&5WFR 82. 0+3
Monday
July 26, 1982
Part II
Environmental
Protection Agency
Hazardous Waste Management System;
Permitting Requirements for Land
Disposal Facilities
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32274
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122,260,264, and 265
[SWH-FRL 2172-8]
Hazardous Waste Management
System; Standards Applicable to
Owners and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities; and EPA
Administered Permit Programs
AGENCY: Environmental Protection
Agency.
ACTION: Interim final rule with request
for' comments.
SUMMARY: The Environmental Protection
Agency [EPA) is required by the
Resource Conservation and Recovery
Act (RCRA) to issue standards
applicable to owners and operators of
hazardous waste management facilities.
These standards are to be used in
issuing permits for facilities that treat,
store, or dispose of hazardous waste. •
Accordingly, EPA is today issuing
interim final standards applicable to
owners and operators of new and
existing hazardous waste land disposal .
facilities and the corresponding
procedures for permit applications. EPA
is also issuing conforming amendments
to some existing hazardous waste
regulations.
DATES: Effective date: These interim
final regulations become effective on
January 26,1983, which is six months
from the date of promulgation as RCRA
Section 3010(b) requires.
In accordance with the Paperwork
Reduction Act of 1980, (44 U.S.C. 3507),
the reporting or recordkeeping
provisions that are included in this final
rule will be submitted for approval to
the Office of Management and Budget
(OMB). They are not effective until OMB
approval has been obtained under the
Act. EPA will publish a notice of the
effective date of the reporting and
recordkeeping provisions of this rule
after it obtains OMB approval.
Comments must be submitted on or
before November 23,1982.
ADDRESS: Comments should be sent to
Docket Clerk. Office of Solid Waste
(WH-562), U.S. Environmental
Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, telephone (202)
382-4487.
Comments on today's rule should
identify the regulatory docket as
follows: "Docket 3004, Permitting
Standards for Land Disposal Facilities."
Comments pertaining specifically to
regulatory amendments to 40 CFR Part
122 should be marked "Docket 3005,
Permitting Requirements for Land
Disposal Facilities." The public docket
for these regulations is located in'Room
S269C, U.S. Environmental Protection
Agency, 401M Street, S.W.,
Washington, D.C., and is available for
viewing from 9:00 a.m. to 4:00 p.m.
Monday through Friday, excluding
holidays.
FOR FURTHER INFORMATION CONTACT:
For general information contact the
RCRA hazardous waste hotline, Office
of Solid Waste (WH-563),.U.S.
Environmental Protection Agency, 401M
Street, S.W., Washington, D.C. 20460,
telephone (800) 424-9346, or in
Washington, D.C., 382-3000.
For information on the technical
aspects of this regulation contact: John
P. Lehman, Director, Hazardous and
Industrial Waste Division, and Acting
Director, Land Disposal Division, Office
of Solid Waste (WH-565), U.S.
Environmental.Protection Agency, 401M
Street, S.W., Washington, D.C. 20460,
telephone (202) 755-9185.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. Structure and Status of the Hazardous
Waste Regulatory Program
• 1. Program Structure
2. Regulation Development Status
B. History of Rulemaking for Land Disposal
Standards
C. Promulgation of Part 267 Standards for
New Land Disposal Facilities
D. Court Order Requiring the Promulgation of
Today's Regulations
IIL Summary of the Part 264 Land Disposal
Regulations
IV. Present and Future Regulatory Activities
Related to Today's Regulations
A. Interim Final Promulgation of Land
Disposal Standards
B. Future Regulatory Activity
1. Financial Responsibility for Corrective '
Action
2. Monofills and Neutralization Surface
Impoundments
3. Underground Injection Wells
4. Tailoring of Standards for Specific Waste
5. Units not Covered by Promulgated
Standards
V. Relationship of the Part 264 Land Disposal
Standards to Other RCRA Subtitle C
Regulations
A. Relationship to the Part 265 Interim Status
Standards
B. Relationship to the Part 267 Standards for
New Land Disposal Facilities -
C. Relationship to Standards for Storage
Surface Impoundments and Storage Piles
Promulgated on January 12,1981
D. Relationship to the Consolidated Permit
Regulations
E. Relationship to Requirements for State
Program Authorization
1. General Discussion
2. Interim Authorization
3. Final Authorization
VI. Strategy for Protection
A. Ground Water
•'1. Considerations Guiding the Ground-water
Protection Strategy
2. Alternatives Examined
3. Control Strategy
a. Liquids Management Program
b. Ground-water Monitoring and Response
Program
c. Time Frame of Protection Strategy
B. Surface Water
C.Air
VII. Detailed Analysis of the Rules—Parts
260, 264, 265, and 122
A. Definitions (Part 260)
1, Aquifer
2. Certification
3. Constituent, Hazardous Waste Constituent
4. Existing Portion
5. Treatment Zone
6. Uppermost Aquifer
B. Conforming Changes (Part 264,_Subparts B,
E, G,H)
C. Location Standards (Part 264, Subpart B)
1. Applicability (§ 264.10)
2. Floodplains (§ 264.18(b))
D. Ground-water Protection (Part 264,
'Subpart F)
1. Applicability<| 264.90)
a.,Regulated Units
b. Exclusions
2. Establishment of Programs (§ 264.91)
3. Ground-water Protection Standard
(§ 264.92)
4. Hazardous Constituents (§ 264.93)
a. Alternatives Examined
b. Public Comments on Use of Appendix VIII
c. Selecting Hazardous Constituents from
Appendix Vni
5. Concentration limits (§ 264.94)
a. Alternatives Examined
b. Use of Alternative Concentration Limits
6. Compliance Point (§ 264.95)
a. Alternatives Examined
b. Use of Compliance Point
7. Compliance Period (§ 264.96)
8. General Ground-water Monitoring
Requirements (§ 264.97)
' 9. Determination of Background {§ 264.97(g))
10. Statistical Procedures (§ 264.97(h))
a. Basic Statistical Procedure
b. General Alternative to Basic Procedure
c. Statistical Procedures for Compliance
Monitoring
d. Other Situations
11. Detection Monitoring Program (§ 264.98)
a. Parameters to Be Monitored
b. Detection Monitoring System
c. Establishment of Background Values
d. Duty to Monitor at Compliance Point
e. Ground-water Flow and Direction
f. Sampling and Analysis Procedures
g. Determining Statistical Significance
h. Response to Finding Statistical
Significance
i. Duty to Modify Program.
j. Duty to Ensure Compliance with the
Ground-water Protection Standard
12. Compliance Monitoring Program (§ 264.99)
a. Ground-water Protection Standard
b. Compliance Monitoring System
c. Concentration Limits
d. Compliance Point Monitoring
e. Ground-water Flow and Direction
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 ./ Rules and Regulations 32275
f. Duty to Search for Additional Hazardous
Constituents
g. Sampling and Analysis Procedures
h. Determining Statistical Significance
i. Response to Finding of Statistical
Significance
i. Duty to Modify Program
k. Duty to Ensure Compliance with Ground-
water Protection Standard
13. Corrective Action Program (§ 264.100)
a. Ground-water Protection Standard
b. Objective of Corrective Action-
c. Timing of Corrective Action
d. Duty to Clean Up Contamination Past the
Compliance Point
e. Corrective Action Monitoring
f. Reporting
E. Design and Operating Standards: General
Discussion (Part 264, Subparts K, L, M, N)
1.-Introduction
2. Major Features of the Design and
Operating Standards
3. Rationale Underlying the Design and
Operating Standards
4. Rationale for Requiring Liners that Prevent
Migration of Wastes During the Active
Life of the Unit
6. Closure of Land Disposal Units
6. Existing Portions
7. Waiver from the Liner and the Leachate
Collection and Removal Requirement*
8. Special Provisions for Double-lined Units:
Exemption from the Ground-water
Protection Requirements of Subpart F
9. Specification of Design and Operating
Requirements hi Permits
10. Technical Resource Documents and
Guidance
F. Surface Impoundments (Part 264, Subpart
K)
1. Relationship to Previously Promulgated or
Proposed Rules for Permitting Surface
Impoundments
2. Absence of Leachate Collection and
Removal Requirements for Surface
Impoundments
3. Liner Requirements (§ 264.221(a))
4. Control of Overtopping (§ 264.221(c))
S. Structural Inegrity of Dikes (§§ 264.221(d)
and 264.226(c))
6. Monitoring and Inspection (§ 264.226(c))
7. Emergency Repairs (§ 264.227)
8. Closure and Post-closure care (§ 264.228)
9. Financial Responsibility for Piles and
Surface Impoundments from which
Wastes Are Removed at Closure
(§§ 264.228(d) and 264.258(d}}
10. Special Requirements for Ignitable or
Reactive Waste and Incompatible
Wastes (§§ 264.229 and 264.230)
G. Waste Piles (Part 264, Subpart L)
1. Relationship to Previously Promulgated
Design and Operating Standards for Piles
2. Design and Operating Requirements
(§ 264.251)
a. Liners and Leachate Collection Systems
b. Control of Run-on and Run-off
3. Exemption of Certain Piles from the
Ground-water Protection Requirements
of Subpart F(§ 264.253)
4. Monitoring and Inspection (§ 264.254)
5. Special Requirements for Ignitable or
Reactive Waste and Incompatible
Wastes (§§ 264.258 and 264.257)
6. Closure and Post-closure care (§ 264.258)
7. Small Piles
H. Land Treatment (Part 264, Subpart M)
1. Applicability (§ 264.270)
2. Treatment Program (§ 264.271)
3. Treatment Demonstration (§ 264.272)
4. Design and Operating Requirements
(§264.273)
5. Food-chain Crops (§ 264.276)
6. Unsaturated Zone Monitoring (§ 264.278)
7. Recordkeeping (§ 264.279)
8. Closure and Post-closure Care (§ 264.280)
9. Special Requirements for Ignitable or
Reactive Waste (§ 264.281)
10. Special Requirements for Incompatible
"Wastes (§ 264.282)
I. Landfills (Part 264, Subpart N)
1. Special Requirements for Ignitable or
Reactive Waste and Incompatible
Wastes (§§ 264.312 and 264.313)
2. Special Requirements for Liquid Waste
(§ 264.314)
3. Special Requirements for Containers
(§ 264.315)
4. Disposal of Small Containers of Hazardous
Waste in Overpacked Drums (Lab Packs)
(§ 264.316)
J. Interim Status Conforming Changes (Part
265)
K. Permitting Requirements (Part 122}
1. Introduction
2. Background
3. Contents of Part B for Surface
Impoundments, Waste Piles, Land
Treatment Units, and Landfills
4. When to Submit Parts A and B
5. Special Permitting Procedures for Land
Treatment Units
8. Clarification of the Scope of the RCRA
Permit Requirement
7. Changes to the Conditions Under Which
EPA May Modify Permits
8. Request for Part 122 Comments
Vni. General Solicitation of Public Comments
DC Regulatory Analysis
A. Executive Order 12291: Regulatory Impact
Analysis
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Individual Unit Costs
1. General Approach
2. Design and Operating Standards
3. Corrective Action Costs and Timing
4. Costs for Landfills
5. Coats for Surface' Impoundments
6. Costs for Land Treatment Units
7. Costs for Waste Piles
E. Closure Analysis
F. Total Costs
G. Industry Analysis
H. Sensitivity Analysis
1. Sensitivity of Corrective Action Costs
2. Sensitivity of Costs to Hydrogeologic
Assumptions
3. Sensitivity of Costs to Treatment
Assumptions
4. Adding a Slury Wall to Reduce the
Pumping Rate
5. Cost of Floodplain Standards
X. List of Subjects in 40 CFR Parts 122, 260,
264, and 265
I. Authority
These regulations are issued under the
authority of 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(a),
6924, and 6925.
JI. Background
A. Structure and Status of the
Hazardous Waste Regulatory Program
1. Program Structure. Subtitle C of
RCRA creates a "cradle-to-grave"
management system intended to ensure
that hazardous waste is safely treated,
stored or disposed of. First, Subtitle C
requires EPA to identify hazardous
waste. Second, it creates a manifest
system designed to track the movement
of hazardous waste, and requires
hazardous waste generators and
transporters to employ appropriate
management practices as well as
procedures to ensure the effective
operation of the manifest system. Third,
owners and operators of treatment,
storage and disposal facilities must
comply with standards that "may be
necessary to protect human health and
the environment" which are established
by EPA under Section 3004 of RCRA.
These standards are generally
implemented through permits that are
issued by authorized states or EPA to
owners and operators of hazardous
waste treatment, storage, and disposal
facilities.
All substantive RCRA Subtitle C
regulations that impose new
requirements (including today's
permitting standards for land disposal
facilities) become effective six months
after then" promulgation by EPA. Under
Section 3005(a), on the effective date of
the Section 3004 standards (the first set
of which became effective on November
19,1980), all treatment, storage, and
disposal of hazardous waste is
prohibited except in accordance with a
permit that implements the Section 3004
standards.
Recognizing that not all permits would
be issued within six months of the
promulgation of Section 3004 standards,
Congress created "interim status" in
Section 3005(e) of RCRA. Owners and
operators of existing hazardous waste
treatment, storage, and disposal
facilities who qualify for interim status
are treated as having been issued a
permit, until an authorized state or EPA
takes final administrative action on their
permit applications. Interim status does
not relieve a facility owner or operator
of complying with Section 3004
standards.
2. Regulation Development Status. To
implement the various sections of
Subtitle C of RCRA, EPA has issued the
following sets of regulations in Title 40
of the Code of Federal Regulations:
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32276 Federal Register / Vol. 47, No. 143 / Monday,-July 26, 1982 / Rules and'Regulations
Part 260.—Hazardous Waste Management
System: General
Part 261.—Hazardous Waste Management
System: Identification and Listing of
Hazardous Wastes
Part 262.—Standards for Generators of
Hazardous Wastes
Part 263.—Standards for Transporters of
Hazardous Wastes
Part 264.—Standards for Owners and ,
Operators of Hazardous Waste
treatment, Storage, and Disposal
Facilities
Part 265.—Interim Status Standards for
Owners and Operators of Hazardous
Waste Treatment, Storage, and Disposal
Facilities
Part 267.—Interim Standards for Owners and
Operators of New Hazardous Waste
Land Disposal Facilities
Parts 122-124.—Consolidated Permit
Regulations (including permit regulations
. for hazardous waste facilities and State
program authorization)
These regulations have been
promulgated in several stages and are
contained chiefly in the following
Federal Register publications:
1.45 FR 33066, May 19,1980: Parts
260-263 and 265, general provisions of
Part 264, and Parts 122-124.
2, 45 FR 47832, July 16,1980: Listing of
additional hazardous wastes in Part 261.
3.46 FR 2804, January 12,1981: Parts
264 and 122, standards for storage and
treatment facilities; and Parts 264,265,
and 122, standards for closure, post-
closure care, and financial
responsibility.
4. 46 FR 7666, January 23,1981: Parts
264 and 122, standards for incinerators.
5. 46 FR 12414, February 13,1981: Part
267, interim permitting standards for
four classes of new land disposal
facilities.
While implementing these regulations,
.EPA has been continuously re-
evaluating them. In some cases, EPA has
discovered that implementing particular
provisions could lead to unanticipated
adverse consequences. In others, EPA
has determined that certain
requirements either were unnecessary to
protect human health and the
environment or could be modified to
achieve, the desired environmental result
more effectively. Finally, some
regulations required further clarification.
As a result, EPA has at various times
revised some of the regulations listed
above. The regulatory amendments,
notices of suspension, and notices of
extension of compliance deadlines are
listed below:,
1, 45 FR 72024, October 30,1980:
Amended § 261.4 regarding when a
hazardous waste generated in storage or
transportation units or manufacturing
processes becomes subject to RCRA;
amended § 260.10 to modify the
definition of "generator" and added
other definitions.
2. 45 FR 72035, October 30,1980:
Temporarily excluded from hazardous
waste status wastes that currently are
deemed hazardous solely due to the
presence of trivalent chromium.
3. 45 FR 72037, October 30,1980:
Delisted waste from the leather tanning
and titanium dioxide production
industries.
4. 45 FR 72040, October 30,1980:
Technical amendment to clarify the
"Analytical Procedures for Analyzing
Extract Contaminants" in Appendix II of
Part 261.
5. 45 FR 74884, November 12.1980:
Published a final list of certain
hazardous wastes previously listed in an
interim final regulation.
6. 45 FR 76074, November 17,1980:
Suspended the applicability of Parts 122,
264, and 265 to owners and operators of
wastewater treatment tanks under the
NPDES program and to owners and
operators of neutralization transport
vehicles, or containers and tanks that
neutralize wastes that are hazardous
only because they exhibit the
"corrosivity" characteristic or are listed
only for that reason.
7. 45 FR 76618, November 19,1980:
Excluded from Subtitle C regulation (1)
solid.waste from certain mining
operations, and (2] cement kiln dust.
8. 45 FR 76620,'November 19,1980:
Clarified the special requirements for
generators of small quantities of
hazardous waste'.
9. 45 FR 76624, November 19,1980:
Eliminated the distinction between on-
site and off-site accumulation for
treatment, storage, or disposal.
10. 45 FR 76626, November 19,1980:
Clarified that the Part 264 and 265
standards and Part 122 permitting
requirements for treatment and storage
of hazardous wastes are not applicable
to (1) actions taken to immediately
contain and treat spills of hazardous
wastes, and (2} materials that, when
spilled, become hazardous waste's.
11. 45 FR 76630, November 19,1980:
Clarified the circumstances under which
hazardous waste management facilities
may qualify for interim status.
12. 45 FR 78524, November 25,1980:
Clarified the situations in which
residues of hazardous wastes in drums,
barrels, tank trucks, or other-types of
containers must be managed as
hazardous wastes.
13. 45 FR 78530, November 25,1980:
Delisted wastes that are hazardous
solely because they exhibit the "EP
toxicity" characteristic, are generated in
the arsenical treatment of wood or wood
products, and are generated by people
who use such wood or wood products
for the wood's intended end use.
14. 45 FR 78532, November 25,1980:
Finalized the lists of commercial .
chemical products, off-specification
products, and intermediates that when
discarded or intended to be discarded
are considered.to be hazardous wastes,
and removed all trade names from the
lists.
15. 45 FR 80286, December 4,1980:
Provided that a hazardous waste
generated in a product or raw material
pipeline is not subject to regulation until
it is removed from the pipeline in which
it was generated, unless it remains in
the pipeline for more than 90 days after
the pipeline ceases to be operated for
the purpose of transporting product or
raw materials.
16. 45 FR 86966, December 31,1980:
Clarified when a transporter handling
shipments of hazardous waste is
required to obtain a storage permit.
17. 46 FR 2344, January 9,1981:
Amended definition of "existing
hazardous waste management facility";
clarified "construction"; added
definition of "Federal, State, or local
. . . approvals or permit"; and amended
permit requirements to allow new
hazardous waste management facilities
(other than land disposal facilities) to
commence construction before receiving
permits.
18. 46 FR 4614, January 16,1981:
Finalized the listing of thirteen
hazardous wastes from specific sources;
deleted two wastes from the interim
final hazardous waste list; and deferred
action on and suspended the
effectiveness of the listing of nine
wastes in interim final form on July 16,.
1980, and deferred action on one waste
proposed on that date.
19. 46 FR 5616, January 19,1981:
Revised public participation
requirements in the state enforcement
process during interim authorization.
20. 46 FR 7964, 8298 and 8312, January
26,1981: Amended Part 123
requirements for authorization of state
programs.
21. 46 FR 13492, February 20,1981:
Amended interim status regulations to
allow liquid ignitable wastes in
containers to be disposed of in landfills
until May 19,1981, under specified
conditions.
22. 46 FR 18025, March 23,1981:
Corrected hazardous waste regulations
issued on January 12,1981.
