and would be operated in a manner that
will protect human health and the
environment, and EPA will have drafted
its conclusions after applying this '
methodology to the facts. Given that the
analysis will have been carried through
to this point, it would be sensible to
continue to use the same methodology to ,
finally issue the permit. If the Part 267
regulation ceased to apply even if a
draft permit were already prepared
under these regulations, it is unlikely
that many owners or operators would
make* the significant commitment of
resources necessary to develop and
submit relevant information to EPA at
.'this time. Owners and operators would
reasonably anticipate that Part 267
might well cease to apply before they
could be issued final permits, thereby
starting anew the entire cycle of permit
application, review and issuance
proceedings under a new set of
standards. Thus, applying Part 267 only
to permits issued in final form prior to
the expiration of Part 267's applicability
to permit issuance would inhibit
development of new environmentally
sound land disposal facilities, contrary
to EPA's intent in promulgating Part 267.
It would also be inappropriate to
apply Part 267 to all permits arising from
applications that have been submitted
prior to the expiration of Part 267's
applicability to permit issuance. If EPA
has not completed its analysis of the
proposed facility by the time Part 267's
applicability expires, it is sensible to use
Part 264 as a basis for assessing the
facility's design and effect on human
health and the environment. Since Part
264 will be more complete and specific
than the Part 267 regulations, it will
probably resolve some of the issues
relating to the proposed facility. Of
course, any information previously
developed and submitted by the
applicant can still be used in issuing the
permit under Part 264, so that the
applicant will have not wasted Its time -
or money in submitting a Part 267 permit
application. In fact, issuance of a permit
under the Part 264 standards should be
speedier than under Part 267 because of
those standards' greater specificity.
Once a public notice of a draft permit
is issued under the Eart 267 regulations,
the final permit will also be issued,
under those regulations. Even after Part
264 regulations are promulgated, any
permit issued under Part 267 will remain
in effect for its stated life (which omay
not exceed ten years, as provided in 40
CFR 122.9(b)). This, again, will
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Federal Register fVol. 46. No. 30 / Friday, February 13. 1981 / Rules and Regulations 12421
encourage new facilities to apply now
for permits'under Part 267, knowing that
these permits will riot be immediately
superseded, rather than to wait for the
issuance of Part 264 regulations before
•applying.
4. Imminent Hazard Action. § 267.4
provides that notwithstanding any other
provision of Part 267, enforcement "
" actions may be brought under section
7003 of RCRA. That section provides
that the EPA Administrator may issue ,
administrative orders or bring suit to
immediately restrain any person
contributing to the disposal or other
handling of hazardous waste which may
present "an imminent and substantial
endangerment to health or the
environment." These actions may be
instituted regardless of whether the
person is complying with Part 267 or any
other RCRA requirement. Part 264
contains a provision parallel to § 267.4.
5. Additional Permit Procedures
Applicable to Part 267, Procedures for
the issuance, modification, revocation..
and reissuance,7arid termination of
permits under Part 267 are set forth in 40
CFR Part 124. (Grounds for permit
modification, revocation and reissuance,
and termination are set forth in 40 CFR
122.15 and 122.16, 45 FR 33428-30, May
19,1980.) In addition, the permitting
provisions of Part 122 apply to permits
issued under Part 267. These two'points
are stated explicitly in § 267.5. '•'"-'.
Section 267.5 contains several
provisions that modify or expand upon
the requirements of Parts 122 and 124. In .
addition to submitting application
information required by § § 122.4 and
122.25, applicants are required by §267.5
to submit enough information to
demonstrate compliance with the
applicable performance/design
requirements. Due to the general nature
of the performance/design requirements
of Subpart C-F in these temporary
regulations, specific application
requirements could not be developed.
Applicants should contact EPA to
, discuss appropriate application
information. EPA intends to work
closely with applicants to specify
reasonable application requirements as
expeditiously as" possible.
Section 267.5 also contains certain
procedural provisions designed to
assure that permits issued under Part
267 meet a high standard of quality. .,-
Facilities issued permits under Part 267
will automatically be designated ,
"major" facilities. Since § 12418. requires
EPA to propose a fact sheet whenever it'
' issues a draft permit to a major facility,
EPA will prepare a fact sheet for .each
draft permit issued under Part 267.
Section 267.5 further requires fact sheets
for Part 267 draft permits to be even
. more detailed than standard fact sheets,
which must already be fairly detailed.
Fact sheets for Part 267 draft permits
must reflect the consideration of factors ;
required by Subparts G-G of Part 267.
For example, § 267.21 (General Design
Requirements for Landfills) requires that
landfills include liner systems designed
to protect human health and the
environment and that the design "reflect
a consideration" of six factors. The fact
sheet for a draft permit issued for a
landfill must show how each of those six
factors was considered and how the
requirements in the draft permit reflect
the considerations. '
Section 267.5 contains one other "
provision to assure careful scrutiny of
each permit application. Currently,
§ 124.19 allows any person who filed .
comments on a draft permit or
participated in a public hearing to
petition the EPA Administrator to
review any permit condition. § 124.125
•allows persons participating in non-
adversary panel procedures under Part
124 Subpart F to appeal the
recommended decision to the EPA
Administrator. Section 267.5(a)(2)
provides that the Administrator "shall
accept" any such petition or appeal to
review permits issued under Part 267.
This will assure the highest level EPA
review of these permits.
The requirement of fact sheets for
draft permits, the appeal as of right to
the Administrator to review permits,
and the assistance of a national team of
experts throughout the proceedings are
all designed to focus attention by both
the Agency and other interested parties
on each Part 267 permit application. This
will increase the quality of the decisions
made in issuing permits urider Part 267.
B. Environmental Performance .Standard'
The Part 267 standards for new
hazardous waste landfill, surface
impoundment, land treatment and Class
I underground injection facilities rely
heavily on performance standards. At
the center of the regulatory scheme is
the environmental performance
standard set forth in Subpart B. Section
3004 requires that the standards
applicable to-owners and operators of
hazardous waste treatment, storage and
disposal facilities be those "necessary to
protect human health and the
environment." In § 267.10 EPA has
translated this general objective into a
set of more specific goals that will guide
consideration of permit applications.
Four general sets of concerns are -»
identified in § 267.10-^ground water,
surface water, air quality and
subsurface migration. While these do
not exhaust all possible environmental
concerns for hazardous waste
management facilities, they do represent
,the principal concerns and should be.
, adequate to guide permit decisions in •".'
most situations. Of course, where
. necessary to protect human health and
the environment, § 267.10 contemplates
that the Regional Administrator could
identify and investigate additional
environmental impacts.
EPA doesi not view § 267.10 as a
provision that will apply directly to
owners and operators of landfill, surface
impoundment, land treatment .and Class
I underground injection facilities.
Rather, § 267.10 provides a general set
of objectives that will guide EPA, the
permit applicant, and the public in
evaluating liie acceptability of these
facilities. .The broad outlines of the
owner or operator's permit application
are determined by reference to the other
Subparts of Part 267, which identify the
-basic design and operational
components that should be present in a
permitted facility. (As discussed later,
EPA may waive some of those
components under appropriate
circumstances.) While Subparts C, D, E,
F and G of Part.267 set forth the general
design and operational components of
the facility, the specific contents of the
permit application will depend on site-
specific factors and their relationship to
the objectives identified in § 267.10.
For example, Subpart C requires that
all landfills include liners. However, the
particular design of a liner will depend
on its function in the permit applicant's
ground wateir; protection scheme.
Depending on the waste in the facility,
the liner may be used as a filter
mechanism which captures or degrades
the various constituents at different
rates. For example, a clay liner may
immobilize certain heavy metals to a
significant degree while allowing other,,
possibly less significant constituents, to
eventually pass through, hi other
situations, it may be appropriate to view
the liner as a barrier that,precludes any
migration of constituents from the
facility while .ui-situ treatment is ,
occurring at ,the facility. Although both
situations require some type of liner, the
specifications for the liner will require
consideration of the risks presented by
the waste in; the facility and the
development of a ground water
protection approach for the facility in
that environment.
Thus EPA anticipates that § 267.10
will be used to guide the owner or •
operator in preparing the permit
application and the EPA and the public
in evaluating the facility. While detailed
analyses of i 11 of the factors identified
in § 267.10 would certainly assist the
; evaluator of the permit; it will not
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12422 Federal Register / Vol. 46. No. 30 / Friday.
always be necessary for the permit
applicant to explicitly analyze each
factor. The considerations identified in
§ 287.10 will provide a basis for seeking
additional information about the facility
during the permit process, where it
appears that the environmental impact
of the facility could be substantial.
Based on that additional information,
additional conditions may be placed in
the permit,
Section 287.10 identifies four general
sets of concerns that will be examined
in the consideration of land disposal
permits—ground water quality, surface
water quality, air quality and subsurface,
t. migration of waste constituents. Each of
these is discussed in more detail below:
1. Ground-Water. Contamination of
ground-water caused by land disposal is
a major concern under RCRA. Section
267,10(a) therefore provides that
prevention of adverse effects on ground-
water quality is a major component of
protection of human health and the
environment. The regulation provides
that eight factors should be considered
In assessing adverse effects on ground-
water quality.
The first factor is the volume and
physical and chemical characteristics of
the waste itself. The volume of the
waste placed in the facility determines
the maximum amount of waste which
may enter the ground-water (assuming
no attenuation or removal through a
leachate collection system). Relevant
physical and chemical characteristics
determine, among other things, the
toxicity of the waste, the ability of the
waste to be contained or immobilized,
degraded or attenuated in or by certain
types of materials, and the probability of
undesirable reactions taking place
among waste or between wastes and
liners or natural earth materials.
The second and third factors are the
hydrogeological characteristics of the
facility and surrounding land and the
quantity, quality and direction of
ground-water flow. These factors affect
the movement of hazardous waste
constituents in the environment and
thus of crucial importance in assessing
the risks of land disposal.
The foui'th factor is proximity and
withdrawal rates of ground-water users.