23. 46 FR 27119, May 18,1981:
Deferred effective date of financial
requirements from July 13,1981, to
October 13,1981.
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24.48 FR 27473, May 20,1981: Made
technical corrections to many of the
rules listed above.
25.46 FR 33502, June 29,1981:
Extended to November 19,1981, the date
for compliance with the interim status
standards that prohibited the diposal of
containerized liquid ignitable wastes in
landfills. Also allowed (without time
limitation) the landfilling of solid
ignitable wastes.
26.48 FR 38704, July 15,1981:
Specified new procedures for public
participation in hazardous waste
permitting,
27.48 FR 48147, October 1,1981:
Deferred the effective date of financial
requirements from October 13,1981, to
April 13,1982.
28.46 FR 55110, November 6,1981:
Amended Fart 264 and Part 122
regulations concerning piles and
containers to better tailor the standards
to the types of hazard posed by specific
situations.
29.46 FR 58582, November 17,1981:
Exempted certain categories of mixtures
of solid wastes and hazardous wastes
from the presumption of hazardousness.
30.46 FR 56592, November 17,1981:
Amended the interim status standards
for the disposal of ignitable, reactive,
and containerized liquid wastes in
landfills to allow the land-disposal of
small containers of liquid and solid
waste that are placed in overpacked
drums (lab packs].
31.47 FR 1248, January 11,1982:
Amended the regulations waiving permit
requirements for accumulation of wastes
on-site for less than 90 days to (1) clarify
that the provision applies to all
generators, including those who
accumulate hazardous waste for the
purpose of use, reuse, recycling, and
reclamation; (2) remove the
requirements for the use of Department
of Transportation-approved containers;
(3) revise labelling requirements for
accumulated wastes; and (4) allow an
extension of the 90-day accumulation
limit in certain circumstances.
32.47 FR 1254, January 11,1982:
Provided an opportunity for
neutralization surface impoundments to
obtain waivers from interim status
ground-water monitoring requirements.
33.47 FR 7841, February 23,1982: ;
Delayed the compliance dates for: (1)
the submission of annual reports; (2) the
submission of initial-year quarterly
ground-water monitoring data; and (3)
the preparation of ground-water quality
program assessment outlines.
34.47 FR 8304, February 25,1982:
Delayed the date for compliance with
the interim status standard prohibiting
the disposal of containerized liquid
wastes in landfills.
35. 47 FR 12316, March 22,1982:
Amended the interim status regulations
governing the disposal of containerized
liquid hazardous wastes in landfills.
36. 47 FR 15032, April 7,1982:
Amended the financial responsibility
regulations to provide additional options
for owners or operators to demonstrate
financial responsibility.
37. 47 FR 15304, April 8,1982:
Amended the Part 122 regulations to
make minor changes in miscellaneous
requirements.
38. 47 FR 16544, April 16,1982:
Amended the liability coverage
requirements to: (1) add an option of a
financial test as a means of
demonstrating liability coverage; (2) add
an option of submitting a certificate of
insurance as evidence of insurance; and
(3) change the requirements for the
endorsement and certificate.
39. 47 FR 27520, June 24,1982:
Amended the permitting and interim
status regulations for hazardous waste
incinerators to: (1) exempt certain
corrosive and reactive wastes; (2)
change the performance standards for
hydrogen chloride and particulate
emissions; and (3) clarify permit.
requirements before, during, and after
trial burns.
The regulations discussed above have
covered most aspects of hazardous
waste control under Subtitle C of RCRA,
but have failed to fully address a major
component—Part 264 permitting
standards for land disposal facilities.
Today's promulgation contains those
standards for new and existing land
disposal facilities (except underground
injection wells).
B. History of Rulemaking for Land
Disposal Standards
EPA has promulgated today's
permitting standards for hazardous
waste land disposal facilities after
considering, and obtaining public
comments on, a wide range of regulatory
options. Over a period of several years,
EPA has proposed two different sets of
standards and, in two separate Federal
Register notices, solicited comments on
various land disposal issues.
Furthermore, as discussed in the next
section,' EPA has already promulgated
interim standards for four classes of
new land disposal facilities.
EPA originally proposed technical
standards for permitting land disposal
faculties on December 18,1978 (43 FR
58982). The basic approach was to set
uniform design requirements for land
disposal facilities, subject to .
opportunities for variencea when
alternative designs could achieve
equivalent environmental protection. A
90-day comment period was provided.
Many commenters criticized the
proposal, arguing that it was not
sufficiently flexible (despite its
incorporation of variances) and not
adequately oriented toward a clearly
articulated regulatory goal.
In response to public comments, EPA
reconsidered the proposed approach of
design standards. Based on this
reconsideration, EPA tentatively
selected a risk assessment approach. On
October 8,1980, EPA published a
supplemental notice of proposed
rulemaking (45 FR 66816), hi which EPA
outlined four regulatory options and
announced its tentative selection of the
risk assessment approach. EPA provided
a 30-day comment period.
On February 5,1981, EPA reproposed
technical standards for permitting land
disposal facilities (46 FR 11126). The
reproposal adopted a site-specific risk-
assessment approach. This approach
would have required the permit writer,
based on information and predictions
submitted by the applicant, to evaluate
the potential risks to human health and
the environment that would be posed by
a particular facility's location, design,
construction, and operation. Due to the
complexity of the proposed regulation
and the importance of the issues
involved, an eight-month commdnt
period was provided.
To further promote full discussion of
the complex technical and policy issues
concerning the various types of land
disposal practices and the appropriate
means of regulating them, EPA
published a supplemental notice of
reproposed rulemaking on May 26,1981
(46 FR 28314). The notice presented
many questions relating to these issues
and requested comment on them. The
questions addressed various regulatory
approaches, including site-specific risk
assessment, broad design standards,
location standards, containment
standards, and alternatives to land
disposal. It also invited comment on
diverse technical questions and on
practical considerations, such as the
administrative burdens that are likely to
be imposed by various regulatory
approaches and the likelihood of public
acceptance of facilities permitted under
these different approaches.
Finally, on December 21,1981, EPA
held a public meeting to discuss EPA's
reappraisal of its regulatory approach
and its movement towards the combined
approach of ground-water protection
standards plus design and operating
standards. A 14-day comment period
was provided. Thus, the public was
provided opportunity to comment on the
outline of today's regulatory approach,
which grows out of (and modifies
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32278 . Federal Register / Vol'. 47, No. 143 / Monday, July 26. 1952"/ Rules and Regulations
somewhat) the basic elements discussed
in December 1981.
Together, the various proposals and
notices outlined above have addressed
the basic features of many different
options for regulating land disposal
under Subtitle C of RCRA. Furthermore,
numerous public hearings, meetings, and
technical symposia have been held to
assist EPA to develop appropriate land
disposal standards. The regulations
promulgated today are based upon prior
proposals and public comments
responding to the proposals and
combine those features that the Agency
believes will best effectuate the
purposes of RCRA. These features are
discussed later in this preamble in the
context of the specific regulatory
provisions promulgated today,
C. Promulgation of Part 267 Standards
for New Land Disposal Facilities
At the tune of the February 5,1981,
reproposal of land disposal standards,
" EPA was particularly concerned about
the lack of permitting standards for new
land disposal facilities. The lack of such
standards precluded the construction
and operation of new environmentally
sound facilities and posed potential
difficulties for new industrial facilities
that needed to rely upon the on-site
disposal of hazardous wastes. To
alleviate this short-term problem, EPA
promulgated interim standards for four
classes of new land disposal facilities
(landfills, surface impoundments, land
treatment units, and Class I
underground injection wells) in 40 CFR
Part 267 on February 13,1981 (46 FR
12414).
Section-267.2 provides that Part 267
applies only to the owner or operator of
a new hazardous waste landfill, surface
impoundment, land treatment unit, or
Class I underground injection well, who
has applied for a permit and for whom
public notice of the preparation of a
draft permit has been issued either prior
to February 13,1983, or six months after
Part 264 regulations for the facility
become effective, whichever is sooner.
Thus, the Part 267 regulations will cease
to apply to landfills, surface
impoundments, and land treatment units
six months from today—January 26,
1983. After that date, only permit
applications that have already reached
the draft permit stage will continue to be
processed under Part 267.
The Part 267 standards for injection
wells will remain in effect until
February 13,1983. EPA intends to
extend the Part 267 standards for
injection wells beyond February 13,
1983, if Part 264 standards for such units
are not, promulgated by that date. EPA
requests comments on this approach.
The development of Part 264 standards.
for injection wells is discussed in
section IV.B.3 of this preamble.
D. Court Order-Requiring the
Promulgation of Today's Regulations
Based upon the public comments
submitted hi response to the February 5,
1981, proposal and the May 26,1981,
supplemental notice, EPA concluded
that a thorough review and modification
of its regulatory strategy for land
disposal of hazardous wastes would be
required. To ensure that all aspects of
this complex issue could be integrated
into the land disposal standards, EPA
intended to promulgate these standards
in the fall of 1983. However, on
November 13,1981, EPA was directed by
a court order hi State of Illinois v.
Gorsuch (D.D.C., Civil Action No. 78-
1689) "to promulgate regulations for
existing hazardous waste land disposal
facilities on or before February 1,1982".
After unsuccessfully moving for
reconsideration of the court order, EPA
filed an appeal with the U.S. Court of
Appeals for the District of Columbia
Circuit. The D.C. Circuit granted EPA a
stay of the Court order pending the
outcome of the appeal. On June 7,1982,
the D.C. Circuit ordered EPA to
promulgate today's regulations by July
15,1982.
EPA has promulgated today's
regulations ahead of the schedule which
the Agency had desired, in order to
comply with the D.C.,Circuit's court
order. While the Agency feels that
today's regulations are reasonable and
comply with the requirements of Section
3004 of RCRA, they are not the same
regulations that EPA would have liked
to issue in the fall of 1983. As discussed
elsewhere in this preamble, EPA hopes
to improve these regulations in the.
future by developing (1) numerical
criteria for certain design performance
standards expressed today only in
narrative terms, and (2) specific
standards that are tailored to specific
wastes, locations, and management
practices.
HI. Summary of the Part 264 Land
Disposal Regulations
The regulations promulgated today in
40 CFR Part 264 apply to all landfills,
surface impoundments, waste piles, and
land treatment units used to treat, store,
or dispose of hazardous waste. They
apply to both new and existing waste
management units and distinguish
between these units in appropriate
circumstances.
Conforming changes have been made
in the permitting standards in Part 122,
the definitions in Part 260, and the
interim status standards in Part 265. The
regulations will, upon their effective
date, supersede the Part 267 regulations
for new landfills, surface impoundments,
and land treatment units that were
promulgated on February 13,1981. They
will-also supersede the Part 264
Subparts K and L standards for surface
impoundments and waste piles that
were promulgated on January 12,1981.
The regulations consist primarily of
two sets of performance standards. One
(Subparts K-N of Part 264) is a set of
design and operating standards
separately tailored to each of the four
types of units covered by the
regulations. The other (Subpart F) is a
single set of ground-water monitoring
and response requirements applicable to
each of these units. The former is
intended to ensure that owners or
operators minimize the formation of
leachate and the migration of leachate
to the adjacent subsurface soils and to
ground water and surface-waters. The
latter is intended to ensure that owners
or operators detect any ground-water
contamination, and perform corrective
action when such contamination
threatens human health and the
environment.
The design and operating standards
require units (other than land treatment
units) to have liners to prevent migration
of wastes to the subsurface soil or to
ground water and surface waters during
the active life of the unit. Landfills and
piles are also required to have leachate
collection and removal systems (such as
drains that collect leachate' and pumps
that remove it) to minimize the leachate
remaining after closure. Surface
impoundments, for which leachate
collection and removal systems are
' inappropriate (due to the large
quantities of liquid that regularly enter
the impoundments), are required to
remove liquid wastes and/or solidify the
wastes at closure to minimize post-
closure leaching of wastes. A variance
from the liner and leachate collection
requirements is available to units where
owners or operators demonstrate that
wastes from their units will never
migrate to ground water or surface
water. In addition, existing portions of
• units are exempt from these
requirements.
At closure, all wastes and waste
residues must be removed from piles
and from surface impoundments that are
permitted as storage or treatment
facilities at the request of the owner or
operator. (Piles may be permitted only
as storage or treatment facilities.) Other
surface impoundments, as well as
landfills, will be closed with the wastes
left in place and must be provided with
a final cover (capped) at closure. They
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Fedetal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32279
must then be maintained and monitored
for ground-water contamination during
thepost-clQsure care period.
The ground-water protection
"requirements contained in Subpart F
establish a three-stage program to
detect, evaluate, and, if necessary,
correct ground-water contamination
during the active life of the unit plus a
compliance period designated in the
permit.
The first stage of the ground-water
monitoring and response program is a
detection monitoring program, which
requires the permittee to install a
ground-water monitoring system at the
waste boundary (including both
upgradient and downgradient wells) to
monitor the ground water for parameters
that would indicate whether a leachate
plume has reached the waste boundary.
If a plume is detected, a second stage—a
compliance monitoring program—is
established. The compliance monitoring
program tracks the migration of
hazardous constituents (constituents on
Appendix VHI of Part 261 that are
reasonably expected to be in or derived
from waste .disposed at the facility and
that are found in ground water].
The results of compliance monitoring
are compared against a ground-water
protection standard. The standard
requires that hazardous constituents not
exceed the following concentration
limits:
(l){a) For any constituent, the
background level hi the ground water, or
(t>) For any of the 14 hazardous
constituents covered by the National
Interim Primary Drinking Water
Regulations (NIPDWR], the maximum
concentration limits (MCLs) for drinking
water established in those regulations, if
the background level of the constituent
is below the MCLs, or
(2) Any other limits shown by the
owner or operator to not harm human
health and the environment.
If the ground-water protection
standard is violated, the the third
stage—corrective action—is activated.
Corrective action must continue until the
standard is complied with. Corrective
action consists of the removal of the
contamination (by pumping or other
means) or in-situ treatment of the
hazardous constituents.
The regulations provide an option
whereby owners or operators may
comply with a more stringent set of
design and operating standards and
thereby obtain a waiver of ground-water
monitoring and response requirements.
These special standards include two
bottom liners (instead of the single liner
generally required for new portions of
units) and a leak detection system
between the liners (in addition to the
leachate collection and removal system
above the liners generally required for
new landfills and piles). If a leakis
discovered, the leaking liner must be .,
repaired or replaced, or else the owner
or operator then becomes subject to the
ground-water monitoring and response
requirements. (An additional exemption
from the ground-water monitoring and
response requirements is provided for
piles that are periodically removed from
their liner so mat the liner may be
inspected for leaks.)
Both the design and operating
standards and the ground-water
monitoring and response program will
be implemented through die issuance of
permits. In the ca.se of the ground-water
monitoring and response program,
permit modifications may be required
when there is a need to progress from .
one stage of the program to the next.
IV. Present and Future Regulatory
Activities Related to Today's
Regulations
Although today's regulations nearly
complete the regulatory framework for
hazardous waste land disposal facilities,
EPA plans to continue working to
improve the regulations. Major activities
in this regard are discussed below.
A. Interim Final Promulgation of Land
Disposal Standards
To comply with the court order in
State of Illinois v. Gorsuch, EPA is
promulgating land disposal standards
that are in interim final form and thus
will become effective six months.after
promulgation in accordance with
Section 3010 of RCRA. As noted above
in Section II. B. of this preamble, EPA
has previously proposed, discussed in
Federal Register notices, or received
public comment on, the issues relevant
to today's promulgation. However, while
based upon previously discussed
regulatory approaches, today's
standards differ from previous proposals
in how they integrate various elements
of those approaches. Therefore, EPA
desires further public comment on these
standards before they take effect.
Consequently, EPA is promulgating
today's regulation in interim final form.
A 120-day comment period is being
provided. EPA requests that significant
issues be brought to the Agency's
attention as soon as possible to enable
EPA to make appropriate modifications
of the regulations before they become
effective.
B. Future Regulatory Activity
1. Financial Responsibility for
Corrective Action. Section 3004(8) of
RCRA requires EPA to establish
financiaTresponsibility standards for
owners and operators of hazardous
waste management facilities as may be
necessary or desirable to protect human
health and the environment. Thus far the
Agency has established standards
requiring'demonstration of financial
responsibility for closure, post-closure
care, and liability coverage (Subpart H,
Parts 264 and 265, revised interim final
regulations promulgated April 7,1982 (47
FR15032-15074) and April 16,1982 (47
FR16544-16561)). The Agency is
considering whether it would be •
appropriate to establish standards
requiring owners and operators of
hazardous waste management facilities
to demonstrate financial responsibility
for any corrective actions required to be
taken to comply with the ground-water
protection standard. The Agency
therefore invites public comment on this
and other issues discussed in this
section relating to financial
responsibility for corrective action.
At those facilities where all other
ground-water protection measures have .
failed and a leachate plume is migrating
beyond the compliance point (a point at
the waste boundary where compliance
with the ground-water protection
standard is being measured), corrective
action measures are the key means for
protecting human health and the
environment. EPA believes it important,
therefore, that the owner or operator be
able to perform corrective action
measures if and when they are needed.
This certainly suggests a need for
financial responsibility to cover
corrective action. There are, however,
several factors that musf.be considered
in deciding whether such financial
responsibility is either necessary or
desirable and in formulating
requirements for such financial
responsibility.
The primary purpose of the financial
responsibility requirements for closure
and post-closure care is to assure that
funds will be available when needed to
perform those activities. The Agency
established these requirements in light
of its conclusion that in their absence,
some owners or operators of hazardous
waste management facilities would be
unwilling or unable to perform closure
and post-closure care or make funds
available to do so. The Agency imposed
these requirements during the operating
life of the facility because there is very
little economic incentive for an owner or
operator of a facility to perform closure
and post-closure activities at the end of
that facility's useful life when its value
is minimal.
Similarly, the primary purpose of any
financial responsibility requirements for
corrective action would be to assure
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32280 Federal Register / Vol. 47, No. 143 / Monday, }uly 26, 1982 / Rules and Regulations
that money will be available when
needed to conduct necessary corrective
action measures. The Agency expects
that any financial responsibility •
requirements for corrective action which
it may establish would be similar to the
existing financial responsibility
requirements for closure and post-
closure care. However, there are
fundamental differences between the
nature of the requirements for corrective
action and those for closure and post-
closure care. These differences pose.
difficult questions regarding whether
similar, financial responsibility
requirements are appropriate for
corrective action as those established
for closure and post-closure care. Unlike
the closure and post-closure care
requirements, it may be very difficult to
determine with a reasonable degree of
certainty during the operating life of a
facility whether corrective action
measures will be required at a facility
and if so, the amount of money
necessary to perform those measures.
Unless these issues are properly
resolved, the financial responsibility
requirements for corrective action may
either provide very little assurance that
the necessary corrective action will be
performed at a facility when needed, or
impose a very high cost upon owners
and operators of hazardous waste
management facilities which, in many
cases, will not require any corrective
action.
The most difficult issue facing the
Agency is determining when it should
require the owners or operators of a
.facility to demonstrate financial
responsibility for corrective action. In
developing the financial responsibility
requirements for closure and post-
closure care, the Agency learned that
the cost of demonstrating financial
responsibility for activities like
corrective action can be quite
substantial. However, in the case of the
financial responsibility requirements for
closure and post-closure care, the
Agency concluded that those
requirements were appropriate even
though the costs are substantial because
it isvcertain that closure and post-closure
care will be-needed at facilities and they
must be provided promptly to protect
human health and the environment. In
contrast, however, the Agency expects
that for many facilities, the only time at
which it will be certain that corrective
action will be required is shortly before
the corrective action measures are to be
undertaken. This, in many cases, will be
after the facility has closed.
Consequently, the Agency is faced with
at least three options: (1) requiring the
owners or operators of all facilities to
demonstrate financial responsibility for
corrective action during the opera ting
life of the facility; (2) requiring owners
or operators of only those facilities at
which the need for corrective action has
been established to demonstrate ,
financial responsibility for that action;
or (3) requiring the owners or operators
of certain facilities to demonstrate
financial responsibility only upon the
occurrence of some other event (such as
the commencement of compliance
monitoring).
Each of these options has significant
drawbacks. Under the first option, there
is a substantial likelihood that many
owners and operators will be required
to spend substantial amounts of money
to demonstrate financial responsibility
' for corrective action which they will
never be required to undertake. Under
the second option, there may be a
substantial number of owners or
operators that will be unable or
unwilling to assure that funds will be
available for corrective action after their
facility has closed, leaving no funds
available to perform the needed
corrective action. The third option may
suffer from the problems presented
under both options one and two. The
Agency solicits comments on this issue
and is specifically interested hi
suggestions on alternative approaches.
A second major issued relating to the
financial responsibility requirements is
the appropriate method for determining
the amount of funds to be assured.
Unlike the closure and post-closure
requirements, the amount of money
necessary to complete required
corrective action may be extremely
difficult to estimate before the need for
corrective action has been established
and may even be difficult to estimate
once its need has been established.
Consequently, if the Agency were to
establish a financial responsibility
requirement for corrective action, the
Agency would have to develop a basis
for determining and appropriate amount
of funds to be assured. One alternative
is a schedule which establishes various
amounts to be assured depending upon
the size and type of facility, .the number
of years which the facility has been in
operation, conformity to design and
operating standards, and other relevant
factors. Comments are requested on
these issues.
The Agency expects that financial
responsibility for corrective action could
be demonstrated by the same financial
assurance mechanisms which may be
used to demonstrate financial
responsibility for closure and post-
closure care (trust funds, surety bonds,
letters of credit, insurance, financial test
and corporate guarantee, and state
guarantees). The Agency believes these
mechanisms would provide an
appropriate level of assurance that
funds would be available when needed
for necessary corrective action.
Insurance, such as is available for on-
site cleanup of nuclear waste facilities,
may be particularly appropriate for
corrective action because of the
contingent nature of corrective action.
Insurers will be able to spread the risk
associated with funding corrective
action and thus should be able to reduce
the costs which owners and operators
would have to bear to provide financial
responsibility for this activity.
Comments are solicited on whether any
other financial mechanism might be
used to provide financial assurance for
corrective action and whether any
modifications of the closure and post-
closure mechanisms would be required
to make them appropriate for corrective
action.
An additional issue related to
financial responsibility requirements for
land disposal facilities concerns the
relationship of the Post-closure Liability
Trust Fund under Section 232 of the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) to these regulations.
Under pERCLA Section 107(Jc). the
liabilities of a hazardous waste disposal
facility are transferred to the Fund only
if the following conditions are met:
1. The facility has received a permit
under Subtitle C of RCRA;
2. The facility has complied with its
permit and has been properly closed in
accordance with the permit; and
3. The facility and surrounding area
has been monitored for up'to five years
after closure to demonstrate that there is
no substantial likelihood for hazardous
substances to migrate off-site or to be
released from confinement, or for other
risks to public health or welfare.
The Fund does not begin to build up, via
a tax on hazardous waste received at
qualified hazardous waste disposal
facilities, until October 1,1983.
As EPA develops its approach to
financial responsibility for corrective
action, it will consider how best to
relate that approach to the provisions of
the Post-closure Liability Trust Fund
under CERCLA. EPA solicits comments
on this issue.
2.. Monofills and Neutralization . .
Surface Impoundments. The Agency
believes that two types of waste
management units covered by today's
Part 264 permitting standards should not
be subject to the full set of standards
promulgated today. These are monofills
and neutralization surface •
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32281
impoundments. EPA intends to propose
separate standards for these units.
Monofllls are landfills, surface
Impoundments, or waste piles used to
treat, store or dispose of one or more of
a small group of inorganic wastes. This
group includes wastes that are
hazardous solely because they exhibit
the characteristic of EP toxicity (defined
in § 281.24). EP toxicity is a
characteristic that indicates the
likelihood that certain metals and other
constituents could be leached by an
acidic leaching medium in significant
concentrations. This group is further
limited to specific wastes that the
Agency formally finds would not leach
significant concentrations of these
constituents in the absence of an acid
leaching medium. At present, the
Agency expects that the following
wastes may meet the above criteria and
thus would be eligible for inclusion in a
future regulation concerning monofills:
1. Incinerator ash;
2. Residues from foundry furnace emissions
controls;
3. Metal casting molding sand;
4. Cement kiln dust and clinker;
5. Hydroxide and carbonate sludges
resulting from the treatment of plating bath
waste;
6. Residues from titanium dioxide
production;
7. Oven residue from the production of
chrome and oxide green pigments (listed in
1201.32 as waste K008); and
8. Emission control dust or sludge from the
production of steel (including the waste listed
in § 261.32 as K081).
Under management conditions that
preclude contact between the above
wastes and acids, EPA believes that
there may be an extremely low
likelihood that significant
concentrations of hazardous
constituents could leach into nearby
ground waters. In essence, although
these wastes have the potential to cause
substantial harm if mismanaged (since
they exhibit the characteristic of EP
toxicity), they may be managed in a way
that makes it very unlikely for this harm
to occur. Therefore, EPA believes that it
may be unnecessary to require monofills
that prevent waste-acid contact to
comply with the full Part 264 standards.
Neutralization surface impoundments
are surface impoundments that (1) are
used to neutralize wastes that are
hazardous solely because they exhibit
the characteristic of corrosivity
(§ 281.22) or have been listed in Part 261
Subpart D solely for this reason; (2)
contain no other wastes; and (3)
neutralize the corrosive wastes
sufficiently rapidly so that there is no
potential for migration of hazardous
wastes from the impoundment. EPA
believes that, like monofills,
neutralization surface impoundments
. may present low enough risks to ground
water to justify the imposition of less
than the full Part 264 standards. (Indeed,
EPA recently promulgated a regulation
that provides an opportunity for
neutralization impoundments to obtain a
waiver from the Part 265 interim status
ground-water monitoring requirements.
See 47 FR1254, January 11,1982.)
The Agency is preparing a proposal to
establish a separate set of standards for
monofills and neutralization surface
impoundments that are less extensive
than the general standards but are
equally protective of human health and
the environment. It expects to be able to
publish this proposal soon. In the
meantime, until the final set of reduced
standards are promulgated, EPA will
assign its lowest land-disposal
permitting priority to monfills and
neutralization surface impoundments
and will focus its permitting efforts on
other types of waste management units.
3. Underground Injection Wells.
Underground injection wells are unique
among waste management units hi that
they are specifically regulated under a
separate statute as.well as under RCRA.
Under the Safe Drinking Water Act
(SDWA), EPA regulates the subsurface
injection of liquids in wells through the
underground injection control (UIC)
program. SDWA, Section 1421 et seq.
UIC regulations are set forth in 40 CFR
Parts 122-124 and 146. Where the liquids
injected are hazardous wastes, there is
overlapping jurisdiction between the
UIC program and the 'RCRA hazardous
waste program.
Because of the overlapping
jurisdictions between SDWA and
RCRA, EPA has promulgated a permit-
by-rule for injection wells in § 122.26(b).
That section provides that the owner or
operator of an injection well disposing
of hazardous waste will be deemed to
have a RCRA permit if he (1) has and
complies with an UIC permit, and (2)
complies with special requirements in
§ 122.45 for wells injecting hazardous
waste.
The development of UIC standards
under SDWA addressing the injection of
hazardous wastes is not yet complete.
EPA recently settled two lawsuits that
challenged the regulations initially
promulgated to implement the UIC
program. Natural Resources Defense
Council v. EPA (D.C.Ci'r., No. 80-1607
and consolidated cases); American
Petroleum Institute v. EPA (D.C.Cir., No.
80-1875A and consolidated cases).
Based upon these settlements, EPA has
promulgated revised UIC regulations 47
FR 4992, February 3,1982. Those
regulations contained standards for'two
types of hazardous waste injection
wells: Class I wells (those that inject
waste below underground sources of
drinking water), and those Class IV
wells in which waste is injected directly
into underground sources of drinking
water. UIC standards have not been
promulgated for Class IV wells in which
waste is, injected above underground
sources of drinking water.
Because of the interaction between
the RCRA and UIC programs, EPA could
not separately promulgate RCRA
standards today for_Class IV wells in
which wastes are injected above
underground sources of drinking water.
However, EPA intends to develop
standards for this limited set of facilities
and issue them in a manner that ensures
continued consistency between the UIC
and RCRA regulatory programs.
4. Tailoring of Standards for Specific
Wastes. Apart from the specific
regulatory activities discussed
immediately above, EPA is conducting
regulatory impact analyses for each of
the various types of waste management
units. In addition, it is conducting a
"degree-of-hazard" study which will
examine various combinations of waste
types and volumes, treatment and
disposal technologies, and
environmental settings. This study is
intended to identify ways in which
RCRA Subtitle C standards could be
tailored to better address particular
problems.
Based upon these studies, EPA hopes
to propose appropriate regulatory
amendments in 1983 and promulgate
them in 1984.
5. Units Not Covered by Promulgated
Standards. The Part 264 regulations
promulgated to date, together with
future regulations for underground
injection facilities and for underground
tanks that cannot be entered for
inspection, are intended to regulate all
types of treatment, storage, and disposal
facilities. It is possible, however, that
some hazardous waste management
practice is currently used, or may be
developed in the future, that does not fit
the description of any of the specific
units (containers, tanks, surface
impoundments, waste piles, land
treatment units, landfills, incinerators,
and underground injection wells) that
are covered or are soon to be covered
by specific Subparts of Part 264.
EPA is considering promulgating
regulations in a separate Subpart to
address waste management units that
are not covered by another unit-specific
Subpart. Such regulations would consist
of general environmental performance
standards similar to those contained in
§ 267.10.
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EPA solicits comments on what type
of units, if any, are currently in
existence, or likely to come into
existence in the near future that are not
covered by the current Part 264
regulations. EPA also solicits comments
on the appropriate means to write
standards for such units in compliance
with Section 3004 of RCRA.
V. Relationship of the Part 264 Land
Disposal Standards to Other RCRA
Subtitle C Regulations
A. Relationship to the Part 265 Interim
Status-Standards
EPA has made these land disposal
standards consistent with the interim
status land disposal standards. The
basic interim status design and
operating standards [e.g., controls on
run-on and run-off, freeboard for surface
impoundments, inspection, and
restrictions on landfilling liquid,
ignitable, and reactive wastes) are
continued in the Part 264 standards,
although sometimes in modified form. In
some instances, based upon comments
submitted on the May 19,1980 interim
final regulations, EPA determined that
some modification of the Part 265
interim status standards is warranted. In
such cases, EPA has amended those
standards in the Part 265 rules
promulgated today and based the new
Part 264'standards on the amended Part
265 standards.
One important area where EPA has
ensured consistency is ground-water
monitoring. As explained hi Section VI
of this preamble, ground-water
protection standards and monitoring
requirements are a centyal element of
the Part 264 land disposal standards.
Ground-water monitoring systems that
have been installed at the limit of the
waste management area to comply with
the monitoring requirements of Part 265
Subpart F may also be used to perform
the ground-water monitoring required by
Part 264 Subpart F. Thus while the
ground-water monitoring programs in
Parts 264 and 265 differ, they are fully
compatible.
B. Relationship to the Part 267
Standards for New Land Disposal
Facilities
As discussed above in Section II.C. of
this preamble, the temporary Part 267
standards for new landfills, surface
impoundments, and waste piles expire
on January 26,1983, and will be
superseded by today's Part 264
standards on that date.
C. Relationship to Standards for'Storage
Surface Impoundments and Storage
Piles Promulgated on January 12,1981
On January 12; 1981, EPA
promulgated, in interim final form, Part
264 standards for new and existing
surface impoundments and waste piles
that are used for storage or treatment of
hazardous wastes and are designed and
operated to prevent discharges into the
land, ground water, and surface water
(except as authorized by a National
Pollutant Discharge Elimination System
permit). The standards (40 CFR Part 264,
Subparts K and L) provided for the
containment of all wastes during the
unit's operating life, followed by
removal of wastes at closure. No
ground-water monitoring was required.
These standards will be entirely
superseded by today's regulations on
January 26,1983. Consequently, EPA
today is withdrawing its,October 20,
1981, proposal to suspend the effective
date of the January 12,1981, standards
as they apply to existing storage surface
impoundments. (46 FR 51407)
Discussions of the major differences
between the January 12 regulations and
today's regulations, and of how the
transition from the January 12
regulations will be effected are
contained in Sections VII.F. (Surface
Impoundments) and VII.G. (Waste Piles)
of this preamble.
D. Relationship to the Consolidated
Permit Regulations
Procedures for issuing and modifying
hazardous waste permits are contained
in 40 CFR Parts 122 and 124. These
procedures apply to permitting the land
disposal facilities covered by the Part
264 technical standards promulgated
today.
The permitting procedures hi Parts 122
and 124 will be used in a variety of
contexts other than initially permitting
facilities. As discussed later in this
preamble, the ground-water protection
program in today's regulations contains
several types' of requirements that may
need to be specified after the permit has
been issued and would thus require
interaction between the permittee and
permit-issuing authority. These include
detailed "compliance monitoring"
programs which must be developed and
implemented when initial "detection
monitoring" indicates that waste
constituents have entered the ground
water beneath the waste boundary; and
corrective action programs that must be.
developed and implemented when
compliance monitoring indicates- that
the ground-water protection standard
has been violated. In each of these
cases, the Part 124 procedures will be
used to modify the permit.
Today's regulations contain some •
amendments to the Part 122 permitting
standards. These are designed to
conform the permit requirements, and
especially the permit application
requirements, to the new standards
promulgated today. See the discussion
below in Section VII. K. of this
preamble.
E. Relationship to Requirements for
State Program Authorization
1. General Discussion. Like several
other Federal environmental statutes,
RCRA authorizes EPA to approve State
programs. Once approved, these
programs operate hi lieu of the Federal
program within their respective
jurisdictions. See Section 3006 of RCRA.
Regulations governing EPA approval of
State hazardous waste programs are
contained hi 40 CFR Part 123 (45 FR
33456, May 19,1980; 46 FR 7964 and
8298-8310, January 26,1981).
' 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 a 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 to withdrawal by EPA for
causes specified in Section 3006(e) of
RCRA); a State may obtain final
authorization by demonstrating that its
program (1) is "equivalent to" the
Federal program, (2) is "consistent with"
the Federal program, and (3) provides
adequate enforcement.
2. Interim Authorization. Because EPA
has promulgated its Section 3004
standards hi several stages, it has
provided that States may apply for and
receive interim authorization in stages.
Phase I allows States to administer
programs hi lieu of and corresponding to
that portion of the Federal program
which covers identification and listing
of hazardous waste (40 CFR Part 261)
and generators and transporters of
hazardous waste (Part 262 and 263), and
establishes interim status standards for
hazardous waste treatment, storage, and
disposal facilities (Part 265). Phase II
allows States, to administer permit
programs for hazardous waste
treatment, storage, and disposal
facilities; the permits must apply
standards substantially equivalent to
the Federal Part 264 standards. As each ,
component of Part 264 standards is
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promulgated, EPA announces in a
Federal Register notice that States may
apply for interim authorization for that
component (as well as previously
promulgated components). See 40 CFR
123.121(c)(2). In a separate notice in
today's Federal Register, EPA is
announcing the contents of Component
C of Phase n interim authorization,
which addresses State program analogs
to today's regulations.
3. Final Authorization, With the
promulgation today of permanent Part
264 standards for landfills, surface
impoundments, waste piles and land
treatment units, the RCRA Subtitle C
program is now virtually complete.
Because the Federal regulatory program
is almost complete, EPA believes it is
now appropriate to begin granting final
authorization to States whose programs
are consistent with and equivalent to
the Federal program and which provide
adequate enforcement. In the notice in
today's Federal Register announcing the
contents of Component C, EPA is also
announcing that States may now apply
for final authorization.
VI. Strategy For Protection
In assuring that today's regulations
adequately protect human health and
the environment, EPA has addressed
potential adverse effects on ground
water, surface water, and air quality.
This section describes generally how
today's regulations protect each of these
three environmental media and how
EPA intends to refine its regulatory
approach over time.
A. Ground Water
Ground-water protection has been one
of EPA's central concerns in devising a
regulatory strategy for hazardous waste
land disposal. A large number of the
documented damage cases from
hazardous waste land disposal have
involved ground-water contamination.
Likewise the legislative history of
RCRA, including the damage cases cited
in the 1976 Senate Report, indicates that
the Congress was quite concerned about
ground-water contamination when it
created the hazardous waste program.
Accordingly, today's regulations deal
very explicitly with ground-water
protection.
1. Considerations Guiding the
Ground-water Protection Strategy.
EPA's ground-water protection strategy
under these regulations has been shaped
by a variety of policy concerns. EPA's
decisions on the regulations have been
particularly influenced by five general
considerations of regulatory policy.
While several of these have been
discussed in previous Federal Register
notices on land disposal, it is helpful to
discuss them here because they provide
a useful context in which to explain the
overall strategy of today's regulations.
Fust, EPA has concluded that the
regulations should be designed to reduce
some of the uncertainties associated
with hazardous waste disposal. Such an
• approach allows owners and operators
to do intelh'gent planning for their
operations and helps to assure the
public that safe practices are being used.
EPA wants to make sure that the
issuance of a RCRA permit for a facility
means that a certain level of protection
is provided and that the public can be
assured that the prescribed level of
protection will be achieved.
The way to meet this objective is to
avoid regulatory schemes that
principally rely on complicated
predictions about the long term fate,
transport, and effect of hazardous
constituents in the environment. Such
predictions are often subject to scientific
uncertainties about the behavior of
particular constituents in the
hydrogeologic environment and about
the effects of those constituents, on
receptor populations. Likewise, the
magnitude of the potential effects '
depends on future institutional factors
[e.g>, land-use patterns in the area
around the facility, the intentions of the
owner or operator to remain at the site)
that can also be a source of uncertainty.
Therefore, while EPA acknowledges that
there are situations where predictions of
future effects can be made reasonably, it
intends to emphasize regulatory
measures that do not require- such
predictions.
Second, EPA's strategy for protection
must consider the unique characteristics
of ground water. Ground water is a
fragile resource. Once contaminated, an
aquifer remains polluted for a relatively
long time and it may be extremely
difficult to restore the quality of the
water in the aquifer. At the same time, it
is often easier to limit the impact of
polluted ground water on human health
and the environment than it is to limit
the impact of polluted surface water or
air. Ground water does not rovide a
habitat for fish or wildlife, and hitman
use of ground water is usually limited to
situations where the ground water is
withdrawn for particular purposes. Thus
by assuring that ground-water quality is
compatible with the various uses to
which it may be put, EPA can be
reasonably sure that human health and
the environment will be protected.
Third, EPA has concluded that the
standards issued today should not stifle
innovation. The recent attention given to
hazardous waste management in this
country is a relatively new phenomenon.
EPA expects that the state of scientific
knowledge about how to control
hazardous wastes will make significant
strides in the next few decades. In order
to avoid creating impediments to such '
technological innovation, EPA has tried
to use performance standards whenever
possible. Performance standards
establish environmental, design, or
operating objectives and leave to the
owner or operator and the permit-
issuing authority the decision of what
the most appropriate design and
operating measures are for achieving the
standard. Besides being more cost-
effective, such an approach keeps EPA,
the States, and the public focused on the
issue that is of greatest concern—the
environmental results that can be
expected from the facility.