While drinking water is probably the
most critical use, other uses, such as
agricultural and industrial, are also of
concern. Clearly, water which may be
contaminated by hazardous waste
leachate and then used presents
significant risks.
The regulation'allows future uses to
bs considered when that is feasible.
Available approaches may include
reference to state ground-water planning
efforts and local land use ordinances or
the use of certain presumptions (e.g.,
assume that the water will be used at
some future time absent evidence to the
contrary).
In addition to ground-water use,
migration of hazardous constituents
through the ground-water is also of
concern. Migration is separately
addressed in § 267.10(d).
The fifth factor focuses on the existing
ground-water quality including other
sources of contamination. This factor .is
relevant to predicting future uses of the
ground-water as well as to determining
the incremental risk posed by the new
facility.
The sixth and seventh factors are the
potential for human health risks and the
damage to wildlife, crops, vegetation
and physical structures caused by
exposure to wastes constituents. These
factors depend on the concentration,
quantities and toxjcities of the
hazardous waste constituents which
ultimately reach a point of use.
The final factor required by the
regulations to be considered in
* evaluating ground-water impacts is the
persistence and permanence of the
potential adverse effects. Most of the
wastes which have been and will be
identified or listed as hazardous are
likely to present significant risk's for
many years (in some cases forever, such
as in the case of heavy metals) and thus
to continue to pose the threat of
irreversible degradation of ground-water
long after their deposition. Therefore,
the length of time for which protection
can be assured will be a critical
consideration in evaluating the
adequacy of a facility's design and
operation. This issue, which should be
examined in conjunction with the waste
characteristics and patterns of ground-
water use, will be evaluated in the
' context of each permit.
2. Surface Water. Section 267.10(b)
emphasizes the importance of
preventing adverse effects on' surface
waters. Many of the same factors that
influence ground water protection, are
significant for surface water. Therefore,
many of the, factors listed in § 267.10(b)
parallel those in § 267.10(a).
The volume and the characteristics of
the waste in the facility is the first factor
to be evaluated. Since surface waters
may be contaminated by migration of
waste constituents through
hydrologically-connected ground water,
the second and third factors require
considerations of the hydrogeology of
the area as well as the characteristics of
ground water, including its flow
patterns.
Surface water may be contaminated
by runoff .from the facility. Therefore
evaluation of rainfall patterns in the
area is the fourth factor which must be
considered. (Topography, which is
relevant to runoff, must be evaluated as
part'of the consideration of
hydrogeology.)
Patterns of surface water use,
proximity of the surface water, to the
facility, and existing water quality are
factors which must be considered.
Assessment of surface water effects are
aided by water quality standards
programs which have been developed
by the States in cooperation with EPA.
Such standards provide numerical and
narrative criteria, tied to particular uses
established for particular water bodies,
that should guide EPA, permit
applicants, and the public in evaluating
the acceptability of disposal facilities.
Risks for human health, wildlife,
crops, vegetation and physical
structures presented by waste
constituents in surface waters must be
assessed just like those presented in
ground-waters. The persistence of the
potential adverse effects must be
analyzed here, although surface water
impacts are less likely to be as long-.
lasting or irreversible as those affecting
ground water.
3. Air. Prevention of adverse effects
on ah- quality is commonly thought of a§
a concern Identified with such activities
as incineration. The land disposal
facilities regulated under this Part may,
however, have significant effects on the
air. Land treatment facilities, for -
example, typically leave wastes
exposed to the air. Depending on the
waste and the weather conditions in the
area, waste constituents may be
dispersed by the wind. Likewise, surface
impoundments used lor treatment of
certain wastewaters may contain
wastes or constituents that volatilize
1 'and enter the atmosphere. Also, under
certain circumstances, chemical
processes taking place in a landfill may
produce toxic or explosive gases that
ar6 emitted into the air.
Adverse effects on air quality are
similar in many respects to other forms
of environmental degradation. Thus, as
for ground and surface water, the nature
of the waste (including its potential for
volatilization and wind dispersal) and
the cumulative impact of other sources
of air pollution must be considered here.
The regulations in.,this Part anticipate
that some consideration will be given" to
the full range of adverse effects which
can be caused by air emissions. Human
health effects due to inhalation of
constituents is of greatest significance
and should be considered in all
circumstances. Other adverse effects
from air pollution are also worth
examining. Deposition of waste
constituents from the air can cause
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30 / Friday, Febmary 13, 1981 /Rules 'and Regulations 12423
damage to wildlife, crops, vegetation
and physical structures (e.g., buildings),
and these should be considered as well.
. EPA's air'pollution programs may also
provide useful guidance on the question
of acceptable risk. For example, some
measures developed .to control fugitive
. emissions from asbestos piles and some
of the Section 112 hazardous pollutant
limitations could be applicable to some
land disposal activities. - -
4. Subsurface Migration. Subsurface
migration-of wastes is a distinct form of
environmental degradation apart from
contamination of ground-water which is
* subsequently drawn for use. The tragedy
, of Love Canal provides a classic
example. There waste constituents
migrated from the landfill area through
the unsaturated zone (whicli lies above
the ground-water)'and into the
basements of nearby residential homes.
Direct human exposure resulted from
physical contact with waste and
inhalation of volatile contaminants as
well from ingestion of contaminated
water. The potential adverse effects of
subsurface migration of waste
constituents must be considered in
addition to any direct effects of such
migration on surface water and ground-
water. However, many of the same
factors considered with respect to
surface and ground^water must also be
considered here.
Both the saturated and unsaturated
zone must be considered in evaluating
the potential for subsurface migration.
This will require some knowledge about
the characteristics of both the waste hi
the facility (e.g., liquid vs. solid) and the
geology of the surrounding area. The
patterns of land use in the area,
including proximity to residential
buildings, are particularly important
here, as illustrated in the example
above. In particular, the potential for
migration of waste constituents into
subsurface physical structures is a
factor which must be considered.
Another type of harm from subsurface
migration can occur when waste
constituents migrate into the root zone
of crops and other vegetation.
Depending on the constituents (e.g.,
heavy .metals) phytotoxicity may occur.
In addition, the roots may take up
certain constituents that could
contaminate the crop and make it unfit
for use in the human food-chain. For
example, EPA has substantial evidence'
to indicate that high levels of cadmium,
a substance that can cause kidney
damage at high exposure levels, can be
readily absorbed by leafy vegetables.
This problem can be particularly
significant at land treatment facilities '
that grow crops in the area where waste
has been applied. There the root zone of
the crop coincides directly with the area
receiving waste. Therfore, potential for-
migration of waste constituents into the
root zone of food-chain crops and other
vegetation must be considered.
While the essential inquiry hi
evaluating new land disposal facilities
xvill be the acceptability of the facility in
protecting human health and the
environment, EPA believes that ,
potential applicants should consider
managing hazardous waste in a manner
that avoids the necessity of land
disposal. As EPA examines the problem
of hazardous waste management
generally, it is becoming increasingly
convinced that the long-range potential
for migration of wastes, from even the
good facilities argues for a long-term
strategy that involves phasing out land
disposal. However, land disposal •
remains a necessary option for certain
types of hazardous waste at the present
time. *'-''.'"'.. ,-
Those who manage hazardous waste
Should at least consider other options
(e.g., treatment, recycling and reuse,
incineration, and elimination of
materials that generate hazardous
waste) before seeking to use land
disposal. Such an approach represents
sound planning to avoid the long-term
responsibility and legal liability (not all
of which can be eliminated by
complying with a RCRA permit) that
will be associated with land disposal in
the future.
C. Landfills
Subpart C of Part 267 sets forth the
general design and operation
requirements that will, apply to new
hazardous waste landfills. This Subpart
is designed to guide the preparation of a
.permit. The permit applicant will
present an application .that contains a
proposed design and operating plan that
includes the elements contained in this
-Subpart. (Where appropriate, the permit
application may also provide a
justification for any requests for waivers-
sought by the facility owner or operator
where .necessary to allow treatment to
occur.) In justifying the particular'design
and operating plan proposed for the .
facility, the .permit application will have •
to reflect a specific examination of the
factors included in this Subpart. Finally,
the permit .applicant will be .required to
demonstrate how the facility achieves
the objectives identified in § 267.10.
Where appropriate, the applicant may
provide or EPA may require specific
consideration of one or more of the
factors identified hi § 267.10. EPA
anticipates that the same general
approach will be used to implement
Subparts D, E, F and G as well.
The first design requirements for
landfills is a liner, for example, a liner
may be us$d as a gross filter for certain
" constituents. Likewise a liner may be
used, as it has traditionally, as a barrier
that contains the waste completely for
some period of time. Generally, this liner
requirement will involve the -
emplacement of material into the
ground. Under appropriate conditions, it
might be possible to consider the natural
material which underh'es.the facility as
being part of the liner design.
The amount of leachate that will be
generated: in the landfill is of critical
importance in assessing the adequacy of
a liner design. This must uivolve a
consideration of the waste type (e.g.,
liquid content, biodegradability, -."'--'
solubility,; migratory potential), the
volume of waste, and climatic
conditions in the area (e.g., rainfall.)
. In assessing the potential performance
of the liner, the characteristics of the
liner material must be examined. The
permeability of the liner material is a
central concern. Thickness,
susceptibility to cracking or tearing,
resistance to adverse weather
cdnditionsi and other such factors will be
importantfor all liners. For earthen _
liners, the' compaction density and ' ~
moisture content of the material is also
significant For synthetic membrane
liners, longevity (based on degradability
and resistance to wear) is significant.
The preissures placed on the -liner
should be examined by the applicant in
conjunction With his assessment of the
liner material. Thus factors such as the
pressure head of leachate on the liner,
the properties of the underlying spil (e.g.,
ability to sjupport the liner, presence of
sharp materials) and the potential for
damage totthe liner during installation
should also be considered.
Under § 267.21(b), all landfills must ,
have some kind of leachate and runoff
control system. The facility may have
one system that controls both types of
liquid or separate systems. The selection
of a partic'iilar approach*will depend on
the relative quality of leachate and
runoff at the facility and on-how these
two liquids will be managed. ,
The regulations in this Subpart do not
specifically require run-on controls.