Fourth, EPA has concluded that the
purposes of RCRA cannot be achieved
unless the standards for land disposal
facilities are capable of being
implemented in the context of the permit
program. Permitting agencies (at the
State and Federal level) must be able to
issue permits to environmentally-
acceptable facilities and to deny permits
to those facilities that cannot provide
adequate levels of environmental
protection.
In order to meet this need, EPA's
regulatory approach must be one that
can be implemented quickly and that
limits the need to conduct complex,
time-consuming analyses on the
behavior and effects of hazardous
constituents in the environment. This
latter consideration is particularly
important because the national pool of
experts on such topics as the fate and
transport of hazardous waste
constituents in the subsurface
environment is quite limited and should
be conserved for those situations where
such analysis must be done. Therefore,
EPA believes that the strategy for
protection under these regulations
should emphasize standards that
provide a clear indication to the
regulated community of what is
expected. Such certainty should reduce
the time involved in acting on permits
and should avoid the need for complex
analyses with uncertain outcomes.
Fifth, EPA has concluded that the
regulated community should be required
to devote the bulk of its environmental
protection expenditures to measures
that are most likely to produce
significant environmental results. There
is a limited amount of resources
available to provide environmental
protection and these resources should
be used in the most cost-effective
manner possible. A regulatory strategy
which tends.to require exhaustive data
collection and analysis prior to
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permitting doesn't serve that goal.
Expenditures on such analysis are often
better spent on design and operating
measures that have been shown to be
effective in controlling hazardous waste.
While EPA is willing to explore new
ideas in hazardous waste management
with permit applicants, it does not
intend to establish standards that
require exhaustive analyses hi order to
determine whether they have been met.
2. Alternatives Examined. In the
course of rulemaking on the land
disposal regulations, EPA has
. considered (and sought comment) on a
variety of alternative approaches to
regulation. In previous Federal Register
notices EPA has identified at least five
possible regulatory approaches:
1. Design and Operating Standards—
Such standards would require
installation of specific equipment or use
of particular practices: An example is a
liner specification such as 2 feet of clay
with a permeability of 10" * cm/sec.
2. Technical Performance
Standards—Such standards establish an
engineering objective and allow the
permit applicant to develop a design or
set of practices to achieve the objective.-
An example is a requirement to develop
a run-off control system that can
accommodate the water volume from a
specified storm event (e.g., 24-hour, 25-
year storm).
3. Containment Standard—Such a
performance standard would require
that the permittee keep waste or waste
constituents within a certain area for a
fixed period of time. An example is a
liner standard requiring that the liner be
able to contain waste for 100 years.
4. Environmental Performance
Standards—Such standards specify
limits (usually numerical) on levels of
contamination that may be tolerated in
the environment. An example is a
ground-water quality standard for the
ground water below the facility.
5. Risk Assessment Standard—Such a
standard would establish broad
narrative criteria'to guide the permit-
issuing authority in doing a site-specific
assessment of the risks associated with
the facility and in developing permit
conditions that reduce the risk to
acceptable levels. An example is a
standard which requires the permit
applicant to demonstrate that there will
be no significant risk of cancer resulting
from the facility.
Each of these approaches has its own
advantages. Generally, EPA believes
that technical performance standards in
conjunction with environmental
performance standards provide the right
mix of certainty and flexibility to be
implementable and to assure the proper
emphasis on the environmental results
of control measures. Wherever possible,
today's regulations have relied on these
approaches. Performance standards,
however, are often difficult to develop
and it has not been possible in the tune
allowed to promulgate these regulations
for EPA to develop performance
standards for all situations. Therefore,
some of the standards in today's
regulations draw upon other regulatory
approaches (e.g., design standards).
Over time EPA intends to refine the land
disposal regulations to develop
performance standards that apply to
more situations and to make more
explicit the performance standards
established In today's regulations.
3. Control Strategy. Based on the
considerations outlined above and on
the comments received during
rulemaking, EPA has developed a
strategy for ground-water protection at
land disposal facilities that it believes is
adequate to protect human health and
the environment. The fundamental goal
of the regulations is to minimize the
migration into the environment of the
hazardous component of waste placed
in land disposal units. EPA's strategy for
achieving this goal has two basic
elements. One element is a liquids
management strategy for the disposal
units at the facility that is intended to
minimize leachate generation in the
waste management units and to remove
leachate from the waste management
units before it enters the subsurface
environment. This is the "first line of
defense" in the sense that it seeks to
prevent ground-water contamination by
controlling the source of the
contamination. The other element of the
general strategy is a ground-water
monitoring and response program that is
designed to remove leachate from the
ground water if it is detected. The
monitoring and response program serves.
as a backup to the liquids management
strategy.
a. Liquids Management Program—
When hazardous wastes are in liquid
form or are mixed with other liquids,
they are in a form .which presents the
greatest threat to ground water because
of their potential for migration in the
, subsurface environment. EPA believes,
therefore, that a systematic effort to
reduce the volume of liquids that can
potentially enter the subsurface
environment should be a basic tenet of
any ground-water protection strategy.
There are two aspects of a prudent
liquids management strategy. First, the
generation of leachate should be .
minimized, primarily by keeping liquids
out of the waste management units.
Second, reasonable steps should be
taken to remove liquids from the units
before they enter the subsurface
environment.
Today's regulations establish a liquids
management strategy for each type of
land disposal unit under Subparts K-N.
These portions of the regulations
establish the principal technical
requirements for surface impoundments,
waste piles, land treatment units, and
landfills. These requirements vary
somewhat between Subparts depending
on the characteristics of each unit type,
but they do fall into a few general
categories. To avoid the generation of
leachate, the owner or operator of some
types of units will be required to control
run-on to the unit, to substantially
restrict the placement of liquid waste or
waste containing free liquids, or to place
a cap on the unit at closure. To prevent
the migration of liquids into the
environment, the owner or operator may
be required to place underliners below
the waste, to install leachate collection
and removal systems, to assure the
structural integrity of any dikes used at
the unit, to control run-off from the unit,
to treat hazardous constituents, or to
remove free liquids at closure.
Today's regulations have stated these
requirements as performance standards
to the extent possible. EPA also intends
to issue guidance that will describe
specific design and operating measures
that may be used to satisfy die
performance standards.
EPA believes that the placement of
liners beneath the waste in a land
disposal unit is often a key element hi a
general liquids management strategy. It
should be emphasized, however, that
liners must be viewed as components of
an overall liquids management system.
A liner is a barrier technology that
prevents or greatly restricts migration of
liquids into the ground. No liner,
however, can keep all liquids out of the
ground for all time. Eventually liners
will either degrade, tear, or crack and
will allow liquids to migrate out of the
unit. It is, therefore, important that other
measures be taken to remove liquids
from the unit during the tune that the
liner is most effective (i.e., during the
active life of the facility). Leachate
collection and removal systems at
landfills and measures to remove free
liquids from surface impoundments at
closure are the principal technique?;
used to remove liquids.
EPA's view of the function of a liner
contrasts somewhat with that of some
members of the public and the regulated
community. Some have argued that
liners are devices that provide a
perpetual seal against any migration
from a waste management unit. EPA has
concluded that the more reasonable
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assumption, based on what is known
about the pressures placed on liners
over tune, is that any liner will begin to
leak eventually. Others have argued that
liners should be viewed as a means of
retarding the movement of liquids from
a unit for some period of time. While
this view accords with how liners do in
fact operate, EPA does not believe that
this is a sound regulatory strategy for
ground-water protection because it is
principally designed to delay the
appearance of ground water •
contamination rather than to achieve a
more permanent solution. Accordingly,
EPA views liners as a barrier technology
that can be best used to facilitate the
removal of liquids from a waste
management unit during its active life
(including the closure period) and
thereby provide a greater assurance of
long-term protection at the facility.
While liners may remain effective at
preventing migration from the unit until
well after closure, their principal role
occurs during the active life. After
closure, EPA believes that a protective
cap becomes the prime element of the
liquids management strategy. A well-
designed and carefully maintained cap
can be quite effective at reducing the
volume of liquids entering a unit and
therefore can substantially reduce the
potential for leachate generation at the
unit for long periods.
b. Ground-Water Monitoring and
Response Program—Hie second
element of the overall ground-water
protection strategy in the regulations is-
the monitoring and response program
established in Subpart F. This is a
program that requires graduated levels
of monitoring and corrective action
responsibilities that increase as the
evidence of ground xvater contamination
increases.
When there is no evidence of ground-
water contamination, the owner or
operator is simply required to montor to
detect whether leachate has entered the
ground water. Once there is evidence
that a unit is leaking, the owner or
operator takes on the responsibility of
defining the potentially dangerous
component of the leachate entering the
ground water and monitoring to assure
that the level of hazardous constituents
in the ground water does not exceed
concentrations that could adversely
affect human health and the
environment. If the leachate causes
increases that exceed a specified
ground-water protection standard for
the unit, corrective action measures
must be taken to achieve compliance
with that standard.
Unlike the liquids management
strategy for the unit, which seeks to
minimize the total rate and volume .of all
liquids emerging from the unit, the
monitoring and response program forces
EPA and the owner or operator to
address specific chemical constituents
in the leachate coming from the unit.
EPA believes that this increased
concern with the specific chemical
components of leachate is appropriate
considering the situation addressed by
the monitoring and response program.
This element of the ground-water
protection strategy is concerned with
hazardous waste leachate that has
actually entered the ground water and
thus is at a point where adverse
environmental impacts are most
imminent. EPA believes that a careful
examination and consideration of the
potential effects of the specific
constituents in hazardous waste
leachate is necessary at that tune in
order to assure that the statutory
mandate to protect human health and
the environment is achieved.
In contrast, it is not necessary to
know the complete chemical
composition of hazardous waste at
stages that are more remote from the
point of actual impact on the
environment. For example, it is not
necessary to know every element of a
waste before listing it as a hazardous
waste. The presence of some
constituents which could cause potential
hazards to human health or the
environment under some management
scenario is sufficient to warrant
identifying a waste as hazardous.
Likewise, at the time of placement of
waste in a land disposal unit it would be
appropriate to focus on the broad
characteristics of the waste! such as the
liquid content or corrosive
characteristics of the waste. Thus the
increased level of concern with the
specific makeup of hazardous waste
leachate at the time of its discovery in
ground water is fully consistent with the
general philosophy of the monitoring
and response program—increasing
attention to the constituents in the
waste as the evidence of imminent
adverse impact on ground water
increases.
The monitoring and response program
in today's regulations is to be instituted
in the ground water immediately outside
the waste management area. EPA
believes that the owner and operator
should be capable of controlling
hazardous' constituents in the
environment as soon as possible after
they appear hi the environment. As will
be discussed later, there may be some
situations in which human health and
the environment will not be threatened
if hazardous constituents in the ground
water move beyond the waste
management boundary. This possibility
does not, however, obviate the need to
establish the monitoring and response
program as close to the waste as
possible.
Early detection of contamination
allows the owner or operator as well as
the permitting authority the additional
time needed to develop corrective action
measures that will be successful and
cost-effective. It is also sound policy to
conduct corrective action close to the
waste in order to minimize ground-water
depletion on the aquifer, to increase the
cost-effectiveness of the corrective
action, and to reduce substantially the
possibility that a plume of
contamination will migrate beyond the
owner or operator's control.
A key element of the monitoring and
response program is the establishment
of a ground-water protection standard
for the waste management units. The
principal purpose of this standard is to
indicate the level of ground-water
contamination that triggers the need for
corrective action measures. The ground-
water protection standard also defines
the constituents that must be addressed
in the compliance monitoring program
(the monitoring scheme that must be
used when hazardous waste leachate
has entered the ground water).
Where possible, the ground-water
protection standard is based on
environmental performance standards
that establish numerical concentration
limits for individual contaminants.
Specifically, EPA has relied on the
National Interim Primary Drinking
Water Regulations to establish
maximum contaminant limits for a
particular set of toxic metals and
pesticides. .EPA hopes to eventually
expand the list of constituents for which
specific health-based concentration
limits may be used.
Where such environmental
performance standards are not available
for chemical constituents that are
known to be hazardous, EPA has
provided that the action level which
triggers corrective action will be any
statistically significant increase over the
background level of the constituent in.
the ground water below the waste
management unit. EPA believes that this
is a reasonable approach for three
reasons. First, as will be discussed in
more detail later, it is the best of the
available alternatives. Second, a "no
increase over background" standard
assures that causation (namely the fact
that'the facility is the source of the
increased concentration) is established
at the same time that noncompliance
with the ground-water protection
standard is determined. This approach
avoids the possibility that the owner or
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operator would be forced to clean up the
ground water even though hazardous
constituents had not migrated from his
units into ground water.
Third, this approach is consistent with
a ground-water protection philosophy
that seeks to maintain ground-water
quality necessary for current and future .
uses. Background ground-water quality,
independent of the effects of hazardous
waste disposal, will define the highest
use to which a particular aquifer may be
put. An aquifer which is already too
dirty to be used as a drinking water
source will certainly not be transformed
into a prime drinking water supply with
the advent of hazardous waste disposal
activities in the area. A regulatory
strategy that prevents increases over
background levels of contamination
assures that the existing and potential
uses of that aquifer will be maintained.
In some cases, state authorities may
have clearly defined what those uses
are. In other areas, these uses may be
established by custom or by agreements
between private parties. In any case, the
maintenance of background quality
should ensure that hazardous waste
disposal activities will not adversely
affect other uses of ground water in the
area.
This latter justification for the "no
increase over background" standard
also suggests a basis for modification of
the ground-water protection standard. It
is possible that some increases in the
levels of particular constituents in
ground water can be tolerated without
adversely affecting current and future
use of the ground water beyond the
facility. Accordingly, EPA has provided
a mechanism for allowing the
establishment of alternative
concentration limits, above background
levels, for hazardous constituents
covered by the ground-water protection
standard. EPA has concluded that such
an option is a reasonable element of any
ground-water protection scheme and
does not create a major loophole in the
regulatory scheme.
Rational choices can be made about
the uses of ground water in an area and
about the limits on contamination that
are-necessary to protect those uses. EPA
has concluded that public confidence in
such decisions will be enhanced,
however, by assuring that a decision to
establish an alternative concentration
limit is .the result of a deliberative
process. Therefore EPA has required
that there be a full consideration of all
relevant factors before setting
alternative concentrations limits.
Likewise, EPA has made it clear that the
burden of proof in justifying an
alternative concentration limit lies with
the permit applicant.
The effectiveness of the monitoring
and response program depends
ultimately on the success of corrective
action measures. EPA expects that
corrective action measures will prove to
be effective in many places. The
national experience with ground-water
cleanup, however, is relatively limited at
this time. EPA expects that over time the
state of knowledge about ground-water
cleanup measures will improve. As our
experience with corrective action
measures improves, it may be necessary
to broaden or narrow the use of
corrective action .measures in the land
disposal regulations.
There are two aspects of the
corrective action program established in
today's regulations that reflect a
recognition of the uncertainties
associated with ground-water cleanup.
First, EPA has not made corrective
action the only means for ensuring
ground-water protection at land disposal
facilities. EPA has concluded that a
sound liquids management strategy can
be the prime method for providing long-
term protection of ground water at land
disposal facilities. The monitoring and
response program is a back up program
which becomes most important if the
liquids management strategy fails.
Ultimately, then, this regulatory
approach relies on corrective action
measures only when all other .
reasonable measures to control ground-
water pollution have failed.
Second, any corrective action program
required under today's regulations must
be designed to meet the ground-water
protection standard by removing waste
constituents or by treating them in
place. Thus, the program emphasizes
measures that are most likely to achieve
relatively permanent results, in contrast
to corrective action measures that
simply create barriers or modify the
gradient in the ground water to prevent
migration. Such techniques may provide
good controls for some period of time
but their effects are necessarily less
permanent than a strategy that
emphasizes removal or in place
treatment of contaminants. As discussed
below, EPA has decided that owners
and operators will not be expected
generally to conduct compliance
monitoring and corrective action
programs forever. It is, therefore, all the
more appropriate to emphasize
corrective action measures that can be
expected to achieve relatively
permanent results.
c. Time Frame of Protection
Strategy—There is often a substantial
lag time between the act of waste
disposal and the appearance of any
adverse effects on ground water from
that disposal. This simple physical fact
has raised major policy issues that have
been some of the most difficult
questions that EPA has had to consider
in the development of today's
regulations.
In the Agency's view, there seems
little doubt that the general goal of any
strategy for protecting ground, water
from hazardous waste should be to
provide protection for a very long time.
Ground water is a relatively abundant
resource in this country, but it is also a
fragile one that is not easily cleaned up
once it is contaminated. Moreover,
many of the chemical constituents
present in hazardous waste do not
degrade over time or do so at very slow
rates. Thus, it can be expected that a
hazardous waste land disposal unit
presents some risk to ground water well
into the future.
While this line of thinking may
suggest that the regulations should be
aimed at perpetual protection, EPA has .
concluded that no useful purpose is
served by announcing a regulatory
strategy that professes to protect ground
water forever. First, such a professed
objective is ultimately misleading/While
proper hazardous waste management
practices can provide long-term
protection, it is impossible to specify
with any degree af accuracy how those
technologies will perform several
hundred years from now. Certainly it is
impossible to attempt to predict and
design for all potential future turns in.
human events (e.g., acts of war) and
geologic history (e.g., another Ice Age).
Second, such a regulatory philosophy
does not reflect a proper attitude toward
the future. We cannot assume that our
ability to cope with the environmental
risks associated with hazardous waste
disposal will not improve in the future.
(The technology for controlling
hazardous wastes in particular is
currently in an embryonic stage and
EPA expects that substantial progress
will be made in this field in the near
future.) This is not a misplaced faith in
the salvation of future technology but
rather a simple recognition that future
generations may be much better able to
cope with problems of ground-water
pollution than we are today.
Therefore, EPA has concluded that its
regulatory strategy should seek to
provide long-term protection, but it
should not profess to provide protection
for infinity. EPA considered whether it
should specify some fixed time period
that would provide an outer bound on
how long it can reasonably expect to
assure ground-water protection. At this
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32287
time, EPA simply has not been able to
develop an adequate rationale for such
a tune frame. (As will be discussed later,
EPA intends to initiate several studies to
explore whether there is a reasonable
basis for specifying such a time frame.)
Therefore, EPA has decided that the
basic strategy for today's regulations is
to require the owner or operator to take
reasonable steps (including the
installation of various control
technologies) that are likely to provide
long-term protection of ground water,
without specifying exactly how long
these steps are expected to be effective.
The liquids management strategy
embodied in today's regulations, for
example, emphasizes design and
operating measures that are designed to
reduce the present and future likelihood
of leachate migration to ground water.
In the monitoring and response program,
the owner or operator must be prepared,
while he is present at the facility, to take
needed corrective action as soon as
ground-water contamination appears.
Where variances from this
responsibility are allowed, the owner or
operator must be able to demonstrate
that relatively permanent conditions are
present in and around the facility that
are expected to prevent adverse effects
on human health or the environment.
Conditions that simply delay the time
when adverse effects would occur do
not provide a basis for the owner or
operator to be relieved of his
responsibilites under the monitoring and
response program.
In some areas, however, it has been
necessary to specify time periods in the
regulation hi order to make the
regulations workable. One such time
period is the compliance period (i.e., the
time period over which the owner or
operator must be ready to perform
corrective action once hazardous
constituents have appeared in ground
water.) The other time period is the
post-closure care period. This period
defines how long the owner or operator
must maintain design features aimed at
long-term ground-water protection and
how long he must monitor the ground
water as long as contamination is not
detected.
The compliance period is linked to the
active life of the waste management
area. It is a time period that is at least
equal to the number of years that the
regulated unit(s) received waste but it
may be longer where additional time is
needed to complete corrective action
that was ongoing at the time that the
normal compliance period ends. In
setting the compliance period, the basic
objective is to have the owner or
operator ready to conduct corrective
action during the time that the most
significant portion of the leachate plume
is emerging from the regulated unit.
There could be two potential reasons
for the appearance of contamination in
ground water: (1) the regulated unit liner
has failed and is allowing leachate to
pass through it; or (2) the unit did not
have a liner and liquids present in the
unit are simply seeping into the ground
unobstructed by any barriers. In either
case the liquids available for migration
to ground water should be sharply
curtailed by the placement of the final
cover on the unit at closure. In fact, a
well-designed and carefully maintained
cover should reduce the rate of
migration of leachate to ground water to
insignificant levels. Thus, the active life
of the unit, the period during which the
cover is not present, is the time period
during which the release of leachate to
the subsurface environment isJikely to
be greatest.
Projecting that same analysis into the
ground water,, it is logical to assume that
once contamination appears in ground
water the most substantial release to
ground water will occur during a period
that is equal to the active life (including
the closure period) of the unit. Based on
this technical analysis, EPA has
concluded that the compliance period
for the compliance monitoring program
must extend for a time period that is at
least equal to the active life of the unit.
EPA recognizes, however, that several
technical factors may cause the plume
caused by a "no liner" or "failed liner"
scenario to continue to appear after a
compliance period that is based on the
unit's active life. First, the placement of
a cover at closure does not immediately
shut off the exfiltration of liquid from
the unit. Particularly at a landfill there is
likely to be a deliquifying period during
which liquid in the waste passes down
through the waste and into the ground.
In addition, various contaminants may
move at different speeds through the
unsaturated zone below the facility.
Thus, the detection of hazardous
constituents in ground water may reflect
the appearance of the fastest-moving
constituents. The slower moving
constituents may begin to appear later
and continue to appear for a period that
is longer than the compliance period
(i.e., the period equal to the active life of
the unit) as measured from the first
appearance of the fastest-moving
constituent.
The regulations account for this
phenomenon, if it occurs,, with a
variance. If a corrective action program
is under way when the normal
compliance period ends, the compliance
period will be extended until the
ground-water protection standard is
achieved. This will ensure that the time
period for the compliance monitoring
and corrective action programs is linked
to the purpose of the program—the
removal of the hazardous component of
any plume from the unit.
EPA also recognizes that some
technical factors could cause the period
during which significant amounts of
leachate enter the subsoil to be much
less than the active life of the regulated
unit. The major situation where this
would occur is where a liner in the unit
provides an effective barrier for some
period of time, and the liner does not fail
until late in the active life of the unit. At
this time, EPA does not know how to
account for this possibility in defining
what the appropriate compliance period
should be because it is not possible to
know precisely when the liner actually
fails. Accordingly, the regulations
provide that the compliance period must
extend for a period at least as long as
the active life of the unit, based on the
assumption that an improperly installed
liner may begin to leak as soon as waste
disposal begins.
The second major time period used in
the regulations concerns post-closure
responsibilities. The owner or operator
must know how long after closure he
must continue to maintain the liquids
management measures, such as the
cover, and continue to monitor to
determine whether hazardous
constituents are leaking into ground
water. This is a difficult time frame to
define because it implies some
assessment of how long owners and
operators should be held responsible for
a unit at which there has been no
evidence of ground-water
contamination.
The existing hazardous waste
regulations have established a post-
closure care period that extends for 30
years after closure at a land disposal
facility but allows for variances to
increase and, in some cases, decrease
that time period. EPA promulgated
regulations establishing that post-
closure care period on May 19,1980 (45
PR 33066) and received comment on that
approach. This time period represents
what EPA thinks is a reasonable burden
to place on the owner or operator to
maintain a presence at the facility.
While some commenters have
recommended shorter or longer time
periods, others have indicated that the
existing post-closure care period •
represents a reasonable burden for the
facility owner or operator.
Given the current state of knowledge
about hazardous waste disposal and
given the record developed in
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rulernaking on these regulations, EPA
has concluded that this time period is a
reasonable way to define the owner or
operator's responsibility after closure to
continue liquids management measures
and to monitor ground water where no
contamination has appeared. The
Regional Administrator may modify this
time period under the regulations where
necessary to protect human health and
the environment. Such a variance is
necessarily open-ended because it can
potentially be based on.a variety of site-
specific factors.
EPA is not entirely satisfied with the
way today's regulations address the
issue of time in protepting ground water.
EPA intends to analyze further the
question of whether there is an optimal
time frame to be used in a ground-water
protection strategy for land disposal
facilities. Specifically EPA intends to
study each of the following approaches
to setting an optimal time frame. .
First, EPA will consider whether there
is a technical basis for setting a proper
time frame. EPA is interested in
determining whether the time period can
be linked to the likelihood of significant
attenuation of constituents in the
unsaturated zone. Thus, EPA would
explore the circumstances under'which,
if contamination did not appear in
ground water for a certain number of
years, it could be concluded that
sufficient attenuation had occurred to
reduce to insignificant levels the
potential hazard of any plume that could
reach ground water.
Second, EPA will consider whether
there is an optimal time period that •
balances the need for protection at
individual facilities against the need for
environmentally-acceptable capacity for
land disposal of hazardous waste. At
some point, the imposition of long-term
responsibilities on owners and operators
of land disposal facilities could become
so expensive that new facilities would
not be developed and that existing
facilities would close, thereby reducing
the available capacity for hazardous
waste that may have to be placed in
land disposal facilities. Such a situation
would not be desirable as a matter of
national environmental policy because it
tends to create pressure for the worst
forms of uncontrolled hazardous waste
disposal.
Third, EPA will consider whether
there is an optimal time frame for
ground-water protection that balances
the cost of additional protection against
the benefits derived from increasing the
time frame for protection.
8. Surface Water
EPA is also concerned with the impact
of hazardous waste land disposal on
surface waters. As part of its general
liquids management strategy for waste
management units, EPA has imposed
requirements that should minimize the
impact on surface waters. For example.
run-off controls at landfills, land
treatment units, and piles, and the
overtopping requirement at surface
impoundments, will avoid the migration
of hazardous constituents over the land
surface to surface water. In addition,
units located in 100-year floodplains
must generally be designed to prevent
washout, a measure that is primarily
concerned with surface water
protection.
The general strategy for the protection
of ground water in today's regulations
should also serve the purpose of surface
water protection. Most aquifers are
hydraulically connected to surface
water. To the extent that today's
standards assure protection of ground
water upgradient from a surface water
body, EPA is also providing protection
of that surface water. In fact, as will be
discussed later, EPA has built a concern
for surface water into the monitoring
and response program as well as the
design and operating requirements being
promulgated today.
In addition, it should be recognized
that the surface water effects from
hazardous waste land disposal are
controlled under other EPA programs
besides the RCRA hazardous waste
program. Specifically, the discharge of
pollutants into navigable waters from a
point source is subject to regulation
under the Clean Water Act (CWA). Such
a discharge must receive 3 permit under
the National Pollutant Discharge
Elimination System (NPDES), as
provided for in Section 402 of the CWA.
Where a hazardous waste land disposal
facility has a point source discharge, the
appropriate requirements of the CWA
must be met for that discharge. ,
C. Air
For several reasons, EPA has found it
very difficult to address the effects of
land disposal units on air quality in
these regulations. First, EPA has less
information and experience with air
pollution at these units than with other
types of environmental problems (e.g.,
ground-water contamination.] As a
result, less is known about the extent of
the problem and about the available
control technologies for remedying the
problem. This .makes it difficult to
assess the need for particular
requirements to deal with air pollution.
Second, based on the information that is
available to EPA, it appears that the
question of whether a unit has an air
pollution problem, particularly where
volatile emissions are at issue, is
heavily dependent on the nature of the
particular waste being placed in the .
unit. Several of the experts attending
EPA's technical symposium on land
disposal, for example, indicated that
some surface impoundments could have
significant air emissions but that the
extent of the problem was primarily -
dependent on the volume of volatile
hazardous constituents placed in the
impoundment.
Given the limited information on air
emissions from hazardous waste land
disposal units and the fact that the
problem appears to be highly waste-
specific, EPA has not attempted to
establish extensive control measures for •
such problems as volatile emissions in
these regulations. EPA considered
establishing a narrative standard for air
emissions that would be analogous to
that contained in § 267.10(c) of the
temporary standards for new. hazardous
waste land disposal facilities. EPA
decided, however, that it needed more
information before it would know how
to translate such a broad standard into
specific control requirements that could
become permit conditions.
EPA has required a few operating
measures aimed at avoiding adverse
effects from air emissions. Specifically,
EPA requires wind dispersion controls
to minimize emissions ofparticulate
matter at waste piles, land treatment
units, and landfills.
EPA has begun a detailed study of
potential air emission problems and will
focus first on defining the extent of the
problem and the circumstances under
which emissions threaten human health
and the environment. This work is being
done in conjunction with EPA's broader
degree of hazard studies and regulatory
impact analyses. As a result of that
work, EPA may propose banning certain
wastes in certain types of units or
placing restrictive design and operating
standards on units handling significant
quantities of volatile wastes in those
circumstances where it has clearly
identified air pollution problems.
VII. Detailed Analysis of the Rules—
Parts 260, 264, 265, and 122
This section of the preamble discusses
the specific provisions in today's
regulations. Before beginning the
discussion, however, it is important to
clarify the meaning of various terms
used to describe what areas are being
regulated at a disposal facility. When
using the term "facility," EPA is
referring to the broadest extent of EPA's
area jurisdiction under Section 3004 of
RCRA. In many cases, particularly for
off-site facilities, this means the entire
site that is under the control of the
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ovvner or operator engaged in hazardous
waste management. Within the facility
there will be an area where hazardous
waste treatment, storage, and disposal
activities occur. This is the waste
management area.
The waste management area is made
up of one or more waste management
units. The provisions in the Part 264 and
265 regulations (principally the technical
standards in Subparts K-N)-establish
requirements that are to be implemented
on a unit by unit basis. A waste
.management unit is a contiguous area of
land on or in which waste is placed. A
waste management unit is the largest
area in which there is a significant
likelihood of mixing of waste
constituents in the same area. Usually
this is due to the fact that each waste
management unit is subject to a uniform
set of management practices (e.g., one
liner and leachate collection and
removal system).
Today's regulations establish specific
requirements for surface impoundments,
waste piles, land treatment units, and
landfills. Generally, each of these four
terms is'synonymous with the concept of
a waste management unit. For example,
a surface impoundment is typically a
single depression in the ground in which
wastes are allowed to mix. Landfills
may, however, present an exception to
this general rule. Some landfills are
designed as a series of adjacent
trenches that are separately lined. In
this situation, the term "landfill" can
refer to the entire set of trenches. Yet,
each individual trench is a. separate
waste management unit under today's
regulations. (The principal practical
implication of this distinction arises in
determining what area of the facility is
subject to the monitoring and response
program in Subpart F. This will be
discussed hi more detail in Section
VII.D. of this preamble.)
EPA's hazardous waste management
regulations have also used the term
"process" to describe a part of the
facility. "Process" refers to general
classes of waste management activities
(e.g., surface impoundments, piles) and
thus embodies a set of units that may be
present at a facility. For example, a
facility may contain three separate
surface impoundments, two waste piles.
and a single landfill. Such a facility
contains six waste management units
and three waste management processes
(e.g., surface impoundment, waste pile,
and landfill.)
In some parts of today's regulations
and in this preamble, the term "facility
permit" is used in describing a permit
issued under Section 3005. While the
broad term "facility" is used, this is not
Intended to mean that a permit can only
be issued for, all units at a facility. EPA
may issue a permit for some set of units
at a facility. (Under these circumstances,
the interim status standards of Part 265
continue to apply to units that are not
covered by the individual permit and
have not been formally denied an
individual permit.)
Today's regulations also refer to
waste management "portions." This is
the smallest area typically referred to in
these regulations. This simply means
some area within the confines of a
waste management unit.
Finally, today's regulations have
clarified somewhat the terminology used
to describe areas used for land-
treatment. In the past, EPA has used the
term "land treatment facility" to
describe the plot of ground on or in
which land treatment occurs. This area
is esentially the waste management unit
as just described. Therefore, EPA
intends to use the term "land treatment
unit" when describing these areas. This
shift in terminology is designed to make
the language used hi the regulations
more precise. It does not reflect a
substantive change in the scope of the
land treatment requirements. Thus, the
term "land treatment unit" in today's
regulations is synonymous with the term
"land treatment facility" used in
previously-issued regulations.
A. Definitions (Part 260)
In today's regulations, EPA is adding
several definitions to 40 CFR Part 260
that are used in the land disposal
regulations. In addition. EPA is
replacing one definition and clarifying
the meaning of another.
1. Aquifer. The term "aquifer" is
defined in Part 260 (promulgated on May
19,1980) as a geologic formation, group
of formations or part of a formation
capable of yeilding a significant amount
of ground water to wells or springs.
Public comments have suggested that
"significant amount" is an imprecise'
term which may leave owners and
operators in doubt as to which
formations constitute aquifers.
Commenters correctly pointed out that
the concept of a "significant amount"
was actually site-specific, depending
upon the demand for ground water.
Furthermore, commenters stated, the
potential yield (amount) of ground water
from one well could be dramatically
lower than the yield from a cluster or
field of wells at the same location. In
water-scarce areas, it is not uncommon
to install several wells into the same
formation to collect sufficient ground
water to feed into a public water supply
system. The lower the yield to one well,
the greater the number of wells
necessary to serve the users of a given
water supply system.
In the preamble to the December 18,
1978 proposal, the Agency had
suggested 600 gallons per day as the
minimum yield which would constitute a
"usable quantity," based upon the needs
of a family of four persons. The Agency
used the design specification of 125
gallons per person per day in arriving at
this minimum yield. Commenters
pointed out, however, that this design
specification is only applicable to
municipal public water supply streams
and includes allowances for washing of
automobiles, lawn watering, central
sewerage, minimal fire protection, etc.
Commenters suggested that, if the
agency wished to base the minimum
yield specification on the needs of a
family of four in a rural area (a typical
situation where a single, private,
ground-water supply well would be
used) an individual demand of between
5 and 50 gallons per person per day, to
satisfy health and personal hygiene
needs, would be appropriate.
Commenters also stated that many
land disposal facilities are sited in'areas
where saturated upper clay layers are
available to serve as a natural barrier to
the migration of leachate into the ground
water in the actual uppermost aquifer.
Since any saturated soil material can
yield quantities of ground water to
wells, even at an extremely low rate,
one interpretation of the definition of
aquifer could require the saturated clay
landfill liner to be monitored hi
accordance with the ground-water
monitoring requirements.
. It was never the Agency's intent to
consider saturated clay landfill liners to
be subject to ground-water monitoring
as an aquifer.'However, no acceptable
criterion was suggested, nor has the
Agency been able to produce a
universally acceptable interpretation of
"significant amount" wrach is
appropriate in all of the various
circumstances that may be encountered.
The Agency wishes to define the term
"aquifer" more precisely in a manner
that is consistent with both the RCRA
program and the Safe Drinking Water
Act program, and that reflects the
ground-water policy that EPA is
currently developing to coordinate its
ground-water protection programs. EPA
is working on this issue, and will
announce its result when the work is
completed.
2. Certification. The terms
"certification", "certify", and "certified"
are used throughout the regulations,
including those promulgated today, to
refer to the rendering of a professional
opinion concerning compliance with a
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requirement of the regulations by a
qualified professional in the field.
Commenters have suggested that courts
sometimes interpret these terms to imply
that certification is equivalent to a
guarantee or warranty,-thus relieving
other parties (e.g., owners and
operators) of their responsibilities under
regulations as a result of such
certifications. This was not intended by
the Agency in the various RCRA .
certification requirements. By requiring
a certification, the Agency is seeking an
opinion from a professional qualified in
.the field but does hot intend to relieve
owners and operators from their
responsibilities under the regulations.
The definition does not address the
potential liabilities of the certifying
party. This is a matter to be resolved
between the certifying party and the
owner or operator in accordance with
applicable law. Since EPA still believes
the terms "certification" and "certify"
accurately denote the Agency's
intention, EPA is choosing to define the
terms to eliminate possible legal
"misinterpretation.
3. Constituent, Hazardous Waste
Constituent. Both the term "constituent"
and the term "hazardous waste
constituent'" are defined in 40 CFR
§ 260.10 to mean "a constituent which
caused the Administrator to list the
hazardous waste in Part 261, Subpart D,
of this Chapter, or a constituent lisfed in
Table 1 of § 261.24 of this Chapter".
However, the first of these terms,
"constituent", has been used throughout
the RCRA regulations in its common
sense (i.e., an element or component of a
whole) rather than in reference to
constituents listed in Table 1 of
Appendix VH of Part 261. To reflect the
actual use of this term in the regulations,
the term "constituent" has been dropped
from the definitions in § 260.10.
Therefore, as with other undefined
terms, it is to read in its common,
everyday sense.
The definition of "hazardous waste
constituent" remains unchanged. This
term refers to a constituent of a waste
which caused the Administrator to list
the waste as a hazardous waste or a
Table 1 constituent.
4. Existing portion. A new term,
"existing portion," has been added to
§ 260.10 to describe the portion of a
waste management unit that is exempt
from those requirements in Subparts K,
L, and N of Part 264 which would
involve impractical retrofitting for
existing operations. The Agency
believes that lateral expansions of
existing waste management units (i.e.,
the placement of wastes on additional
land surfaces) after permit issuance
should incorporate all of the design
standards in Subparts K, L, and N of
Part 264 because the construction of
features like 'a liner for such expansions
would not require impractical
retrofitting. Therefore, today's
regulations do not exempt all existing
waste management units from liner
requirements but do exempt the land
surface included in the original Part A
permit application on which wastes
have been placed prior to permit
issuance. This term is used in Subparts
K,L, and N of Part 264.
5. Treatment Zone. Today's
regulations also define "treatment
zone", a term used hi the Subpart M
requirements for land treatment units.
This term describes the area within a
land treatment unit in which all
degradation, transformation, or
immobilization of hazardous
constituents must occur. For a complete
explanation of this term, see the
. preamble discussion of Subpart M.,
6. Uppermost Aquifer. The term
"uppermost aquifer" is generally
understood to mean the first geologic
formation beneath the natural ground
surface which meets the definition of an
aquifer. The uppermost aquifer will be
the first aquifer affected by leakage from
a facility. In rare situations, however,
lower aquifers are hydraulically
interconnected with the uppermost
aquifer within the facility property
boundary. In these situations, hazardous
constituents could migrate, via the
uppermost aquifer, to lower aquifers.
Therefore, when monitoring ground
water quality for the purpose of
determining compliance with the
ground-water protection standard, the
entire system of aquifers, rather than
just the uppermost aquifer, may be of
concern. To avoid the repeated use of
the phrase "uppermost aquifer and
hydraulically interconnected lower
aquifers" throughout Subpart F of Part
264, the term "uppermost aquifer" has
been defined in § 260.10 to include the
entire system of aquifers which are
hydraulically interconnected with the
uppermost aquifer within the facility
property boundary.
B. Conforming Changes (Part 264,
Subparts B, E, G, H)
Because of the promulgation of
today's new Subparts and Sections, a
number of minor conforming changes
are being made hi several sections of
Part 264. These changes merely add
references to the new Subparts and
Sections to several existing reference
lists in Subparts B. E, G, and H.
Specifically, minor conforming changes
are being made in § 264.15 (general
inspection requirements), § 264.73
(operating record), § 264.77 (additional
reports), § 264.112 (closure plan)
§ 264.117 (post-closure care and use of
property), § 264.118 (post-closure plan),
§ 264.142 (cost estimate for facility
closure), and § 264.144 (cost estimate for
post-closure monitoring and
maintenance).