Such a design measure has the ...
significant advantage of avoiding any
contact of run-on water with waste
constituents and therefore will typically
be a desirable design feature. However,
EPA is willing to examine during the
permit process alternative schemes that
provide for control of leachate and
contaminated runoff after it is produced.
Spme of the key factors in assessing
the adequacy of a leachate and runoff
control system are those that influence
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12424 Federal Register / Vol. 46. No. 30 / Friday. February 13. 1981 / Rules and Regulation^
the volume of leachate and
contaminated runoff produced at the
facility. This will be determined by the
characteristics of the waste, particularly
the potential for solubilizing waste
constituents in water, and climatic
conditions such as rainfall.
Another important factor is the
quality of contaminated runoff or
leachato and its implications for
management of those liquids. Depending
on the level of contamination, it may be
necessary, and legally required, to
carefully manage the liquids. This will
influence the design of the facility
because it affects the amount of
contaminated liquid which the permitted
design should allow to be produced. For
example, if it appears that runoff from a
facility will be highly contaminated, the
facility may need to include run-on
controls. If the runoff from the facility is
unlikely to be highly contaminated,
perhaps because of the facility slope or
the operational practices of the owner or
operator, then an alternative design may
be acceptable. If the permit applicant
Intends to discharge collected leachate
or runoff to surface waters, the effect of
that discharge or attainment of water
quality standards in the receiving water
as well as any potential responsibility
under the Clean Water Act (e.g., NPDES
permit conditions) should be considered.
Of course, any leachate or runoff which
qualifies aa a hazardous waste must be
managed in accordance with the
hazardous waste regulations.
The general operating requirements
for new hazardous waste landfills are
set forth in § 267.22 of this Subpart. This
section requires that incompatible
wastes, as defined in § 260.10, and
incompatible wastes and materials, not
be placed In the same landfill unless
§ 204.17(b) (which contains precautions
to prevent ignitions and reactions) is
complied with- A similar provision is
contained In the Part 265 interim status
standards for land disposal facilities
and in the Part 264 standards recently
issued for storage facilities. This is a
"good practice" measure which is
justified by the same arguments
supporting its use in Parts 265 and 264.
The Part 267 provision has been
modified somewhat to indicate clearly
that the waste analysis plan required by
§ 264.13 must include the analysis
needed to comply with § 267.22(a).
The regulations also make clear that
any emplaced liner must be installed in
a manner that will protect the function
and physical integrity of the liner. For
example, the owner or operator must
assure that the installation process does
not cause rips or tears in the liner
material and that any seams in the liner
are properly joined.
As indicated in § 267.22(d), a landfill
must be inspected by the owner or
operator at a sufficient frequency to
assure compliance with § 267.10 of this
Part. General inspection requirements
are also set forth in § 264.14 and are
applicable to facilities regulated under
Part 267. The frequency of inspections
and the objects of inspection will
depend on the specific design for the
facility; EPA will determine them on a
permit by permit basis.
The closure and post-closure
requirements for landfills are set forth in
§ 267.33. Subpart G of Part 264, which
applies to new facilities regulated by
this Part, establishes the requirements
for closure and post-closure. The
measures taken to properly close a
landfill and maintain it during the post-
closure period will be set'forth in the
closure and post-closure plans, which
will be incorporated into permits issued
under this Part.
All landfills must use some type of
cover in closing the landfill. The
function and design of the cover will
depend on the applicant's strategy for
complying with § 267.10. The cover may
be used as a means to prevent wind
dispersal and to avoid public contact
with the waste in the landfill. Under
other circumstances it may be used as a
barrier designed to keep liquids out of •
the facility to minimize the production of
leachate. Whatever approach is taken,
the development of cover specifications
should be coordinated with the design of
the liner in order to avoid the "bathtub"
effect. This occurs when a relatively
permeable cover is placed over a facility
that has a relatively impermeable liner.
Such a facility may simply fill up with
water and overflow, carrying waste
constituents with it.
The factors that must be considered in
properly closing a landfill are analogous
to those relevant to closure under Part
265. They include characteristics of the
waste (type, amount, mobility, rate of
migration), characteristics of the cover
(material, surface contours, porosity and
permeability, slope, length of run of
-slope, type of vegetation on the cover),
and characteristics of the local
environment (climate, location,
topography, surrounding land use,
geological and soil profiles, surface and
subsurface hydrology.)
A landfill must be maintained in a
manner that complies with § 267.10 of
this Part during the post-closure period.
The relevant factors are essentially the
same as those considered for closure.
An additional factor that is important
during the post-closure period is the'
maintenance of any ground water
monitoring system or leachate and
runoff control system at the facility.
These measures are often necessary
because leachate can continue to be
produced and to migrate long after the
waste is placed in the landfill.
An important element in the
regulation of landfills under Part 267 is
the "treatment waiver" under § 267.24.
Under this provision the Regional
. Administrator may waive any of the
requirements in §§ 267.21, 267.22 and
267.23 where necessary to achieve
treatment of hazardous waste in a
landfill. As indicated earlier in this
preamble, EPA believes that treatment
options should be explored by permit
applicants prior to seeking land disposal
permits. Moreover, EPA expects that
hazardous waste treatment technology
will be undergoing considerable
innovation in the next few years. EPA
does not intend to stifle such innovation
with its land disposal regulations.
Thus, under Part 267, EPA will be
willing to consider modifications to the
basic elements of the landfill
requirements to accomplish a treatment
objective. For example, if an applicant
can demonstrate that the chemical or
physical treatment process that he
intends to trigger inside a landfill would
be impeded by the presence of a cover
at closure, EPA would consider such a
waiver. However, the burden is on the
applicant to demonstrate that any
proposed in-situ treatment technique
will be effective. The applicant must
also demonstrate that, if the treatment
waiver is granted, the landfill will
comply with the environmental
performance standard of. § 267.10.
Under §267.25, the Regional
Administrator may place additional
requirements in permits for new landfills
where necessary to comply with §267.10.
This provision makes it clear that the
other provisions of Subpart C are not ,
exhaustive. Since the range of potential
site-specific circumstances is broad, the
Regional Administrator must retain this
power in order to provide sufficient
flexibility in hazardous waste
permitting. EPA anticipates'that permit
conditions under §267.25 would only.be
imposed after full review of the
applicant's proposed design and
.operating plan.
D. Surface Impoundments
The regulations applicable to new
hazardous waste surface impoundments
are contained in Subpart D of Part 267.
They are quite similar to those required
for landfills. Therefore this preamble
• discussion of Subpart D will address
. those provisions that are unique to
surface impoundments.
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Rules and Regulations . 12425
Readers should consult the discussion
of landfills in this preamble for a
. discussion of overlapping provisions.
The major distinction between surface
£ impoundments and landfills is that
surface impoundments will typically
contain much more liquid than a landfill.
Severalfactors that are common to
these two disposal options will be of
more significance in the case of surface
impoundments because of their larger
amounts of'liquids. For example, the,
pressure head of leachate on a liner in a
surface impoundment is likely to be
greater than that found in a landfill.
Adjustments in the design and operation
of surface impoundments will need to be
made to accommodate this factor.
As a preliminary matter, surface
• impoundments are not necessarily
subject to standards for disposal
"facilities. The may iristead be used as
storage facilities. (Whether used for
disposal or storage, a surface
impoundment can also be used as a
treatment facility). Storage is defined >'~
under these regulations (§260.10) as "the
holding of hazardous waste for a
temporary period, at the end of which
the'hazarddus waste is treated, disposed
of, or stored elsewhere." A disposal
facility is one "at which hazardous
waste is intentionally placed into or, on
any land or water, and at which waste
will remain after closure." When a new
facility will be used as a storage facility,
the substantially different standards set
forth in Subpart K of Part 264 will apply.
(See 46 FR 2802, January 12,1981, for
further explanation of storage under
these regulations and of the
requirements applicable to storage in
surface impoundments.) If a facility is to
be used as a final repository for the
waste and is therefore a disposal
facility, then the regulations in this Part
apply to the facility.
The design requirements for surface
impoundments under §267.31 require a
liner but do not require a leachate and
runoff control system. EPA recognizes
that the installation of a leachate
collection system at a surface
impoundment would generally require a
double liner system.
Such a design feature may not always
be necessary. For example, if the liner is
close to the water table, normal ground
water monitoring might pick up any
significant degradation of the area
below the facility quickly. Moreover
since surface impoundments can be
drained, relatively quick action can be
taken_ to limit degradation. Similar
action with landfills (i.e., removal of the
leachate on the liner) is usually only
feasible with a collection system.
Therefore EPA decided not to require a
leachate control system for all surface
impoundments. EPA will, however, be
examining the need for such a system in
each permit proceeding when evaluating
the permit applicant's overall scheme for
managing liquids at a surface
• impoundment. Where appropriate the
Regional Administrator could require
the installation of a leachate control
system at the facility under authority of
§267.35. '
Similarly no runoff control system is
required. The regulations require that
: the facility be designed to prevent
overtopping. This can be accomplished
by additional diking to provide '
freeboard above the" expected liquid
level at the facility. Controls on inflow
and outflow as well as secondary .
overflow tanks may also be. used to
satisfy this requirement. Since such
measures avoid "runoff' from the.. '
facility, the only real runoff issue is
whether or not run-on controls are
necessary. As long as a facility satisfies
the overtopping requirement, this type of
control will generally not be necessary.
In some circumstances (e.g., where
rainfall may be heavy and difficult to
anticipate) run-on controls may be
needed to provide a margin of safety.
This issue will be examined during the
permit process, and an additional
requirement for run-on control may be
placed in a permit under §267.35.
The only other design requirement
addressed by §267,31 is diking. Where
dikes are part of the surface
impoundment, the dikes must be
designed to'comply with §267.10..The
.purpose is to maintain the structural
integrity of the dike against catastrophic
failure, and to protect against excessive
seepage through the dike and against
overtopping of the dike. Structural
integrity may be adversely affected by
erosion of the dike, by the effects of
plant roots on earthen dike materials "
and by burrowing animals which create
fissures in the dike. Wind erosion must
also be considered because it can
adversely affect the ability of a facility
to meet the overtopping requirement and
can undermine the dike's structural
integrity. Water erosion, which also
; affects structural integrity, can lead to
excessive-seepage through a dike, and
thus should be considered as well. .
The general operating requirements
for surface impoundments.under §267.32
are patterned after those for landfills.
Thus there are requirements for
incompatible wastes* installation of
liners, operation of leachate and runoff
control systems, and inspections. In
addition, the regulations require that
each surface impoundment be operated
to prevent overtopping due to wind and
wave action, overfilling, precipitation or
any combination' of these factors.-This is
generally [accomplished by the
maintenance of freeboard between the
liquid waste surface and the top of the
impoundment. Careful management of
controls on inflow and outflow devices
as well as secondary overflow tanks are
typical measures for satisfying
requirement. Implementation of this
provision will require setting specific
permit conditions, such as a minimum
freeboard level, based on the general
requirement. , :
The general requirements for closure '
and post-closure at a surface
impoundment also mirror the analogous
provisions for landfills. The factors for
consideration, however, additionally
address the significant free liquids.
problem presented by surface
impoundments. Such free liquids may
eventually leach or otherwise run out of
the facility and present substantial risks
to human health and the environment;
Therefore,! the permit writer must ;.
consider the possibility of requiring the
removal of some portion of the free
•;' liquids in the facility to reduce that risk
and consider the use of absorbent " ••'.'
material in the surface impoundment to
reduce the'risks of leaching. - ;
Removal, of free liquids should be
considered, together with the cover '••
requirement in § 267.33. The cover
requirement for surface impoundments
is based ori the same rationale as the ,
analogous requirements for landfills, As
; a practical matter, free liquids must be
minimized before a cover can
successfully be placed on a surface
impoundment,
A treatment waiver identical to that
for landfills! is available for surface
impoundments under § 267.34. The
decision whether to grant a waiver
depends on the individual
circumstances of each facility and
requires a satisfactory showing that •
treatment, serving the objectives of
§ 267.10, would occur.
Under § 267.35, the Regional
Administrator may place additional :
requirements on owners and operators
of new hazardous waste surface
impoundments, where necessary to
comply with § 267.10.
JS. Land Treatment .
The requirements applicable to new"
hazardous waste land treatment
facilities are set forth in Subpart E of
Part 267. While bearing several
similarities to landfills and surface
impoundments, land treatment facilities
are generally designed to achieve
somewhat different purposes. Land
treatment facilities are designed to use
the'soil as atreatment medium. The'
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12426 Federal Register / Vol. 46. No. 30 /
inlcnt Is to break down the organic
component of the waste" through
chemical and biological processes in the
upper layers of the soil. Since adequate
treatment is expected to occur hi the
upper soil layers, there is generally no
need to design the facility with barriers
above or below the waste. Thus the
design requirements in § 267.41 do not
require a Hner or leachate collection
system at the facility.
Runoff may still be a problem at land
treatment facilities; thus a runoff control
system is included as a design
requirement. Design of the system may
include specific runoff and/or run-on
controls. The factors which must be
considered are the same as those
required for landfills and surface
impoundments.
The general operating requirements
for land treatment facilities under
§ 267.42 include some of the same
requirements applied to landfills and
surface Impoundments. These include
provisions for incompatible wastes,
operation of the runoff control system
and inspections.
Two additional operating provisions
are contained in § 267.42. First, the land
treatment facility must be operated to
treat the waste in the facility to the
extent necessary to comply with
§ 267.10. The success of the land
treatment option depends heavily on
careful management of the waste at the
facility to ensure that treatment occurs.
This may require the use of traditional
farming techniques, such as tilling the
waste/soil mixture and applying lime to
raise pll, in order to aid the treatment
process. Rate and method of application
of the waste to the facility are also
important. The particular management
techniques that will be used at the
facility will need to be considered
during the permit process. Thus EPA
anticipates that more specific
management practices will be developed
us permit conditions based on this
general requirement.
Second, § 287.42(d) contains operating
requirements to handle situations where
owners or operators of land treatment
facilities wish to grow food-chain crops
at the land treatment facility. ["Food-
chain crops" is defined in 40 CFR
260.10). This is a potentially dangerous
practice and will be allowed only after
the fullest possible review. If food-chain
crops are grown at a land treatment
facility, the facility must be operated hi
a manner designed to protect the quality
of those crops to the extent necessary to
comply with § 267.10.
Several factors must be considered .
when food-chain crops will be grown.
The nature of the waste (its chemical,
physical and biological characteristics),
the application rate, the characteristics
of the soil (including its pH, cation
exchange capacity, etc.), and the type of
crop to be grown are important. The
permit writer must examine the
likelihood of plant uptake of waste
constituents as well-as the possible
exposure of field workers who will be
handling the crop and working directly
with the soil/waste mixture to waste
constituents.
The manner in which the crop Is
marketed must also be considered.
Crops used by comme'rcial distributors
are likely to be mixed with crops from •
other fields before they are used by
consumers. The mixing process reduces
the risk of exposure to high levels of
contaminated food. A higher risk
situation is presented where the owner
or operator sells the potentially
contaminated crop directly to .
consumers.
Finally, the potential future uses of the
facility must be considered when food-
chain crops will be grown. Land
treatment facilities used for food-chain
crops are likely to be used to grow crops
even after the facility owner or operator
stops applying waste. This may present
significant risks. For example, if the
facility is used to grow field corn for
animal feed the risks may be acceptable
(since corn does not take up most
hazardous constituents at high levels).
However, if that property is later used
for high-uptake leafy vegetables by an
unknowing or uncaring user, a
significant risk may be created. Such a
risk requires consideration. EPA's
standards for protection of food-chain
crops in the Criteria for Classification of
Solid Waste Disposal Facilities and
Practices (40 CFR Part 257) provide
standards for cadmium and PCB's which
should be useful in assessing risks for
this purpose.
Another unique element of Subpart E
is the requirement for an unsaturated
zone monitoring program in § 267.43.
This monitoring program, which applies
to land treatment facilities in addition to
• the ground water monitoring program of
Subpart F, is required to assure
compliance with § 267.42(c). It will be
used to determine whether the operating
conditions in the permit are adequate to
treat the waste. The monitoring program
must include the installation of an
unsaturated zone monitoring system at
the facility or at a representative test
plot. If a test plot is used, then it is
important that the plot be representative
of the conditions at the facility
(including the soil and climate) and that
the testing procedures be patterned
directly after the waste, the application
rate and the management techniques.
The monitoring system may include soil
core and soil pore monitoring, but the
specifics of the system will be
developed during the permit process.
The key consideration for the
unsaturated zone monitoring system Is
that the wells be placed at proper
locations and drilled to sufficient depths
to obtain a representative sample of the
waste treatment process. *
The procedures for sampling,
analyzing, and evaluating .data obtained
from the monitoring system will be
specified in the permit. Those
procedures will be established based on
a consideration of soil characteristics
(pH, cation exchange capacity, total
organic carbon, permeability and
microbial activity in the soil), the waste
application procedures (frequency, time
and rate of application), climate, and the
potential for rapid migration of waste
cohstitutents through the soil. Another
significant factor", for both the
monitoring system and procedures, is
the accessibility of the monitoring
system devices for maintenance and
repair. Lysimeters, for example, Tnay
become clogged relatively easily and
thus it is important to have such devices
accessible for repair.
The closure and post-closure ,
requirements for land treatment
facilities, contained in § 267.44, are
similar to those required for landfills
and surface impoundments. There is no
requirement for a cover, however,
because land treatment facilities are
designed to treat the waste, and thus
concerns about leachate generation over
time are less severe. The Regional •
Administrator may, of course, require
the placement of a cover over the
facility as an additional'requirement
under § 267.46. Such measures may be
necessary, for example, if wind
dispersal is a significant problem at the
facility.
The factors for consideration in
closure and post-closure plans for land
treatment facilities are generally the
same as those applicable to landfills and
surface impoundments, with a few
minor modifications. In considering
climate in the area, the amount,
frequency and pH of precipitation can
be particularly signficant. A pH change,
for example, could conceivably cause
chemical reactions that reverse
attenuation processes in the soil.
Likewise, in examining geologic and s.oil
profiles, such factors as the pH, cation
exchange capacity and total organic
carbon in the soil could affect the „ .
relative permanence of any treatment
reactions in the soil. Finally, both the
closure and post-closure requirements
should reflect a consideration of
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/ Vol 46, No. O
13 1981 l
>and; Regulations . 12427
unsaturated zone monitoring data, -
. which should reveal whether waste
treatment at the facility is successful, -
' and any ground-water monitoring data. '
Like landfills and surface
• impoundments, the land treatment'.
facility regulations allow for a
"treatment variance" where appropriate.
F, 'Ground-WaterMonitoring
Subp art F sets forth generally the kind
•of ground-water monitoring program .
' which is required at all new landfills,
surface impoundments or land treatment
facilities under § 267.50. Since a ground-
water monitoring program will be,
heavily dependent on the function,
design and operation of a land disposal
facility, the monitoring requirements
must, of necessity, be. generally stated'.
The specifics of the monitoring program
will be fully explored during the permit
proceedings.
It is necessary to have some kind of
monitoring program at new facilities,
however, because once constituents
enter ground-water, such monitoring
provides the only effective means of
trackingJhe progress of the plume; Such,
information is important regardless of
how the facility is designed. If a facility
uses a controlled release approach, for
example, ground water monitoring is the
only effective means of validating
predictions about the impact of the
facility. If a containment approach is
used, ground-water monitoring is
essential in detecting the failure of the
design and in tracking the plume to
assist in remedying the problem.