C. Location Standards (Part 264,
Subpart B)
1. Applicability (§ 264.10). Section
264.10(b) lists those facilities to which
the floodplain standard under
§ 264.18(b) applies. Storage surface
impoundments and storage piles subject
to regulation under Subparts K and L,
respectively, were made subject to the
floodplain requirements of § 264.18(b)
when EPA promulgated regulations
applicable to these facilities on January
12,1981. Part 264 standards applicable
to other types of surface impoundments
and waste piles are being promulgated
for the first time hi today's rules;
§ 264.10(b) has been amended to include
them as well.
Part 264 standards applicable to
hazardous waste land treatment units
and landfills are also being promulgated
for the first time today and they have
been made subject to § 264.18(b), by an .
amendment to § 264.10(b).
The Agency has concluded that all
types of surface impoundments and
waste piles, as well as land treatment
units and landfills, should be subject to
the floodplain standards. In all of these
types of waste management units,
hazardous wastes could be washed out
by floodwaters unless adequate controls
are imposed. Consequently, § 264.10(b)
is being modified by adding waste
management units subject to regulation
under Subparts M and N to the list of
facilities to which the floodplain
standard applies. Sections 264.11
through 264.18(a) remain unchanged by
today's rule, except for minor
conforming changes to § 264.15, as noted
above, It should be understood,
however, that § 264.18(a), seismic
considerations, applies only to new land
disposal facilities.
2.Floodplains(§264.18(b)).The
Agency has concluded that hazardous
waste surface impoundments, waste
piles, land treatment units, and landfills
preferably should not be located in a
100-year floodplain. Facilities so located
must be designed, constructed, operated,
and-maintained to prevent washout of
any hazardous waste by a 100-year
flood. However, in accordance with
§264.18(b)(l)(i), if the owner or operator
demonstrates to the Regional
Administrator that, in the event of a
flood, the waste would be removed to a
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safe area before flood waters reached
the facility, special design and operating
features to prevent washout are not
required. The Agency realizes that this
option may not be viable for many
existing surface impoundments, waste
piles, land treatment units, and landfills.
Accordingly, the Agency is promulgating
a second exemption, defining narrow
circumstances hi which existing
facilities, not designed and operated to
prevent washout, may be located hi a
100-year flood plain without the owner
or operator's making the demonstration
contained in 5 264.18(b)(l)(i). These
circumstances are where the owner or
operator demonstrates that a washout
would cause no adverse effects on
human health or the environment.
'Section 284.18(b)(ii) lists the factors that
must be considered La making this
demonstration. These factors are the
following: the volume and
characteristics of the waste in the
facility; the concentration of hazardous
constituents that could result hi affected
surface waters; current and potential •
uses of and water quality standards
established for affected surface waters;
and the impact of hazardous
constituents on the sediments of
affected surface water bodies or the
soils of the 100-year floodplain.
These factors address the principal •
adverse health and environmental
effects that potentially can result from '
flood washout of hazardous waste land
disposal facilities. They are intended to
cover the effects that might occur during
the flooding washout [e.g., the
contamination of river sediments and .
floodplain soils caused by
sedimentation of washed-out hazardous
constituents as and after the j
floodwaters recede). The Agency is
unable to provide more definitive
criteria because of the wide variations
hi facility locations, flooding character
of adjacent water bodies, types of
wastes stored or disposed of hi
facilities, and other site-specific
conditions. The Agency solicits public
comment on these factors.
The general floodplain requirements
are consistent with the other
requirements hi Subparts K through N,
which are designed to prevent the
escape of hazardous waste or hazardous
constituents into surface water and
hydraulically connected ground waters
in order to prevent potential adverse
effects on surface water quality. (See
also Section VII. E-I of this preamble
and.the preamble to §264.18[b), 46 FR
2013-2815, January 12,1981.)
The Agency recognizes, however, that
existing hazardous waste surface
impoundments, waste piles, land
treatment units, and landfills located hi
100-year floodplains were placed there
before § 264.18(b) applied to them.
Consequently, because the preferred
option of avoiding location hi a 100-year
floodplain is not practicably available
for those waste management units, they
may have to take advantage of one of
the two exemptions from this
requirement. • .
With the exception of small
impoundments and waste piles, it may
be impossible to remove hazardous
waste from waste management units
before flood waters can reach them.
Also, it may be difficult to construct new
walls or dikes or elevate existing walls
or dikes around these units to prevent
washout from a 100-year flood. x
Retrofitting may not be feasible or
practicable for reasons such as:
inadequate landspace on which to build
new or expanded dikes; inadequate
structural capacity of existing walls or
dikes to accommodate expansions; and
unwarranted disruption of the operation
of the existing unit (principally surface
impoundments) and, hi some cases,
associated manufacturing operations,
when building or expanding dikes.
The 100-year flood plain rule may
seem inconsistent with the requirement
that surface impoundments, landfills,
land treatment units and waste piles
have run-off control systems designed to
withstand the effects of a 25-year storm.
The two criteria are not inconsistent,
however. Although the Agency is
concerned about the effects of run-off,
these effects are not likely to be as
serious as those that would result from a
flood. A flood would carry hazardous
materials much farther from the facility
than would run-off that exceeded the
run-off control system, and a flood
probably would carry away a greater
quantity of hazardous materials. Thus,
the environmental consequences of a
flood are very great, and waste
management facilities generally should
not be located where a flood may occur.
D. Ground-water Protection (Part 264
SubpartF)
Subpart F contains the requirements
for the monitoring and response program
that will serve as a backup to the other
ground-water protection measures in
today's regulations. The requirements of
this subpart define a general set of
responsibilities that the owner or
operator must meet but allow
considerable flexibility in how the
monitoring and response programs may
be designed.
EPA intends to examine closely the
monitoring programs and the monitoring
data developed to meet these
requirements and to use this information
to refine the regulations over time. As in
today's regulations, EPA's objective will
be to develop a cost-effective monitoring
program that will provide reliable
information about the effects of land
disposal units on ground water in order
to ensure protection of human health
and the environment.
1. Applicability (§ 264.90). a.
Regulated units—The requirements of
this subpart apply to new and existing
surface impoundments, landfills, waste
piles, and land treatment units that
manage hazardous waste. In defining
the scope of this subpart, however, it is
necessary to define rather precisely the
particular waste managment
components that are subject to the
ground-water monitoring and response
program. This subpart uses the term •
"regulated unit" in defining the portion
of the facility that is subject to the
requirements of this subpart. A
regulated unit is any waste management
unit of the above types that receives
hazardous wasfe after the effective date
of today's regulations.
A waste management unit can be a
regulated unit even though it contains
predominantly non-hazardous waste or
hazardous waste which was disposed
prior to the effective date of these
regulations or prior to November 19,
1980, the effective date of the
regulations defining what is a hazardous
waste (40 CFR part 261) and establishing
the permitting requirements (40 CFR
122-125) for hazardous waste
management facilities.
Many existing waste management
units may contain waste that was
placed there before the effective date of
these regulations or before November
19,1980. Some commenters have raised
questions about EPA's legal authority to
regulate such waste and about the
reasonableness of regulating them under
a RCRA permit as a policy matter.
EPA believes that it has legal
authority under Subtitle C of RCRA to
regulate any activity, emission, or
release from a facility that is receiving
hazardous waste. Section 3004 of RCRA
provides that EPA has authority to issue
regulations covering owners or
operators of treatment, storage, and
disposal facilities as may be necessary
to protect human health and the
environment. This section does not limit
EPA's authority to those portions of the
facility that receive hazardous waste
after a specific date.
Section 3005 of RCRA, which provides
for issuance of permits to treatment,
storage, and disposal facilities, indicates
that after the effective date of any
Section 3005 regulations any treatment.
storage, and disposal of hazardous
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waste without a permit is prohibited.
EPA does not believe that the
prospective nature of this provision
operates to limit EPA's standard-setting
authority under Section 3004. The «
prospective nature of Section 3005
reflects the permitting scheme of RGRA.
Owners or operators seek permits for a
particular future activity (i.e., treatment,
storage, and disposal of hazardous
waste) at the facility. The owner or
operator does not generally seek a
permit for actions he has already taken
[i.e., previous treatment, storage and .
disposal activities.) EPA's authority to
deny permission to conduct future waste
management activities is one of the
principal sanctions under the permit
program.
As a condition for allowing future
waste management activities, however,
RCRA provides that the owner or
operator must meet the requirements of
Section 3004. Under Section 3004, EPA
must define the responsibilities of an
owner or operator that are necessary to
protect human health and the
environment. In order to accomplish that
objective, EPA may need to impose
duties that are designed to remedy the
present adverse effects of past activity.
Likewise, EPA may require the owner or
operator to continue certain activities
that are designed to protect human
health and the environment after the
owner or operator has ceased placing
waste into the ground. (Such future
responsibilities are the correlative duty
that must accompany the current right to
dispose of hazardous waste. EPA thinks
that those duties can be most effectively
implemented through permits.) Under
RCRA, an owner or operator who
wishes to initiate or continue storage,
treatment, or disposal activities at a
facility must take on all of these
responsibilities. EPA has concluded that
these responsibilities must include
reasonable measures to address current
ground-water pollution attributable to
waste placed before the date of permit
issuance under these regulations.
EPA has decided that there are sound
policy reasons for subjecting regulated
units to the ground-water monitoring
and response program of Subpart F.
First, once wastes are placed in the
same unit there is a strong possibility
that the constituents hi the waste will
react with each other to form new
compounds or to alter the physical or
chemical state of the waste constituents.
Some of the interactions may cause the
resulting leachate to become more toxic
or more mobile in the subsurface
environment. At the time that leachate
emerges from a unit it is extremely
difficult, particularly at units that handle
many types of waste, to determine what
characteristics of the leachate are
attributable to particular wastes. It is
therefore appropriate to focus regulatory
concern on the leachate as it is and not
to speculate on what incremental effect
particular wastes have had on the
leachate's quality and characteristics.
Another reason for subjecting all
waste in a regulated unit to the
monitoring and response program is that
the management problem posed by a
unit is not substantially affected by the
timing of when hazardous constituents
were placed in the unit. If the unit's liner
fails, the leachate can be expected to
contain constituents from wastes placed
before and after the effective date of
these regulations. Likewise, corrective
action measures (e.g., counterpumping)
do not selectively remove constituents
from wastes placed at different times
' but rather control the entire plume.
Thus, once wastes are in the same unit,
the nature of corrective action would
not be substantially altered by attempts
to distinguish between wastes placed in
the same unit at different times.
In defining what is a "regulated" unit,
however, EPA has sough't to address the
concern in the regulated community that
a permit under Subtitle C may not be the
appropriate mechanism for requiring
cleanup of contamination from all
previous waste management activity at
a facility. EPA has defined a regulated
unit as one which receives hazardous
waste after the effective date of today's
regulations.
EPA believes this has several
advantages. First, it gives reasonable
notice to the regulated community about
what the regulations will require and
will allow them to adjust their
management practices accordingly. It
avoids the prospect that the owner or
operator would face responsibilities
under a permit for units that were
operated and fully closed before any of
the Section 3004 standards were
established. (Any adverse effects on
ground water from such units may be
addressed under other EPA authorities,
including Section 7003 of RCRA.) This
approach is certainly consistent With
Section 3010 of RCRA which provides
that regulations under Subtitle C are to
become effective six months after they
are promulgated. The legislative history
of this provision indicates that the
purpose of the provision was to give the
regulated community a reasonable tune
period in which to prepare for new
requirements.
Second, this approach ensures that
there will be an early incentive to
institute the proper design and operating
measures to reduce the potential for
significant ground-water contamination
from regulated units. With the issuance
of today's regulations, the regulated
community will have the benefit of
reviewing EPA/s conclusions on what a
sound liquids management strategy for a
land disposal unit should be. EPA thinks
that today's regulations should create
incentives to institute reasonable design
and operating measures before a permit
application is called hi for an existing
unit and final action is taken on the
permit. (EPA acknowledges that it will
take several years to complete this
process for all existing land disposal
units.) By indicating that all units
receiving waste after the effective date
of today's regulations will ultimately be
subject to the monitoring and response
program of Subpart F, EPA has created
the incentive for owners and operators
to take reasonable steps today to reduce
the likelihood that they will face long-
term responsibilities for corrective
action.
There will be situations where it will
be difficult to tell whether a plume of
contamination comes from a regulated
unit. This is most likely to occur when
several regulated units are adjacent to
other storage or disposal units. As will
be described later, the compliance point
where there are several regulated units
is an imaginary boundary
circumscribing all of these units. In such
a situation, it may be difficult to
determine whether regulated units are
causing a leachate plume that appears
at the compliance point. -
The regulations provide that any
waste constituent that migrates beyond
the compliance point is presumed to
come from a regulated unit. The owner
or operator may, however, overcome
this presumption if he demonstrates,
with monitoring data or other
information, that the constituents are
coming from another source.
b. Exclusions—There are limited
exclusions from the Subpart F
requirements. First, any of the general
exclusions hi § 264.1 remove certain
facilities from Subpart F as well.
Second, double-lined surface
impoundments, piles, and landfills
(described in § 264.222, § 264.252, and
§ 264.302, respectively) are excluded, as
are piles complying with § 264.250(c)
and § 264.253. The specific elements of
these types of units are described in
detail in later sections. The reason that
most of these provisions provide a basis
for an exclusion from Subpart F is that
they involve some ongoing method for
detecting whether the unit's liner has
failed. As long as it is clear that the liner
has not failed, EPA and the public can
be confident that hazardous constituents
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from such regulated units will not enter
ground water. The exclusion for a pile
designed to satisfy § 264.250(c) is based
on the premise that the specified
conditions reduce the possibility of
leachate generation to such a degree
that ground-water contamination is not
likely to occur.
Third, the owner or operator of a land
treatment unit may suspend compliance
with Subpart F requirements if he can
demonstrate to the Regional
Administrator under § 264.280(d) that .
the hazardous constituents in the waste
have been effectively treated. The
requirements for such a demonstration
are described in the discussion of land
treatment in Section VH. H.8. of this
preamble. It should be recognized,
however, that this exclusion relieves the
owner or operator from Subpart F
responsibilities only, during the post-
closure care period.
Fourth, the owner or operator of a
regulated unit may be excluded from
Subpart F if the Regional Administrator
finds that there is no potential for
hazardous constituents to migrate from .
the regulated unit to the uppermost
aquifer during the active life of the unit
(including the closure period) and the
post-closure care period specified under
§ 264.117. This exclusion is designed for
units located in hydrogeologic settings
that prevent leachate migration to
ground water for very long periods. In
such a setting, hazardous waste
leachate would simply not be able to
reach ground water during the active life
of the unit and the post-closure care
period. Where there Is a high degree of
confidence that such a hydrogeologic
setting is present, EPA decided that it
would be of little value to require the
permittee to implement a detection
monitoring program. (Such a program
would simply not detect contamination
during the active life of the regulated
unit plus the post-closure care period.}
Moreover, EPA believes it may be
productive to exclude such locations
from ground-water monitoring. Such
locations are relatively desirable for
waste disposal because soils which
provide long delays in the arrival of
leachate in ground water may also have
characteristics that attenuate hazardous
constituents. Excluding ground-water
monitoring requirements at such-
locations could encourage the use of
such environmentally desirable
locations.
This exclusion is based on the
premise that it may be unnecessary to
require detection monitoring in some
favorable hydrogeologic settings.
Therefore, it is appropriate that the time
frame should be the same as that of the
detection monitoring program—the
active life of the regulated unit plus the
post-closure care period.
This exclusion involves substituting
predictions of likely migration to ground
water for actual ground-water
monitoring. EPA believes that it is
extremely difficult to make accurate
predictions about the migration of
liquids through the unsaturated zone.
Several of the experts attending EPA's
technical symposium on land disposal
held in May of 1981 indicated that they
did not have a high degree of confidence
hi predictions of leachate fate and
transport in the subsurface environment.
The prinicpal reason for this low
confidence in such predictions is that
appropriate values for the several
variables that need to be considered are
often extremely difficult to determine.
Since this exclusion involves
substituting inherently uncertain
predictions for ground-water monitoring,
EPA believes that a safety factor should
be built into the exclusion. Thus, today's
regulations provide that owners or
operators must base any predictions
made to qualify for this exclusion on
assumptions that tend to maximize the
estimated rate of leachate migration.
While these assumptions are not
specified in the regulations, the
following is a list of the types of
assumptions that EPA will use in
determining whether an exclusion is
warranted. Geologists and geotechnical
' engineers should be familiar with most
of these assumptions.
First, the thickness or depth of soil
underlying the regulated unit, should be
determined. This factor can be
determined directly by soil core borings.
If soil depth estimates are used in the
prediction, however, the minimum value
in the range of depth estimates should
be selected. Second, the calculation of
travel time should be based only on
natural soil properties, ignoring the
effects of synthetic or recompacted
natural soil liners placed beneath the
waste. Third, the prediction should be
based on the travel time of the most
dense and/or least viscous fluid in the
Regulated unit (i.e., the fluid with the
lowest kinematic viscosity). For
example, some solvents are less viscous
than water and thus are likely to move
faster than water. Fourth, since the
depth of liquids or leachate in a unit can
vary, the prediction should assume that
the unit is full of liquids (i.e., the
maximum possible hydraulic head).
Fifth, the owner or operator should
assume that the soil is saturated
because fluids will pass through such
soils more quickly than unsaturated
soils. Sixth, the owner or operator
should account for the effective porosity
of the soil when making a prediction.
Estimations of effective porosity are
difficult to make. For this reason, EPA
believes that 10 percent effective
porosity, a low value, should be used to.
avoid the uncertainty involved in
estimating effective porosity and to
ensure relatively short travel time
predictions for the soil beneath the
regulated unit. Seventh, soil attenuation
mechanisms should be ignored in travel
time predictions. Eighth, since a
regulated unit may have been in
operation well before the prediction of
travel time is made, an owner or
operator should assume that migration
of fluids through the soil began when the
unit commenced operation.
As another measure to increase
confidence in a prediction made to
qualify for this exclusion, EPA has
required that the owner or operator's
demonstration must be certified by a
qualified geologist or geotechnical
engineer.
Lastly, EPA considered establishing
an exemption from Subpart F
requirements for a regulated unit located
over an uppermost aquifer which is so
dirty that it would never be used for any
purpose and which, regardless of any
future level of contamination, is not
capable of significantly contaminating
another usable aquifer or surface water
that is hydraulically connected. EPA
believes that this would be an extremely
rare situation, if indeed such a location
exists, and has, therefore, chosen not to
establish such an exemption at this time.
However, EPA requests comments on
the existence of such locations and the
appropriateness of such an exemption
from Subpart F.
2. Establishment of Programs
(§264.91). Under Subpart F the Regional
Administrator will be establishing in a
facility permit the elements of a
monitoring and response program. The
purpose of § 264.91 is to make clear that
the owner or operator of each regulated
unit subject to this subpart must
institute some kind of monitoring and
response program and that the content
of the program will be specified in the
facility permit. The other sections of
Subpart F provide further elaboration of
the content of the various programs.
The owner or operator must institute
at least one of the three types of
programs set forth in Subpart F—a
detection monitoring program, a
compliance monitoring program, or a
corrective action program. The permit
may, however, contain all three and
specify the conditions under which each
will be used. EPA expects that in many
situations it may be appropriate to
specify more than one program in a
facility permit. For example, it is logical
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to have a compliance monitoring
program and a corrective action
program in the same permit. Then the
permittee will be able to shift back and
forth between the compliance
monitoring mode and the corrective
action mode of operation as the levels of
hazardous constituents in ground water
fluctuate above and b'elow the
concentration limits for the constituents.
There may be some incentive to
combine programs in the same permit
because the establishment of such a
program would be a major modification
if it occurred after the issuance of the
initial permit. A proceeding to modify a
permit would be conducted in
compliance with EPA permitting
procedures and could be time-
consuming. Once a program is
established in a facility permit, the
owner or operator must continue to
implement the program unless the
permit specifies when certain
obligations may terminate or unless the
owner or operator obtains a permit
modification. It is, therefore, wise for the
owner or operator to anticipate when he
believes a permit modification will be
needed and to assemble the information
necessary for such a modification.