The.ground water monitoring program
required by this Subpart includes the
ground-water monitoring system itself, .
as well as procedures for sampling,
analyzing and evaluating ground-water
data and taking appropriate response
measure's. The ground-water monitoring
system must be capable of indicating the
facility's impact on ground-water hi the
uppermost aquifer to assure compliance
with § 267.10. The uppermost aquifer is
the focus of the monitoring program in
order to give the earliest possible
detection of a contaminant plume.
Where necessary to track a plume's
progress into other aquifers, the
Regional Administrator may of course
impose additional requirements under
§ 267.53. , - :
The design of the ground-water
monitoring system must be based on a
consideration of several factors. The
placement and depth of the wells must
be aimed at yielding a representative
sample of constituents in the uppermost
aquifer. In order to accurately assess the
impact of the disposal facility, the
monitoring program must account for
background ground-water quality. For
thisireason, the ground-water monitoring
system should be installed at
appropriate locations on both the
downgradient and upgradient sides of
the facility. '
Appropriate design measures should "
.-. also be taken to assure the physical
. integrity of the monitoring well bore .
.. hole/Casing is a.common technique for
accomplishing this goal. Likewise,
design measures must be taken to
prevent contamination of ground water
samples that could bias the monitoring
results. Gravel or sand packing around
ground water sampling points is a
common method for accomplishing this
objective.
The ground-wrater monitoring
procedures required by this Subpart
must be capable of assuring compliance
with § 267.10, The permit will include
procedures for sampling, analyzing and
evaluating ground-water data. These
procedures must involve sample
collection, sample preservation and
shipment, analytical methods, chain of
custody control and evaluation of the
data. The procedures for data evaluation
should consider the use of appropriate
statistical techniques (Student's T test,
Mann-Wbitriey U test) which are best
suitefi to the use of the data in the .
overall ground-water monitoring
strategy for the facility. Whatever '
• techniques are used, the evaluation
procedures must include some
provisions for determining the extent
and rate of migration of waste
constituents: , . * •
The monitoring program inust also
include appropriate procedures for
action when the monitoring program
indicates that the facility is not "
complying with the permit conditions or
that facts assumed to be true when the
conditions were set are not true. While
these response procedures are of critical
significance, it is difficult to elaborate
on their content in Subpart F. Since the
response procedures are closely linked
to the overall ground-water protection
approach for the facility, the specific
procedures needed will have to be "
developed on a permit-by-permit basis.
Any response procedures must be linked
to the general contingency plan
provisions developed to satisfy Subpart
D of Part 264: (incorporated by reference
in §267.2).
G. Underground Injection ;
Subpart G of this Part sets forth the
general requirements applicable to new
hazardous waste underground injection
wells. As indicated in § § 267.1 and
267.60, Part 267 only applies to injection
wells which are classified as Class I
under § 122.32(a) of this Chapter. The
other major type of injection well that
receives hazardous waste are the Class
IV wells, defined under § 122.32(d). The
status of Ithese wells in the RCRA and
UIC program is undergoing further • '
scrutiny within the Agency. The
proposed 264 standards being published
today, for example, reclassify certain of
these facilities as seepage facilities and
provide a complex regulatory approach
for siichlkcilities: Moreover, EPA has no
evidence that there is a pressing need
. for new Class IV wells, particularly
since today's regulations will allow for
permitting of new hazardous waste
landfills, surface impoundments, land,
treatment facilities and Glass I injection
wells. Therefore EPA is not now
including Class IV wells under Part 267.
In issuing RCRA permits for Glass I
underground injection wells, EPA will
be making; every effort to coordinate
such permits with the requirements
established for state programs under the
UIC program. To the fullest extent
possible, -EPA will be using the 40 CFR
Part 146 standards for Class I wells in
issuing RCRA permits.
The requirements for underground
injection virells under Subpart G are
generally stated and thus will require
further elaboration in permits. LJnder
§ 267.61 an injection well must be
designed to comply with § 267.10. The
design must include measures, such as
casing, tubing and packer to prevent the
•escape of fluids to the area above the
zone of injection.
In addition, the injection well must be
operated in a manner that will comply
with § 267,10. In developing those
operating methods in his permit
application, the permit applicant must -.
consider the characteristics of the
waste, the injection pressure and
toeasures designed to detect failure in
the mechanical -integrity of the well.
. At closure, an injection well must be
plugged and sealed. There are no post-
closure responsibilities for Class I
injection wells.
As with all other disposal facilities
regulated tinder Part 267, the Regional
Administrator may place additional
requirements on owners and operators ~~
of Class I injection wells where
necessary to achieve the environmental
performance standards in § 267.10.
V. Effectivi} Date
These regulations will become
effective six months from today (see
Section-3010(b) of RCRA). However,
EPA is prepared to begin working with
permit applicants immediately to help
them develop their applications. In
addition, although the Agency will not •
be issuing any permits under Part 267
until it becomes effective, it will begin
processing permit applications (e.g.,
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12428 Federal Register / Vol. 46, No. 30 / Friday, February 13, 1981 / Rules and
reviewing applications, preparing draft
permits) as soon as they are received.
VI. Interim Final Promulgation
These interim final regulations grow
out of EPA's December 18,1978,
proposed land disposal regulations (43
FR S8982) and its more recent
supplemental proposal (45 FR 66816,
October 8,1980). Although EPA would
like to have obtained additional
comment on these regulations prior to
promulgation, the Agency has
determined, under Section 553 of the
Administrator Procedures Act, 5 U.S.C.
553, that it would not be in the public
interest to do so. The process of going
through another proposal would
probably take at least nine months, and
thus would largely defeat the purpose of
issuing Part 267 in the first place,
discussed at length in Section II, above.
These regulations are being
promulgated in interim final form,
however, which means that, while they
arc "promulgated" for purposes of the
six-month effective date in Section
3010(b) and the 90-day deadline for
filing petitions for review in Se'ction
7000, the Agency will accept comment
on them prior to issuing "final final"
regulations. EPA intends to rectify any
major problems with the regulations
raised by commenters prior to their
effective date.
VII. Economic, Environmental and
Regulatory Impacts
A. Executive Order 12044
Under Executive Order 12044, Federal
agencies are required to prepare a
regulatory analysis for aU new
significant regulations, except in an
emergency or where preparation of a,
regulatory analysis would prevent the
agency from meeting a court or statutory
deadline.
EPA is currently under a court-
ordered deadline to promulgate final
regulations implementing Section 3004 of
RCRA (including land disposal
standards) by the fall of 1980. See State
of Illinois v. Costle, No. 78-1689 (D.D.C.,
December 18,1979). The sheer enormity
and complexity of this task, coupled
with the need to divert attention and
major resources to the implementation
and fine-tuning of EPA's May 19,1980,
hazardous waste program, have already
resulted in the Agency's missing its
deadline by over a month. Preparing a
regulatory analysis on the Part 267
regulations published today would have
further delayed EPA's compliance with
the court's order.
Furthermore, as noted above, EPA's
Part 267 standards are being issued to
meet an immediate need for additional
hazardous waste land disposal capacity.
While they may not rise to the level of
"emergency" regulations, there is a real
need for them to be issued as soon as
possible.
For these reasons, EPA believes that it
is not required to prepare a regulatory
analysis under Executive Order 12044.
Moreover, even if a regulatory analysis
were required, EPA believes it has in
part fulfilled that requirement by its
October 8,1980, solicitation of public
comment on several alternatives for
regulating land disposal facilities. See 45
FR 66816.
The Agency will be preparing a
regulatory analysis to accompany the
proposed Part 264 land disposal
regulations which it is publishing
elsewhere in today's Federal Register. It
is also planning to evaluate the
economic impact of its Part 267
standards as they are implemented. This
information will be useful to EPA in
developing its final land disposal
regulations.
B. The Regulatory Flexibility Act
The Regulatory Flexibility Act
requires all Federal agencies to consider
the effects of their regulation on "small
entities", i.e., small businesses, small
organizations and small governmental
jurisdictions. Section 603 of the Act
directs agencies to propose for public
comment a "regulatory flexibility
analysis" for any regulations which will
cause a significant impact on a
substantial number of small entities.
This analysis must include, among other
things, an estimate of the number of
small entities affected by the regulations
(where feasible), a description of the
reporting and other compliance
requirements imposed on them, and a
description of any alternatives
considered to minimize the economic
impact of the regulations on them.
EPA does not presently believe that
these rules will have significant
economic effect on a substantial number
of small entities. EPA estimates that
only about 25 facilities per year will be
permitted under these regulations
nationwide. Although" there is no way to
know in advance what percentage of
these facilities will be owned by small
entities. EPA esitmates that only about.
25 facilities per year will be permitted
under these regulations nationwide.
" Although there is no way to know in
advance what percentage of these
facilities will be owned by small
entities, EPA anticipates that the large
capital requirements and the technical
complexity involved in establishing safe
and secure land treatment or disposal
facilities will mean that larger entities
will predominate in the field. Therefore,
hi accordance with Section 605(b), no
regulatory flexibility analysis has been
prepared for these regulations.
EPA will re-examine this conclusion
over the next six months; and invites
comment on it together with comment ,
on other aspects of these regulations.
However, it is certain that any economic
impact on small entities, to the extent .
one exists, will.not be adverse. These
rules provide a means for hazardous
waste disposal facilities to open,
operate, and serve customers where
none would have existed before. They
therefore operate to expand, not restrict,
the range of opportunity open to
participants in the economy.
Considering this fact, the fact that the
rules will not even take effect for
another six months, and the public need
for speedy action described above, EPA
believes mat, even if further study
should suggest the need for a regulatory*
flexibility analysis, it is appropriate at
this time to defer preparation of such an
analysis under Section 608.
EPA, within 180 days of the
publication of these rul.es, will either
affirm its conclusion that no regulatory
flexibility analysis is required, or issue
such an analysis.
C. The Federal Reports Act of 1942, as
Amended
Under the Federal Reports Act of
1942, OMB reviews reporting
requirements in forms and regulations
which collect identical information from
more than ten persons in order to
minimize the burden on respondents and
the cost to the Federal Government. For
all new regulations containing such
information requests OMB's procedures
require agencies to estimate the site of
the reporting burden, describe who must
report and apply to OMB for a
clearance.
EPA's Part 267 regulations impose twa
types of reporting requirements: permit
application requirement and reporting
requirements in the permit itself. To the
extent that these requirements •
incorporate EPA's May 19,1980, Part 264
standards by reference, that have
already been cleared by'OMB The
remaining permit application
requirements, although they seek the
same board general categories of
information (e.g., information on how a .
liner will meet the requirements of
§ 267.10), are so site-specific in terms of
the specific information they require and
the reporting burdens they impose that
they are not requests for "identical
information" from more than ten
persons. For this reason, EPA does not
believe that they are subject to OMB
review under the Act.
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3' 1981
and' Regulations 12429
Because OMB, in the course of its
review, often makes good suggestions as
to ways to minimize reporting
requirements, EPA will be voluntarily :
preparing an estimate of the reporting
burden which might be imposed by its
Part 267 regulations and submitting it to
.OMB for its review in the near future. •
Because the Agency does not expect to
be processing more than 30 or 40 permit
applications under these regulations, the
reporting impact of the regulations, on a
national basis, should be minimal.
[Sections 1006, 2002(a), 3004 and 3005 of the
Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. §§ 6905, 6912,
6924 and 6925)
Dated: January 17,1981.
Douglas M Costle
Administrator.
1. Title 40 of the Code of Federal
Regulations is amended by adding the
following new Part 267:
PART 267—INTERIM STANDARDS
FOR OWNERS AND OPERATORS OF
NEW HAZARDOUS WASTE LAND
DISPOSAL FACILITIES
Subpart A—General
Sec. '..-•••'•• •:•- ,";•
267.1 Purpose.; scope and applicability.
267.2 Applicability of Part 264 standards.
267.3 Duration of Part 267 standards and
their relationship to permits.
.267.4, Imminent hazard action:^ ..'..•
267.5 Additional permit procedures
applicable to Part 267. _
267.6 Definitions., " •
Subpart B—Environmental Performance
Standard
267.10 Environmental performance
standard. . -. .. ,-•.:
Subpart C—Landfills
267.20 Applicability. ,'• (
267.21 General design requirejnents.
267.22 -General operating requirements.
267.23 Closure and post-closiae. ~
267.24 Treatment of waste. .
267.25 Additional requirements.
Subpart D—Surface Impoundments
267.30 Applicability.
267.31 . General
267.32 General .operating requirements.
267.33 Closure and post-closure.
267.34 Treatment of waste. -
267,35 'Additional requirements.
Subpart E—Land Treatment
267.40 Applicability.
267.41 General design requirements.
.267.42 General operating requirements.
267.43 Unsaturated zone monitoring.
267.44 Closure and post-closuTe. "
267.45 Treatment of waste.
267.46 Additional requirements.
Subpart F—Ground-Water Monitoring
267.50 Applicability.
Sec. • '-.-:• .'--•_ ,. . -..-..
267.51 Ground:water monitoring system.
267.52 Ground-water monitoring
procedures. „ . .;•
267.53 Additional requirements.
Subpart G—Underground Injection
267.60 Applicability. .
267.61 General design requirements.
267.62 General operating requirements.
267.63 Closure
267.64 Additional requirements.
'. Authority: Sections 1006, 2202(a),~3004 and
3005' of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C.
6905, 6912(a), 6924 and 6925.
Subpart A—General
§267.1 Purpose, scope and applicability.
(a) The purpose of this Part is to
establish minimum national standards.
that define the acceptable management
of hazardous waste for new land
disposal facilities.
(b) The regulations in this Part apply
to owners and operators of new
hazardous waste landfills, surface
impoundments, land treatment facilities
•and Class I underground injection wells
(as defined in § 122.32(g) of this
Chapter) that'require individual RCRA
permits under 40 CFR Part 122.
(c) The requirements of this part do
not apply to:'
(1) A person disposing of hazardous
waste by means of ocean disposal
subject to a RCRA permit by rule issued
under § 122.26(a) of this Chapter.
[2] A person disposing of hazardous
waste by means of underground
injection subject to a RCRA permit by
rule under § 122.26(b) of this Chapter.
(3) An owner or operator of a POTW
subject to a RCRA permit by rule under
i 122.26(c) of this Chapter.
(4). The ,owner ,or operator of a facility
permitted, licensed, or registered by a .
State to manage municipal or industrial •
solid waste, if the only hazardous waste
the facility treats, stores, or disposes of
is excluded from regulation under Parts
262 through 265 and Parts 122 and 124 of
this Chapter by § 261.5 of this Chapter;
(5) The owner or operator of a facility
which treats or stores hazardous waste,
which treatment or storage meets the
criteria in7! 261.6(A) of this Chapter,
except to the extent that § 261.6(b) of
this Chapter provides'otherwise;
(6) A generator accumulating waste
on-site in compliance with § 262,34 of
this Chapter; •
(7) A farmer disposing of waste
pesticides from his own use in
compliance with § 262.'51 of this
Chapter; ... ' .
(8) The owner or operator of a totally •
enclosed treatment facility, as defined in
§ 260.10;
(9) The owner or operator of an -
elementary neutralization unit or, a •'..-;.
wastewater treatment unit as defined in
§ 260.10 of this Chapter. , ' '
(10) Perispns. with respect to those,;
activities that are .carried out to , ,;
immediately contain or treat a spill of ;
hazardous waste or material which,
when spilled, becomes> a hazardous
waste. _/;.-.,, .,,,,.,. '. ' '
§ 267.2 Applicability of Part 264 standards.
.In addition to the standards contained
in this Part, owners and operators of :
new hazardous waste,landfills, surface
impoundments, land treatment facilities
and underground injectiqij wells must
comply with § 264.18 and Subparts B, C,
D, E, GariilHpf;Part264.; ; ' -
§ 267.3 Duration of Part 267 standards and
their relationship-to permits., :
(a) The regulations in this Subpart are
applicable; and will serve as a basis for
issuing permits, to owners or operators
of new hasiardous waste landfills, • f '
surface impoundments, land treatment
facilities, or underground injection
facilities: until final Part 264 regulations
for such facilities become effective or
until Febraary 13,1983, whichever is
earlier. f:: ,'•,"'• , -; -
(b) Onlyithose owners and operators '
of new ha2;ardous waste landfills, . '
•surface impoundments, land treatment
facilities or underground injection wells
who have applied for a permit and for
whom public notice of the preparation of
a draft permit has'been issued under • •
§ 124.10 of this Chapter, by the date final
Part 264 reflations for these facilities
become effective or [2 years after date " •"
of, publication}, whichever is earlier,
may be issued permits under the
. regulations; in this Part.
§267.4 Imminent hazard action.
Notwithstanding any other provisions
of these reflations, enforcement
actions may be brought pursuant to
Section 7003 of RCRA. --'.-.
§267.5 Additional permit procedures
applicable to Part 267.
(a) The procedures for issuance,
modification, revocation arid reissuance, •
and termination of permits under this
Part are sel: forth in Part 124 of this
Chapter. In addition, the fpllowuig
procedures apply to permits under Part
267: -,. ;| , ; ' .-.' .
(1) Any facility for which a draft
permit is prepared pursuant to this Part
is a major hazardous waste management
facility. A fact sheet shall be prepared
for each such facility in accordance'with
§ 124.fi. Instead of the "brief summary of
the basis for the draft permit conditions"
required by § 124.8(b)(4), the fact sheet
shall include a detailed discussion of
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Federal Register / Vol. 46, No. 30 / Friday, February 13, 1981 / Rules and Regulations
basis for the draft permit conditions.
This shall Include a demonstration that
relevant factors listed in Subparts C-G
of this Part were considered and a
showing of how the draft permit reflects
these considerations.
(2) The Administrator shall accept any
petition under § 124.19 of this Chapter
and any appeal under § 124.125 of this
Chapter to review a permit issued under
this Part.
(b) The provisions of Subparts A and
B In Part 122 of this Chapter apply to
permits under Part 287. In addition to
the information required by § 122.4 and
§ 122.25 of this Chapter, the applications
for permits under this Part must include
the following information:
(1) For a landfill, sufficient
information to demonstrate compliance
with Subpnrts C and F of this Part.
(2) For a surface impoundment,
sufficient information to demonstrate
compliance with Subparts D and F of
this Part.
(3) For a land treatment facility,
sufficient information to demonstrate
compliance with Subparts E and F of
this Part.
(4) For an underground injection well,
sufficient information to demonstrate
compliance with Subpart G of this Part.
§ 267.6 Definitions.
Unless otherwise specified in this
Part, terms used in this regulation are
defined in §§ 280.10 and 122.3 of this
Chapter.
Subpart B—Environmental
Performance Standard
1257.10 Environmental performance
standard.
All new landfills, surface
impoundments, land treatment facilities
and underground injection wells shall be
located, designed, constructed, operated,
maintained and closed in a manner that
will assure protection of human health
and the environment. Protection of
human health and the environment shall
include, but not be limited to:
(a) Prevention of adverse effects on
ground-water quality considering:
(1) The volume and physical and
chemical characteristics of the waste in
the facility, including its potential for
migration through soil or through
synthetic liner materials;
(2) The hydrogeological
characteristics of the facility and
surrounding land;
(3) The quantity, quality and
directions of ground-water flow;
(4) The proximity and withdrawal
rates of ground-water users;
(5) The existing quality of ground-
water, including other sources of
contamination and their cumulative
impact on the ground-water;
(6) The potential for health risks
caused by human exposure to waste
constituents;
(7) The potential damage to wildlife,
crops, vegetation and physical
structures caused by exposure to waste
constituents;
(8) The persistence and permanence
of the potential adverse effects; and
(b) Prevention of adverse effects on
surface water quality considering:
(1) The volume and physical and
chemical characteristics of the waste in
the facility; . .