Ultimately, the Regional
Administrator has the authority to
include more than one program in a
facility permit even though the owner or
operator did not specifically ask for
multiple programs. While the owner or
operator can only be operating under
one program at a time, there will be
situations where it is necessary for an
owner or operator to take prompt action
under his permit when monitoring data
indicate that another type of program is
appropriate.
The Regional Administrator must
have the flexibility to establish in the
permit a program that is conditioned on
the occurrence of some event (e.g.,
appearance of contamination) in order
to adequately protect human health and
the environment. For example, a
regulated Unit may be located above
fast-moving ground water and near an
important drinking-water source. In such
a situation, the time needed to modify
the facility permit to replace a detection
monitoring program with a corrective
action program could allow substantial
damage to occur. In such a situation it
might be appropriate to have an
approved corrective action program in
the permit that would be triggered by
the detection of contamination in the
ground water. Thus, today's regulations
specifically provide that the Regional
Administrator may incorporate one or
more monitoring and response programs
into the facility permit as may be
necessary to protect human health or
the environment.
Besides being cdmbined with each
other, monitoring and response
programs may also be linked to other
provisions of a facility permit. There are
certain design and operating measures ..
that allow owners or operators to forego
Subpart F monitoring the response
programs. These exclusions, however,
terminate if such design and operating
measures fail to meet their objectives.
Therefore, permittees may want to have
a monitoring and response program [e.g.,
a detection monitoring program)
included in the permit even though they
employ one of the designs that qualify
them for an exclusion. The permit would
specify that the Subpart F program need
not begin until the design failed. For
example, the owner or operator of a
double-lined surface impoundment may
choose to initiate a monitoring and
response program, in lieu of repairing
the facility liner, if the liner fails during
the active life of the impoundment.
Initiation of a Subpart F program is the
only appropriate action to take if the
owner or operator intends to use a
double-liner design to provide protection
during the post-closure care period.
While an owner or operator may have
more than one monitoring and response
program in the facility permit, there are
certain minimum requirements specified
in § 264.91. If hazardous constituents
from a regulated unit have not entered
the ground water, the owner or operator
must at least have a detection
monitoring program. This is to ensure
that any leakage from the facility is
detected. Once hazardous constituents
appear in ground water, the owner or
operator must, at a minimum, have a
compliance monitoring program that can
determine whether the ground-water
performance standard is exceeded.
If that standard is exceeded, the
owner or operator must have a
corrective action program. Compliance
monitoring programs and/or corrective
action programs will continue through
the compliance period under § 264.96.
Section 264.91 also indicates that a
corrective action program is needed
when hazardous constituents under
§ 264.93 exceed concentration limits
under § 264.94 in the ground water
between the compliance point and the
downgradient facility property
boundary. (The rationale for this
provision is discussed in Section
VII.D.13.d. of this preamble.) It is
possible that the compliance period may
be shorter than the normal post-closure
care period for the facility depending on
when contamination first appeared, the
length of the regulated unit's active life
and the success of the corrective action
program.
When the compliance period ends
before the close of the post-closure care
period, today's regulation's provide that
the owner or operator must reinstate a
detection monitoring program for the
remainder of the post-closure care
period. In § 264.90(c)(2), the regulations
make clear that detection monitoring
programs, once instituted, continue
through the post-closure care period.
(the permitting regulations under 40 CFR
§ 122.15 provide that the Regional
Administrator may initiate a permit
modification to establish a detection
monitoring program if the compliance
period ends before the end of the post-
closure care period specified in the
permit.)
EPA believes this is reasonable for
two reasons. First, since the owner or
operator will be present at the facility
through the post-closure period under
the permit, it is appropriate for him to
take all reasonable steps to assure
ground-water protection. Since detection
monitoring involves a relatively light
monitoring burden, it should be
relatively easy for the owner or operator
to perform. Second, the completion of a
successful corrective action program
(i.e., a showing that the ground-water
protection standard in the permit has
not been exceeded for a period of three
years) or the completion of the
compliance monitoring program does
not provide absolute assurance that a
plume of significant contamination will
never appear below a regulated unit.
Since hazardous constituents move* at
different speeds through soil and since
they may be released from the regulated
unit at different times, it is possible that
a plume of contamination could appear
several years after an initial plume from
the unit had been detected and cleaned
up. Therefore, a detection monitoring
program is needed to determine whether
such a delayed plume appears.
The nature of the program established
in the initial permit will depend on the
information available at the time of
permitting. The key question is whether
a regulated unit has begun to leak. For
new units this is not an issue, but it may
be somewhat problematic for existing
units. Since the owners or operators of
most existing units will be conducting
monitoring in accord with the Part 265
interim status requirements, there
should be a reliable base of information
that can be used to determine whether
hazardous constituents have entered the
ground water.
The issue of whether a regulated unit
qulifies for one of the exclusions in
§ 264.90 will also be addressed in the
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initial permitting process. An applicant
who believes he qualifies for such an.
exclusion will submit information to
demonstrate that fact in his permit
application. He may also wish to submit
the information necessary to establish a
Subpart F monitoring and response
program as well in case EPA determines
that he does not qualify for the
exclusion.
3. Ground-water Protection Standard
(§264.92). The ground-water protection
standard in § 264.92 indicates when
corrective action is necessary to control
plumes of contamination that have
emerged from a regulated unit. The
ground-water protection standard
essentially tells the owner or operator
when corrective action must begin and
when it may be terminated. In this way,
the ground-water protection standard
provides protection for human health
and the environment.
There are four principal elements of
the ground-water protection standard:
(1) The hazardous constituents to be
monitored and removed if necessary; (2)
the concentration limits for each
hazardous constituent that trigger
corrective action; (3) the point of
compliance for measuring concentration
limits; and [4) the compliance period.
Each of these elements of the standard
is described hi a separate section of
Subpart F.
The ground-water protection standard
will be established when hazardous
constituents from a regulated unit
appear in ground water. As will be
discussed later, a waste constituent
must be in the ground water before it
can be part of the ground-water
protection standard. There may be
situations where an owner or operator
will want to anticipate events and
establish'elements of the ground-water
protection standard before hazardous
constituents actually appear in ground
water. For example, if he expects that a
particular constituent that is prevalent
in his waste will eventually migrate to
ground water and be selected as a
hazardous constituent, he may want to
establish an alternative concentration
limit for that constituent under § 264.94.
While today's regulations do not
preclude the establishment of elements
of the ground-water protection standard
before leachate from a regulated unit
appears in ground water, EPA does not
Intend to give first priority to such
requests. EPA must use its available
resources to give prompt consideration
lo the establishment of ground-water
protection standards at facilities that
arc contributing leachate to ground
water.
Where it establishes concentration
limits before contaminants arrive in
ground water, EPA is essentially
establishing a partial compliance
monitoring program for a regulated unit
that is conditional on appearance of
contaminants in the ground water. Once
contamination actually appears in
ground water and a permit modification
proceeding is triggered, the Regional
Administrator may reassess the
justification for the alternate
concentration limit in light of the
information available at the time that
the ground-water protection standard is
actually established.
Finally, it should be recognized that
the ground-water protection standard is
not a general performance standard that
applies directly to owners or operators.
Under a permit an owner or operator is
responsible for conducting the
monitoring and corrective action
measures that are designed to achieve
the ground-water protection standard. If
monitoring indicates that the ground-
water protection standard is exceeded,
the owner'or operator is responsible for
taking certain actions specified in the
permit. If he fails to take these actions,
he is subject to enforcement action; if
the actions specified are inadequate to
bring the facility back into compliance
with the ground-water protection
standard, the permit must be modified.
Section 122.15(a)(7) has been amended
to provide that a permit may be
modified when the corrective action
program has not brought the regulated
unit back into compliance with the
ground-water protection standard within
a reasonable period of time.
4. Hazardous Constituents (§ 264.93).
In keeping with the regulatory
philosophy described earlier in this
preamble, the objective of the Subpart F
monitoring and response program is to
remove the hazardous portion of any
leachate plume that has reached ground
water from a regulated unit. Thus, in
establishing the ground-water protection
standard for the facility, the Regional
Administrator must define the
hazardous portion of the plume.
This is accomplished by identifying
. hazardous constituents. Under today's
regulations, the Regional Administrator
makes three findings when identifying a
constituent as a hazardous constituent
under § 264.93. First, the constituent
must be listed in Appendix VIII of 40
CFR Part 261. Second, the constituent
must have been detected in the ground
water below a regulated unit. Third, the
constituent must be reasonably
expected to be hi or derived from the
waste contained in the regulated unit.
a. Alternatives Examined—EPA
considered several options for
identifying hazardous constituents. One
option was to focus on the list of
Appendix VII constituents identified in
Part 261. When EPA lists a hazardous
waste under Part 261, it often lists the
particular waste constituents that
caused EPA to identify it as a hazardous
waste. These constituents are identified
in Appendix VII.
EPA concluded that Appendix VII
was not an appropriate list to use in
identifying hazardous constituents. In
identifying Appendix VII constituents, .
EPA did not attempt to conduct an
exhaustive analysis of all constituents in
the waste that could have caused the
waste to be hazardous. For purposes of
identifying a waste as a hazardous, it
was sufficient to identify a few
constituents that could pose a
substantial present or potential hazard-
to human health or the environment if
the waste was improperly managed.
Therefore, limiting hazardous
constituents to those in Appendix VII
would preclude EPA from addressing
other hazardous constituents known to
be in the wastes.
In addition, Appendix VII only applies
to listed waste. It does not address
hazardous constituents that may be
present in wastes deemed hazardous
because they exhibit one of the
characteristics in Part 261. Moreover,
Appendix VII is not designed to address
the hazardous constituents that may be
formed when various wastes are mixed
in a regulated unit, or react with
constituents in the soil.
A second option considered was a
narrative standard that would establish
general criteria for what constituted a
hazardous constituent. The Regional
Administrator would use these criteria
to identify individual hazardous
constituents and would specify them in
the permit. EPA rejected this option for
two reasons. First, it did not serve- the
general goal of providing certainty to the
regulated community or the public.
Permit applicants could not predict the
potential scope of their responsibilities,
and the public would be uncertain
whether most of the potentially
dangerous constituents would be
covered. Second, narrative criteria could
prove difficult to implement as a
practical matter in the permitting
, process. Under Subpart F, hazardous
constituents are to be identified when
the Regional Administrator establishes a
compliance monitoring or corrective
action program for the facility. Before
that decision can be made, however, the
applicant must know what universe of
potential hazardous constituents to
monitor in order to provide the data
base from which the Regional
Administrator would select hazardous
constituents. A narrative standard is not
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32296 Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations
very helpful in this situation because it
would force the applicant to guess at
what might be present or to monitor for
absolutely everything. EPA believes that
it is a waste of resources to monitor for
everything because there will be
constituents [e.g., chlorides) that do not
present any real danger. At the same
time, EPA does not believe it is sound
regulatory policy to leave to the
applicant the decision of what waste
constituents might be hazardous
constituents. Therefore, EPA rejected
the option of establishing a purely
narrative definition of hazardous
constituent, concluding that some
specific list of constituents was
necessary.
EPA concluded that hazardous
constituents should be based on the list
of constituents in Appendix VIH of Part
261. Appendix VIII is a list of 387
hazardous constituents and classes of
constituents that have been shown to
have toxic, carcinogenic, mutagenic or
teratogenic effects on humans or other
life forms. It includes many of the
constituents identified under Section
307{a) of the Clean Water Act, Section
311 of the Clean Water Act, Section 112
of the Clean Ah- Act, and Section 1412 of
the Safe Drinking Water Act. Further, it
covers genetically active constituents
that EPA's Cancer Assessment Group
has evaluated and determined to
sufficiently threaten human health and
the environment to warrant regulation
under .EPA's programs. Finally, it
includes the most acutely toxic
substances listed in the NIOSH Registry
or regulated by the Department of
Transportation as a transportation
hazard.
EPA has used this list of constituents
in the hazardous waste listing process.
EPA has also used Appendix VIII in its
regulations for incinerators. Foreach
constituent listed in Appendix VIII, EPA
has prepared a Health and
Environmental Effects Background
Document. Each document describes
and evaluates the constituent's adverse
effects on humans and other life forms
and substantiates the fact that the
constituents may pose a substantial
hazard to human health or the
environment,
EPA believes that Appendix VIII has
several advantages as a basis for
defining hazardous constituents. First,
Appendix VIII is a relatively
comprehensive list of constituents -that
may cause significant harm to human
health and the environment, as
indicated in the description of its origin,
and should assure, the public that the
monitoring and response program
provides adequate protection. Second,
Appendix VIII provides certainty to the
regulated community. It clearly defines
their environmental responsibilities and
thus should assist in the management of
land disposal units.
b. Public Comments on Use of
Appendix VIII—Several commenters
have raised objections to the use of
Appendix VIII in these regulations.
Some have argued that Appendix VIII
has not been subject to rulemaking or
scientific peer review. This is not
correct Appendix Vni has been subject
to public comment on several occasions.
Appendix VHI accompanied the interim
fjnal hazardous waste rules of May 19,
1980 (45 FR 33132). Reflecting public
comments received on those rules* EPA
modified Appendix VIII on November
12,1980 (45 FR 27477), November 25,
1980 (45 FR 78544), May 20,1981 (46 FR
27477), and June 3,1981 (46 FR 29708). In
addition, commenters on the outline of
today's regulations, that was discussed
in the public meeting of December 21,
1981, had an opportunity to comment on
the use of Appendix VIII. These
opportunities for public review have
also provided the scientific community.
an opportunity to comment on the list.
Some commenters have claimed that
there is a lack of reliable analytical
methods for constituents on Appendix
Vm. Of the 387 constituents listed in
Appendix VIE, the Agency has
described analytical methods for all but
nine constituents which are unstable in
water and thus would not be expected
to be found in ground water samples.
Some commenters have argued that
Appendix Vfll places an unreasonable
monitoring burden on the regulated
community. The monitoring burden
associated With the use of Appendix
Vm depends in the first instance on the
nature of the wastes placed in a
regulated unit. EPA does not believe
that it is unreasonable to place a more
extensive monitoring burden on owners
and operators who handle wastes that
contain many potentially dangerous
constituents. As will be discussed later
in this preamble, the owner or operator
will be allowed to demonstrate that
some Appendix VUI constituents cannot
be in a regulated unit because of the
nature of the waste. Ultimately, the
reasonableness of the monitoring
burden depends on the health and
environmental rationale underlying the
inclusion of a constituent on Appendix
VIII. EPA believes that the constituents
on Appendix VIII are those which may
pose a substantial hazard to human,
health or the environment. If an owner
or operator disagrees with that
conclusion and has data to challenge
that conclusion, he may petition the
Agency under § 260.20 to remove
constituents from the list.
As part of its ongoing refinement of
the regulations, EPA will consider
adding constituents to Appendix VIII. If
members of the public believe that
additional constituents should be on
Appendix VIII, they can also petition the
Agency to expand the list.
c. Selecting Hazardous Constituents
from Appendix VIII—Besides being on
Appendix VUI, a constituent must meet
two other criteria before it may be
identified as a hazardous constituent.
First, it must be in the ground water. The
ground-water protection standard is
only concerned with waste constituents
that reach ground water. Second, a
waste constituent must reasonably be
expected to be in or derived from waste
contained in a regulated unit. A
constituent derived from waste may be
a by-product of reaction of waste or
waste leachate with other waste or
materials in a regulated unit or with soil
underlying the unit. As a general matter,
EPA will consider the presence of the
constituent in the ground water at the
compliance point as a sufficient initial
indication that the constituent is derived
from waste in a regulated unit.
EPA recognizes, however, that it is
possible that a constituent appearing at
the compliance point may not originate
from a regulated unit. Today's
regulations, therefore, allow the permit
applicant two grounds for arguing that a
constituent did not derive from the
waste in a regulated'unit. Only one of
those arguments, however, may be
considered in the establishment of
hazardous constituents. The owner or
operator may be handling a waste with
relatively uniform chemical
characteristics, and he may be able to
showthat it is impossible for certain
constituents to ever appear in the
leachate emerging from his regulated
unit. In that situation, the Regional
Administrator may conclude that some
Appendix VIII constituents found in
ground water should not be identified as
hazardous constituents for that
regulated unit.
The second line of argument that the
applicant may want to pursue is that,
while a particular constituent could
appear in the leachate from his
regulated unit, the applicant believes
that the constituent found in ground
water is coming from a source other
than the regulated unit. Before accepting
such a showing, however, EPA believes
it is important to have sufficient
monitoring data to allow for statistical
comparisons of background values for a
constituent to the level of that
constituent at the compliance point.
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Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32297
Therefore, today's regulations provide
the owner or operator an opportunity to
make such a showing in the context of
his detection or compliance monitoring
programs. EPA does not believe,
however, that such an analysis should
bo the basis for deleting Appendix VHI
constituents from the list of hazardous
constituents in the' ground-water
protection standard.
EPA has provided a limited variance
in § 264.93 that would allow an
applicant to ask the Regional.
Administrator to eliminate some
constituents found in ground water from
the list of hazardous constituents
specified in the facility permit. The
burden that must be met here, however,
is a heavy one. Basically the owner or
operator must be able to demonstrate
that the constituent is not capable of
posing a substantial threat-to human
health or the environment at any time
under any circumstances that might
reasonably occur, barring war or acts of
God.
The variance specifically does not,
however, allow the owner or operator to
argue that adverse effects on human
health or the environment will simply be
delayed for some period of time. Thus,
the owner or operator could not receive
a variance under § 284.93(b) by arguing
thai a plume of contamination would not
reach potential users (e.gr, not migrate
beyond the facility property boundary)
for some period of time.
The variance provided in § 264.93(b)
is designed to address relatively limited
situations. For example, the applicant
may be able to demonstrate that,
regardless of the concentration that the
hazardous constituent might reach in
ground water underlying a regulated ,
unit, because of its half-life and the slow
rate of ground-water flow, it can never
pose a hazard to human health or the
environment
Today's regulations specify a set of
factors that the Regional Administrator
will consider when considering a
variance under § 264.93(b). The factors
used hi the Regional Administrator's
analysis are similar to those identified
in § 267.10, the general performance
standard applied to new hazardous
waste land disposal facilities in the Part
267 temporary standards. The factors'
have been modified slightly to explicitly
indicate that the Regional Administrator
will examine the ground-water and
surface-water uses in the area around
the facility. (The § 267.10 standard also
addressed air protection and subsurface
migration, which are not part of the
analysis in this variance.) Basically, the
factors are designed to assure that the
following topics are examined: (1) The
potential for leachate migration from a
regulated unit: (2) the quality of the
leachate as it migrates; (3) the current
and future uses of ground water and
surface water in the area; and (4) the
health and environmental effects
associated with exposure to different
levels of hazardous constituents.
Under the Underground Injection
Control (UIC) program of the Safe
Drinking Water Act, the States will be
identifying underground sources of
drinking water (USDW) and exempted
aquifers. (See 40 CFR § 122.35) The UIC
program is aimed at protecting USDW's.
Exempted aquifers are aquifers that
have many of the same characteristics
as underground sources of drinking
water but that are unlikely to be used
for public drinking water supply due to a
variety of technical and economic
factors. Under the UIC program, a State
must seek approval from EPA for any
decision to exempt an aquifer. In making
decisions about the use of an aquifer
under the variance in this section, EPA
believes it is important to build on the
decisions already made by the States
and EPA under the UIC program. This
will insure consistency in EPA's overall
approach to ground-water protection.