(2) The hydrogeological
characteristics of the facility and
surrounding land, including the
topography of the area around the
facility;
(3) The quantity, quality and
directions of groundwater flow;
(4) The patterns of rainfall in the
region;
(5) The proximity of the facility to
surface waters;
(6) The uses of nearby surface waters •
and any water quality standards ,
established for those surface waters;
(7) The existing quality of surface
water, including other sources of
contamination and their cumulative
impact on surface water;
(8) The potential for .health risks
caused by human exposure to waste
constituents;
(9) The potential damage to wildlife,
crops, vegetation and physical
structures caused by exposure to waste
constitutents;
(10) The persistence and permanence
of the potential adverse effects; and
(c) Prevention of adverse effects on
air quality, considering:
[1) The volume and physical and
chemical characteristics of the waste in
the facility, including its potential for
volatilization and wind dispersal;
{2} The existing quality of the air,
including other sources of contamination
and their cumulative impact on the air;
(3) The potential for health risks
caused by human exposure to waste
constitutents; , ' .
(4) The potential damage to wildlife,
crops, vegetation and physical •
structures caused by exposure to waste .
constituents;
[5) The persistence and permanence
of the potential adverse effects; and
(d) Prevention of adverse effects due
to migration of waste constituents in the
. subsurface environment, considering:
(1) The volume and physical and
chemical characteristics of the waste in
the facility, including its potential for
migration through soil;
(2) The geologic characteristics of the
facility and surrounding land;
(3) The patterns of land use in the
region; '
(4) The potential for migration of
waste constituents into sub-surface
physical structures;
(5) The potential for migration of
waste constituents into the root zone of
food-chain crops and other vegetation;
(6) The potential for health risks
caused by human exposure to waste
constituents;
(7) The potential damage-to wildlife,
crops, vegetation and physical
structures caused by exposure to waste
constituents; and
(8) The persistence and permanence
of the potential adverse effects.
Subpart C—Landfill s
§267.20 Applicability.
The regulations in this Subpart apply
to owners and operators of new
facilities that dispose of hazardous
waste in landfills.
§ 267.21 General design requirements.
(a) Each landfill must include a liner
designed to comply with § 267.10 of this
Part. The design of the facility liner must
reflect a consideration of:
(1) The physical and chemical
characteristics of the waste in the
facility;
(2) The pressure head of leachate on
the liner;
(3) Climatic conditions in the area;
(4) The permeability of the liner
material, including compaction density
and moisture content where earthen
materials are present;
(5) The physical and chemical
properties of the soil underlying the
facility that supports any emplaced •
liner; and
(6) The potential for damage to the
liner system that could occur during
installation of any emplaced liner.
(b) Each landfill must include a
leachate and runoff control system
designed to comply with § 267.10 of this
Part. The design of the facility leachate
and runoff control system must reflect a
consideration of:
(1) The physical and chemical
characteristics of the waste in the
facility;
(2) Climatic conditions in the area;
(3) The volume of leachate or
contaminated runoff that could be
produced at the facility; and
(4) The available options for managing
any leachate or contaminated runoff
that is collected at the facility.
§ 267.22 General operating requirements.
(a) Incompatible wastes, or
incompatible waste and materials, must
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Federal, Register/^Vol. ^6, NQ^ 30 /Friday, February 13, 1981 /Rules and Regulations 12431
not be placed in the same landfill, unless
§ 264.17(b) is complied with. The waste
analysis plan required by § 264.13 must
include the analysis needed to comply
with this paragraph. , !. .-
(b) Any emplaced liner material must
be installed in a manner that will protect
- the function and physical integrity of the
liner.
{c} The leachate and runoff control
system must be operated and
maintained in a manner that will comply
with § 267.10 of this Part. The
procedures for operating the leachate ;
and runoff control system must reflect a
consideration of:
(1) The volume of leachate or '
contaminated runoff produced at the
facility; ,
(2) The capacity of any leachate or ;
runoff collection device at the facility;
(3) Climatic conditions In the area;
and
(4) The quality of the leachate or
runoff produced and the available
alternatives for managing any leachate
or contaminated runoff produced at the
facility; •
(d) The landfill must be inspected at a
sufficient frequency to assure
compliance with § 267.10 of this Part.
§ 267.23 Closure and post-closure.
, (a) A landfill must be closed in a ~
manner that will comply with § 267.10 of
. this Part. Closure must include
placement of a final cover over the
landfill, and the closure plan under,
§ 264.112 of this Chapter must specify
the function and design of the cover.
Proper clpsure of a landfill must reflect a
consideration of:
(1) The type and amount of waste in
the facility; •
(2) The mobility and expected rate of
migration of waste;
(3) Site location, topography and
surrounding land use;
, (4) Climatic conditions in the area; .
(5) Characteristics of the cover
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
cover; and
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site. ••••••••-."•'.•
(b) A landfill must be maintained in a
manner that complies with § 267.10 of
this Part during the post-closure period.
The post-closure plan under § 264.118.of
this Chapter must specify the
procedures that .will be used to satisfy
this paragraph. Proper maintenance of a.:
landfill during the post-closure period
must reflect a consideration of:, • :
(l) The type and amount of waste in
the facility; : .-•:'. .-,..',.-' , , ,,
(2) The mobility and expected rate of
migration of the waste; ,
(3) Site location,-topography and
-surrounding land use;
(4) Climatic conditions in the area; •
(5) Characteristics of the cover
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
cover; L" ' • , .
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site; and .
, (7) The maintenance of any ground-'
water monitoring system or leachate
and runoff control system at the facility.
§267.24 Treatment of waste.
The Regional Administrator may
waive any of the requirements in
§§ 267.21, 267.22 or 267.23 of this
Subpart where necessary id achieve
treatment of hazardous waste in a
landfill, provided that the waiver does
not result in noncompliance with
§267.10. ,
§ 267.25 Additional requirements.
The Regional Administrator may
place additional requirements on
owners and operators of new landfills,
besides those otherwise required by this
Subpart, where necessary to comply
with § 267.10 of this Part.
Subpart D~Surface Impoundments
§ 267.30 Applicability.
The regulations in this Subpart apply
to owners and operators of new
facilities that dispose of hazardous
waste in surface impoundments.
§267.31 General design requirements.
(a) Each surface impoundment must
include a liner designed to comply with
. § 267.10 of this Part. The design of the
facility liner must reflect a consideration
of:
(1) The physical and chemical
characteristics of the waste in the
facility; ;
(2) The pressure head on the liner;
(3) Climatic conditions in the area;
(4) The permeability of the liner .
material, including compaction density
and moisture content where earthen
materials are present;
(5) The physical and chemical '
properties of the soil underlying the
facility that supports any emplaced
liner; and ..-.." :.
(6) The potential for damage to the
liner system that could occur during
installation of any emplaced liner.
(b] Each surface impoundment must
be designed so as to prevent:
overtopping due to wind and wave
action, overfilling, precipitation or any
combination thereof. :- -.
(c) Where dikes are part of the surface
, impoundment, the dikes must be
designed to comply with § 267.10 of this
Part. The design of any facility dikes
must reflect a consideration of:
(1) The siiructural integrity of the dike,,
including the effects of plants and
burrowing animals on earthern dikes;
(2) The potential for water erosion of
the dike; and
(3) The-potential for wind erosion of
•the dike. ]-> ••' ' v.\v ";f:, :. ,;,.- -.,,.-. ' .'..
§267.32 Genera! operating requirements.
(a) Incompatible wastes* or , =. """
incompatible wastes and materials,
must-not be; placed in the same surface
impoundment, unless § 264.17(b) is
complied with. The waste analysis plan
required by § 264.13 must include the
analyses needed to complywith this
, paragraph. ]
(b) Any emplaced liner material must
ber installed in a manner that will
protect the functipn and physical
integrity of the liner. ••
, (c) The siirface impoundment must be ,
operated so as to prevent overtopping
due to wind! and wave action,.
overfilling, 'precipitation or any
combination thereof.
(d) The .siirface impoundment must be
inspected at a sufficient frequency to
assure compliance with § 267.10 of this
Part. '•- '" •;! / : . "V /' : ;-:/' ' ;
§ 267.33 Closure and Post-closure.
(a) A.surface impoundment must be
closed in a manner that will comply
with § 267.10 of this Part. Closure must
include placement of a filial cover over
the surface impoundment, and the
closure plan under § 264.112 of this -
Chapter mubt specify the function and '
design of the' cover. Proper closure of a
surface impoundment must reflect a
consideration of: ,
(1) The type and amount of waste in
the facility, .including the amount of free
liquids; I -
(2) The mobility and expected rate of "
migration of the Waste; ,
(3) Site location, topography and '
surrounding1 land use;
.. (4) Climatic .conditions in the area;
(5) Characteristics of the cover
'-, including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope and type of vegetation on the
cover; , . ! " v ...
(6) Geological and soil profiles and
surface and subsurface hydrology of the
site; and" ! . .:.. : . .-.'....,
{7) The potential for eliminating free ..
liquids from; the facility.
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12432 Federal Register / Vol. 46, No. 3a / Friday, February 13, 1981 / Rules and R.egijJations
(b) A stirface impoundment must be
maintained In a manner that complies
with 1287.10 of this Part during the post-
closure period. The post-closure plan
under § 234.118 of tills Chapter must
specify the procedures that will be used
to satisfy this paragraph. Proper
maintenance of a surface impoundment
during the post-closure period must
reflect a consideration of:
(1) The type and amount of waste in
the facility;
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use;
(4) Climatic conditions In the area;
(5) Characteristics of thereover
including material, final surface
contours, thickness, porosity and
permeability, slope, length of run of
slope, and type of vegetation on the
cover;
(8) Geological and soil profiles and
surface and subsurface hydrology of the
site; and
(7) The maintenance of any ground-
water monitoring system at the facility.
§ 267.34 Treatment of Waste.
The Regional Administrator may
waive any of the requirements in
§§ 267.31,207.32 or 287.33 of this
Subpart where necessary to achieve
treatment of hazardous waste in a
surface impoundment, provided that the
waiver does not result in
noncompliance.
§ 267.35 Additional requirements.
The Regional Administrator may
place additional requirements on
owners and operators of new surface
impoundments, besides those otherwise
required by this Subpart, where
necessary to comply with § 267.10 of
this Part.
Subpart E—Land Treatment
§267.40 Applicability.
The regulations in this Subpart apply
to owners and operators of new
facilities that dispose of hazardous
waste hi land treatment facilities.
§267.41 General design requirements.
Each land treatment facility must
include a runoff control system designed
to comply with § 267.10 of this Part. The
design of the facility runoff control
system must reflect a consideration of:
(a) The physical, biological and
chemical characteristics of the waste in
the facility;
(b) Climatic conditions in the area;
(c) The volume of runoff that could be
produced at the facility; and
(d)The available options for managing
any contaminated runoff that is
collected at the facility.
§ 267.42 General operating requirements.
(a) Incompatible wastes, or
incompatible wastes and materials,
must not be placed in the same land
treatment facility, unless § 264.17(b) is
complied with. The waste analysis plan
required by § 264.13 must include the .
analyses needed to comply with this
paragraph.
(b) The runoff control system must be
operated and maintained in.a manner
that will comply with § 267.10 of this
Part. The procedures for operating the %
runoff control system must reflect a
consideration of:
(1) The volume of contaminated runoff
produced at the facility;
(2) The capacity of any runoff
collection device at the facility;
(3) Climatic conditions in the area;
and
• (4) The quality of the runoff produced .
and the available options for managing
any contaminated runoff from the
facility.
[c) The land treatment facility must be
operated to treat the waste in the
facility to the extent necessary to
comply with § 267.10 of this Part.
(d) If food-chain crops are grown at
the facility, the facility must be operated
in a manner designed to protect the
•quality of those crops to the extent
necessary to comply with § 267.10 of
this Part. Proper operation of a land
treatment facility on which food-chain
crops are grown must reflect a
'consideration of:
(1) The characteristics of the soil,
including the pH; .
(2) The volume and chemical,
biological and physical characteristics
of the waste hi the facility;
[3) The type of crop to be grown;
(4) The manner in which such crop
marketed (e.g. direct sale to consumers,
use as an animal feed grain); .
(5) The potential future uses of the
facility;
(6) The potential for crop uptake of
waste constituents; and
(7) The potential exposure of workers
who handle the crop to waste
constituents.
(e) The treatment facility must be
< inspected at a sufficient frequency to
assure compliance with § 267.10 of this
Part.
§ 267.43 Urtsaturated zone monitoring.
In addition to the ground-water
monitoring program required in Subpart
' F of this Part, a land treatment fa'cility
must have an unsaturated zone
monitoring program which will assure
compliance with § 267.10. An
unsaturated zone monitoring program
must include an unsaturated zone
monitoring system at the facility or at a
representative test plot, as Well as
procedures for sampling, analysis arid
evaluation of data. The unsaturated
zone monitoring program required by
this paragraph must reflect a
consideration of:
(a) The placement and depth of
monitoring wells that is necessary to
obtain a representative sample of the
success of waste treatment in the
facility;
(b) Soil characteristics, including its
pH, its permeability and the level of
microbial activity in the soil;
(c) Climatic conditions in the area;
(d) The potential for rapid migration
of waste constituents through the soil;
and
(e) The accessibility of the monitoring
system devices for maintenance and
repair.
§ 267.44 Closure and post-closure.
(a) A land treatment-facility must be
closed in a manner that will comply
with § 267.10 of this Part. The closure
plan under § 264.112 of this Chapter
must specify the measures which will be
used to satisfy this paragraph. Proper
closure of a land treatment facility must
reflect a consideration of:
(1) The type and amount of waste
applied to the facility; • . .
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use;
(4) Climatic conditions in the area,
including the amount, frequency and pH
of precipitation;
(5) Geologic and soil profiles and
surface and subsurface hydrology of the
site, including cation exchange capacity,
total organic carbon and pH of the soil;
and
[6] Unsaturated aone monitoring
information obtained under, § 267.43.
(b] A land .treatment facility must be
maintained in a manner that complies
with § 267.10 of this Part during the post-
closure period. The post-closure "plan
under § 264.118 of this Chapter must
specify the procedures that will be used
to satisfy this paragraph'Proper -• ..
maintenance of a land treatment facility
during the post-closure period must
reflect a consideration of: •
(1) The type and amount of waste
applied to the facility;
(2) The mobility and expected rate of
migration of the waste;
(3) Site location, topography and
surrounding land use;
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Federal Register / .Vol. 46, No, 30 / Friday, February 13,1981 /Rules arid Regulations
12433
(4) Climatic conditions in the area,
including the amount, frequency and pH
of precipitation;
(5) Geologic and soil profiles and
surface and subsurface hydrology of the
site, including cation exchange capacity,
total organic carbon and pH of the soil;
(6) Unsaturated zone monitoring
information obtained under § 267.43;
and
(7) The maintenance of any ground-
water monitoring system at the facility.
§267,45 Treatment of waste.
The Regional Administrator may
waive any of the'requirements in
§ 267.21, 267.22 or 267.23 of this Subppt
where necessary to achieve treatment of
. hazardous waste in a land treatment
facility, provided that the waiver .does
not result in non-compliance with
§267.10. '
§267.46 Additional requirements.
The Regional Administrator may
place additional requirements on
owners or operators of new land
treatment facilities, besides those
otherwise required by this Subpart,
where necessary to .comply with § 267.10
of this Part. '••-•.
Subpart F—Ground-Water Monitoring
§ 267.50 Applicability. '
Each new hazardous waste landfill,
surface impoundment, or land treatment
facility must have a ground-water
monitoring program, which includes a
ground-water monitoring system,
procedures for sampling, analysis and
evaluation of ground-Water data, and
appropriate response procedures.
§ 267.51 Ground water monitoring system.
The ground-water system, required by
this Subpart must be capable of .
determining the facility's impact on
ground-water hi the uppermost aquifer
so as to assure compliance with § 267.10
of this Part. The.design of the ground-
water monitoring system must reflect a
consideration of:
(a) The placement and depth of •
monitoring wells that is necessary to
obtain a. representative sample of
constituents in the uppermost aquifer,
including those present in the ground-
water upgradient from the facility;
(b)- Measures such as casing which
maintain the integrity of the monitoring
well bore hole; and
(c) Measures which prevent,
contamination of ground-water samples..
§267.52 Ground water monitoring
procedures.
(a) The ground-water monitoring
procedures required by this Subpart
must be capable of assuring cpmplia'nce
with § 267.10 of this Part. The
.procedures must reflect a consideration
of: . • - - . . - , ....
(1) Sample collection procedures;
(2) Sample preservation and shipment
procedures; /
(3) Analytical methods; •'.-•••
(4] Chain of custody control; and,
(5) Evaluation procedures, including
methods for determining the extent and
rate^of migration of waste constituents.
(b) The ground-water monitoring. '
procedures required by this Subpart
must include appropriate procedures for
when the ground-water monitoring
program indicates that the facility is not
• in compliance with § 267.10 of this Part.
Such response procedures must be
contained in the contingency plan ;
required ;by Subpart D of Part 264. '„ '
§267.53* Additional requirements.
The Regional Administrator may •'
place additional ground-water .
monitoring requirements on owners or
operators of facilities, subject to this
Part, besides those otherwise required
by this Subpart, where necessary to
comply with § 267.10 of this Part.
Subpart G—Underground Injection
§ 267.60 Applicability.
The regulations .in this Subpart apply
to owners and operators of new ,
facilities that dispose of hazard waste in
underground injection wells which are
classified as Glass I under § 122.32(a) of
this Chapter. ' '
§ 267.61 General design requirements.
An injection well must be designed to
comply with § 267.10 of this Part. The
facility design must include measures
(e.g. casing, tubing and packer set) to
prevent the escape of injected fluids to ":
the area above the zone of injection.
§ 287.62 General operating requirements.
An infection well must be operated in
a manner that will comply with § 267.10
.of this Part. The methods for operating
the injection well must.refleet a
consideration of:
. (a) The volume and physical and
chemical characteristics of the waste
injected in the well; -•••'.
(b) The injection pressure; and
(c) Monitoring measures to assure that
the mechanical integrity of the'well is
maintained. ,
§267.63 Closure.
An injection well must be plugged and
sealed at closure to prevent the escape
of injected fluids to the area above the
zone of injection.
§267.64 Additional requirements.
The Regional Administrator may ,
place additional requirements on
owners and operators of new injection
wells, besides those otherwise required
by this Sufopart, where necessary to
comply with § 267.10 of this Part.
PART 122— [AMENDED]
2. Part 122 of Title 40 of the Code of
Federal Regulations is amended by • .
revising § ,122.11(c) to read as follows:
§ 122.11 Requirements for recording and
reporting of monitoring results.
* ' ,* i * ° *' * .
(c) Applicable reporting requirements'
based upon the impact of the regulated
activity arid as specified .in Parts 264,
266 and 267 (RCRAJ, Part 146 (UIC),
§ 122.62 (MPDES), and, when applicable,
40 CFR Part 230 (404). Reporting shall be
no' less frequent than specified in the
above regulations. •
3. Part 1,22 of Title 40 of the Code of
Federal Regulations is amended by .
revising.! ,122.29 to reas as follows:
§122.29 Establishing RCRA permit
conditions. ,
(Applicable to State RCRA programs, see
§123.7) |
In addition to the conditions
established under § 122.8(a), each RCRA
permit shall include permit conditions
necessary !to achieve compliance with
each of the applicable requirements
specified in 40 CFR Parts 264, 266 and
267. In satisfying this provision, the
Director may incorporate applicable
requirements of 40 CFR Parts 264, 266
and 267 dii ectly into the permit or
establish c ther permit conditions that
are based on these Parts. ;
[FR Doc. 81-253: Filed 2-12-8H 8:45 sm]
BILLING CODE
6560-30-M
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•I •"'"
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United States
Environmental Protection
Agency
Washington DC 20460
Official Business
Penalty for Private Use $300
Postage and
Fees paid
Environmental
Protection
Agency
EPA 335
Third-Class
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