Today's regulations provide,
therefore, that the Regional
Administrator will consider any
decisions made under § 122.35, the
provision that allows for identification
of USDW's and exempted aquifers, in
any decisions about ground-water use
for purposes of this variance. The
Regional Administrator will rely on that
decision, however, only to the extent
that it is consistent with the ground-
water protection strategy in today's
regulations. For example, if an aquifer is
exempted for a fixed period of time (e.g.,
in some mining situations), then the
Regional Administrator may consider
what the likely use of that ground water
will be after the fixed time period in
deciding whether a variance under this
section is appropriate.
5. Concentration Limits (§264.94). As
indicated earlier, the ground-water
protection standard indicates when
-corrective action is needed at the
facility. In order to serve that purpose,
the ground-water protection standard
must establish an action level for each
constituent that will trigger initiation of
a corrective action program. In § 264.94,
the regulations set forth the criteria that
the Regional Administrator will use in
establishing such concentration limits
for each hazardous constituent.
a. Alternatives Examined—EPA
considered several options for defining
concentration limits. One approach is to
set limits based on the detectability of
the constituent in ground water. A
second approach is to establish
numerical limits for each constituent
that are based on a health or
environmental rationale. A third option
is to establish narrative criteria based
on protection of human health and the
environment in the regulations and to
allow the Regional Administrator to set
specific contamination limits in the
permit after considering a variety of
site-specific factors. The fourth option is
to ensure that a hazardous constituent
does not exceed'the background
concentration of that constituent in the
ground water.
EPA decided not to use the first
option, which would trigger corrective
action whenever there is a detectable
level of the constituent at the
compliance point. Detectable levels of
hazardous constituents may appear at
the compliance point through no fault of
the owner or operator. Natural
background levels of chemical
constituents or other sources of
contaimination could cause such
detectable values. EPA believes it is
unfair to the owner or operator to cause
him to clean up contamination that
cannot be reasonably linked to leachate •
from a regulated unit.
Today's regulations embody a mix of
the other three options. Each has
advantages but no single approach is
appropriate in all situations. The second
option, which involves the
establishment in the regulations of
numerical limits for each constituent, is
based on health and environmental
factors. This is a desirable option
because it assures that the action level
is directly related to the protection of
human health or the environment.
Unfortunately, such an approach is not
fully adequate at this time because EPA
has not established such contamination
limits for most of the hazardous
constituents listed on Appendix VIII.
Therefore, EPA has used health-based
contamination limits where such limits
exist. Specifically, the maximum
contaminant limits established for the
constituents in the-National Interim
Primary Drinking. Water Regulations
(NIPDWR) under the Safe Drinking
Water Act will be used in the ground-
water protection standard. Those
constituents and associated
concentration limits are specifically
identified in Table 1 under § 264.94.
There may also be situations where
the third option, which involves the site-
specific establishment of concentration
limits based on a narrative standard,
will be feasible. EPA decided not to rely
solely on this approach, however, for
several reasons.
It may require data that are not
readily available. Moreover, the data
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32298 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
collection and analysis needed for such
an approach may be extremely time-
consuming and resource-intensive. EPA
is concerned that such an approach
could lead to a cumbersome
administrative process that would delay
the initiation of needed measures to
control plumes of contamination. In
addition, the result of the analysis under
such a standard could be subject to
considerable scientific uncertainty and
might not serve to assure the public that
adequate measures were being taken.
Finally, this approach could divert the
owner's- or operator's resources from
expenditures on proven control
measures that will provide significant
environmental protection to
expenditures on complex analysis and
predictions about the fate and transport
of hazardous constituents.
Therefore EPA has decided to provide
for this option through a variance.
Today's regulations allow the owner or
operator an opportunity to request an
alternate concentration limit based on a
demonstration that the concentration
will not adversely affect human health
and the environment. If the data on
which the demonstration is based is
subject to considerable uncertainty, EPA
will not establish the requested
concentration limit. To avoid
unreasonable delay in the
commencement of corrective action,
today's regulations provide specific
deadlines for the submission of
information necessary to establish the
ground-water protection standard. An
owner or operator who wants to justify
a concentration limit based on the
narrative criteria in the regulations must
do so within the general time frames
applicable to the establishment of other
types of concentration limits.
In those situations where there is no
concentration limit specified in the
regulations (i.e. the NIPDWR maximum
contaminant levels in Table 1) and
where the owner or operator fails to
justify an alternate concentration limit
under the variance, today's regulations
Will be based on the fourth option,
which would require that the level of a
hazardous constituent not exceed the
background concentration of that
constituent in the ground water.
This approach has several
advantages. First, it assures that the
standard will not be violated unless
hazardous constituents have entered the
ground water from a regulated unit.
(This assumes that normal fluctuations
in background are accounted for in the
analysis of whether background has
been exceeded. This concern will be
discussed in Section VII. D.9. of this
- preamble.)
Second this approach provides
assurance to the public that the ground
water quality will not be made any
worse by the advent of hazardous waste
disposal in the area. As discussed
earlier in the preamble, this approach
assures that the current and future uses
of ground water in the area will be
preserved. EPA concluded that this
approach was the best of available
alternatives for those hazardous
constituents not addressed by the
NIPDWR, for which an alternate
concentration limit cannot be
established, because it properly
balances the need to fully protect human
health and the environment and the
need to develop fair, workable
requirements for the regulated
community.
While the numerical limits identified
in Table 1 for the NIPDWR constituents
are generally appropriate concentration
limits for those constituents, there is one
situation where the "no increase over
background" standard will be used for
those constituents. It is possible that in
some situations the level of the
constituent in background ground water
exceeds the NIPDWR limit for that
constituent. Unless the "no increase
over background" standard is applied hi
that situation, the regulations would
force the owner or operator to initiate
corrective action measures even though
no contamination had entered the
ground water from regulated units at the
facility. Such a result is inconsistent
with the basic purpose of the monitoring
and response program.
b. Use of Alternate Concentration
Limits—Under § 264.94, the owner or
operator may ask for a concentration
limit other than a NIPDWR contaminant
limit or a "no increase over background"
limit. The basic test that the Regional
Administrator will use in evaluating
such a demonstration is whether the
constituent would pose a substantial
present or potential hazard to human
health or the environment at any future
time, barring war or acts of God.
The alternate limit may be sought at
any time but EPA will not allow the
consideration of such a demonstration
to unreasonably delay the establishment
of the ground-water protection standard
for a facility. Once the ground-water
protection standard has been
established in the permit, the owner
must seek alternate concentration limits
through permit modifications under the
procedures in 40 CFR Part 124. Such
modifications are always major
modifications and the burden of proof is
on the applicant to justify the variance.
The factors that the Regional
Administrator will use in considering
this variance are identical to the factors
to be considered for the variance in
§ 264.93, which allows the Regional
Administrator to exclude some
Appendix VTII constituents found in
ground water from the list of hazardous
waste constituents in the ground-water
protection standard. The distinction is
that the variance in § 264.93 does not
limit the concentration of the constituent
in the ground water underlying the
facility; this variance does.
A few examples may help to explain
how this variance may work. These
examples are not to be interpreted as
scenarios that will necessarily qualify
for alternative concentration limits nor
are they the only possible scenarios. An
owner or operator may have a regulated
unit located close to a river that is
downgradient from the unit. The owner
or operator may also be able to show
that the ground water between the unit
and the river will never'by used. He may
also be able to show that as long as
contaminant levels are maintained
below certain thresholds the
assimilative capacity of the river will
not be exceeded. This situation may be .
a good candidate for an alternate
concentration limit.
A second scenario is one in which the
owner or operator is able to
demonstrate that there is a high
concentration threshold for a
contaminant based on available health
and environmental data. By keeping the
concentration of the contaminant in the
ground water at the compliance point
below that level, he can assure that
there will be no adverse effects
downstream on human health or the
environment. A third scenario might be
based on attenuation in the saturated
zone. The owner or operator may be
able to show that as long as the
concentration of a hazardous
constituent does not exceed certain
levels at the compliance point, the
concentration of that constituent at a
downgradient point of use will be non-
detectable or within commonly accepted
health standards. (It should be noted
that EPA believes it extremely difficult
to make this latter demonstration.)
As with the variance in § 264.93, the
owner or operator may not receive an
alternate concentration limit by showing
that the adverse effects on human health
and the environment will be delayed. In
addition, EPA intends to rely on
designations of underground sources of
drinking water and exempted aquifers
under the UIC program when
considering what the uses of ground
water are likely to be in the area. In
addition, it should be understood that
the variance in this section will not be
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations ' 32299
used to reconsider the health basis of
the National Interim Primary Drinking
Water Regulations. The Regional
Administrator may establish alternative
concentration limits for the constituents
in Table 1, but these alternative limits
must be based on factors (e.g., likely
attenuation during migration) that do
not call into question the basis for the
MCL's.
6. Compliance Point (§264.95). The
ground-water protection standard must
also define the point in the ground water
at which the standard must be met. The
Agency considered several options and
concluded that the compliance point
should be the edge of the waste
management area.
a. Alternatives Examined—The first
option considered was some point
directly below the waste. EPA rejected
that option for several reasons. It is not
generally practical to attempt to monitor
ground water directly underneath a land
disposal unit. Drilling wells through a
regulated unit itself is unwise because
such wells can only undermine the
integrity of the unit design, creating a
conduit for the passage of hazardous
constituents to ground water. It is
conceivable that wells could be drilled
at an angle underneath a regulated unit
so that there would not be a need to
penetrate the liner in the regulated unit
EPA does not think that this type of
monitoring system has been shown to
operate effectively at a sufficient
number of hazardous waste disposal
units to justify its use as the general
requirement in today's regulations.
Moreover, there will not typically be a
substantial delay in detecting hazardous
constituents if the compliance point is at
the edge of the waste management area
as'opposed to some point below a
regulated unit.
A second option considered was the
property boundary.'EPA considered this
approach carefully but decided that it
did not provide sufficient time to take
corrective action once noncompliance
occurred. Moreover, this approach could
allow contamination of large quantities
of ground water within the property
boundary, water that would eventually
move off site.
A third option considered was to
establish a buffer distance outside of the
waste management area. EPA decided
not to take this approach. There was no
rationale for a fixed buffer distance that
would apply to all facilities. EPA did
actively consider the use of a buffer
zone that was based on assuring at least
S years of flow time within the property
boundary. EPA eventually decided
against this approach because it was
difficult to justify the 5-year time frame
and because this approach could still
allow significant ground-water
contamination before corrective action
would begin.
The fourth option considered was the
edge of the waste management area.
EPA ultimately decided that this was the
best of the available options for several
reasons. EPA believes this approach will
provide the greatest assurance to the
public. Given the fact that there is a
degree of uncertainty about how
successful corrective action measures
will be, EPA does not think that it makes
sense to allow contamination of large
quantities of ground water when
selecting a compliance point. Moreover,
since the owner or operator is not
expected to be present at the facility
forever, it is reasonable to require him to
keep the ground water under his control
as clean as possible while he is present
at the facility. This is consistent with the
general philosophy of these regulations
to require reasonable steps to provide
long-term environmental protection.
In addition, EPA believes that
corrective action is likely to be most
cost-effective when conducted at the
edge of the waste management area.
The plume of contamination is likely to
be most concentrated at that point,
meaning that less water will need to be
removed and managed if it is removed
there instead of some other
downgradient point. In addition to being
cost-effective, a strategy that reduces
the need to remove large quantities of
ground water is a sound water
conservation policy. By using the edge of
the waste management area as the point
of compliance, EPA has reduced the
likelihood that corrective action
measures would deplete the aquifer and
thereby impair use of ground water in
the area.
b. Use of Compliance Point—While
"compliance point" is the term of art
used to define the location where the
ground water protection standard is
measured the "compliance point" is, in
fact, a surface (or a set of points.)
Specifically, the compliance point is a
vertical surface located at the
hydraulically downgradient limit of the
waste management area that extends
down into the uppermost aquifer
underlying the regulated units. The
•waste management area is the limit
projected in the horizontal plane of the
area on which waste will be placed
during the active life of a regulated unit.
This area will be specified in the facility
permit. Where there is more than one
regulated unit at the facility, the waste
management area is described by an
imaginary line circumscribing the
several regulated units.
The edge of the waste management
area is not the outer limit of the waste
itself. The limit includes any horizontal
space taken up by liners, dikes, or other
barriers designed to contain waste in a
regulated unit. The purpose of this
provision is to avoid the implication that
monitoring and corrective action wells
should be drilled through the structures
which are designed to control the waste,
clearly a counterproductive result.
In defining the compliance point for
the ground-water protection standard,
EPA considered the implications of the
selected approach for existing plumes
that have appeared at existing facilities.
At the time that it initiates permitting for
existing facilities, EPA may find that
hazardous constituents have already
migrated beyond the compliance point
at some units. Under the regulatory
system in today's regulations, however,
portions of plumes that have migrated
beyond the compliance point will be
addressed under the permit. EPA will
require the cleanup of the portion of
these plumes up to the property
boundary as a condition of continued
operation after the effective date of
these rules. (This issue is discussed in
Section VIII.D.13.d. of this preamble.)
Portions of plumes that have migrated"
beyond the facility property boundary
are not subject to the monitoring and
response program of Subpart F.
EPA believes that today's regulations
reflect a reasonable approach, as a
matter of law and policy, on the
appropriate scope of the Subtitle C
program. Plumes that have already
migrated beyond the property boundary
may be addressed by other EPA
programs. If such a plume presents an
imminent and substantial endangerment
to health or the environment, EPA may
take enforcement action under Section
7003 to correct the situation. Such
plumes may also qualify for remedial
action measures under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA).
EPA will actively consider the use of
these other authorities to address
plumes of contamination that have
migrated beyond the property boundary
_ at the time of initial permitting. EPA
must operate within the constraints of
those laws and thus cannot guarantee
that actions under these other
. authorities will also be appropriate. EPA
does intend, however, to take a close
look at plumes of contamination that
have migrated beyond the property
boundary at the time of initial permitting
to determine whether action under other
authorities is justified.
7. Compliance Period (§ 264.96). In
setting the ground-water protection
standard, the Regional Administrator
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32300 Federal Register / Vol. 47, No. 143 / Monday; July 26. 1982 / Rules and Regulations
must define the time period over which
it will apply. In § 264.96, the regulations
indicate that the compliance period to
be set in the permit is the number of
years equal to the active life of the •
waste management area (including any
was.te management activity prior to
permitting, and the closure period.)
As described in Section VIA. of the
preamble, the compliance period is to be
based on the active life of a regulated
unit, the time period during which the
most significant release of liquids to the
ground is likely to occur. Where more
than one unit is contained within the
waste management area of the facility,
liquids may enter the ground for the
period beginning when waste is first
placed in any unit within the waste
management area and continuing until
the last unit within the waste
management area is properly closed.
Accordingly, the appropriate time frame
.for this compliance period is the period
equal to the active life of'the waste
management area.
EPA recognizes that there may be
situations where particular plumes.or
portions of plumes can be linked to
particular units, depending on the
configuration of the waste management
area. For example, where the waste
management area is made up of a series
of adjacent landfill trenches and ground-
water flow is parallel to those trenches,
it may theoretically be possible to
distinguish which trench created a
plume that may appear at the
compliance point. Today's regulations,
however, do not allow for the
establishment of individual compliance
periods for each regulated unit within
the waste management area. EPA is
considering whether to provide for such
an option and seeks further comment on
this issue. In particular, EPA asks
commenters to address the need for
such a provision, the practical feasibility
of distinguishing plumes from different
units within the same waste
management area, and the technical
criteria that might be used in
determining when this option might be
appropriate.
In calculating the compliance period,
the Regional Administrator will include
the time that any regulated unit was
operating prior to permitting. The basis
for the compliance period is the time
period during which leachate could have
entered the ground due to the absence of
a liner or the failure of the liner. The fact
that some of that time period occurred
before permit issuance and some after
should not influence the length of the
time period.
The compliance period begins to run
when the owner or operator initiates a
compliance monitoring program under
§ 264,99 following detection of
hazardous constituents in ground water.
This assumes that detection of
hazardous constituents in ground water
indicates that the front of the plume is
entering ground water.
It is theoretically possible, however,
that the actual front of the plume is
relatively dilute and that the detection
monitoring program would not indicate
the presence of hazardous constituents
in the ground water until some later,
more contaminated, portion of the plume
appears. In such a case, the theory of
plume migration described in Section
VI.A. of this preamble would suggest
that the compliance period should be
shorter than the length of the regulated
unit's active life. (Under that theory, the
compliance period is linked to the time
period during which the most significant
portion of the plume is expected to
appear.)
EPA knows of no way to account for
this scenario in setting the compliance
period because it depends on knowledge
about the quality of leachate that is
entering the ground water, a fact that
will not be known at the time the
ground-water protection standard is
established. Therefore, the compliance
period will be linked to the full active
life of the regulated unit (or the waste
management area if there is more than
one unit), based on the assumption that
the detection monitoring program will
detect the initial front of a plume of
contamination emerging from the
regulated unit.
The compliance period may extend
beyond the number of years equal to the
active life of the waste management
area if corrective action has been
initiated but not completed. EPA
believes that corrective action measures
should be completed once begun. The
capital expenditures will have already
been made, so the permittee will only
bear the additional costs of operating
the corrective action equipment. The
fact that the ground-water protection
standard is still exceeded at the end of
the normal compliance period indicates
that an environmental problem is still
present. This may be caused by the fact
that some constituents in the plume may
have proceeded through the soil more
slowly than those that were at the front
of the plume. In keeping with the general
philosophy that the owner or operator
should seek to remove environmentally
significant levels of hazardous waste .
leachate from the environment, EPA
believes that it is reasonable for the
compliance period to be extended where
necessary to complete corrective action.
It is necessary, then, to define what is
meant by completing corrective action.
Today's regulations indicate that the
owner or operator can demonstrate the
success of corrective action by showing,
with monitoring data, that the ground-
water protection standard has not been
exceeded for a period of three
consecutive years. This time period
should provide a reasonable margin of
safety in determining whether a plume
of contamination has been removed.
Depending on when corrective action
begins and its success in removing or
treating contamination, it is possible
that the compliance period will extend
beyond the post-closure care period fo~r
the unit. The regulations do not provide
that the post-closure period would be
automatically extended for the same
duration as the compliance period. It
may not always be necessary for the
compliance period and the post-closure
care period to continue for the same
amount of time because the activities
involved may have differing objectives.
Cover maintenance, for example, may
not be directly related to the task of
cleaning up a plume caused by leachate
that entered the ground during the unit's
active life. The Regional Administrator
may, however, modify the permit to
extend the post-closure care period
under § 264.117 of the existing
regulations. Under the general criteria
established in § 264.117, it may be
entirely appropriate to extend the post- '
closure care period to be coterminus
with the compliance period.
8. General Ground-water Monitoring
Requirements (§264.97). In § 264.97,
EPA has set forth a series of general
requirements that address such topics as
well design and placement, sampling
and analysis procedures, analytical
methods, sampling of water elevations,
determination of background, and
statistical procedures.
It is most efficient to describe these
requirements as they come up in later
sections of this preamble that discuss
the specific ground-water monitoring
programs. Two of these general
requirements, however, deserve special
discussions. They are described in the
following two sections.
9. Determination of Background
(§ 264.97(g)). In many situations, the
concentration limit for a particular
hazardous constituent will require no
increase over the background
concentration of the constituent. In
addition, the detection monitoring
program relies on increases over
background levels of parameters or
constituents to define when a regulated
unit is leaking. Today's regulations are
designed to ensure that the calculation
of background ground-water quality will
be based on accurate data.
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32301
The level of chemical constituents in
ground water may fluctuate
substantially over time. One of the
major sources of variation is seasonal
fluctuation. During different times of the
year the recharge rates to ground water
will vary, reflecting the differences in
climate, rainfall, and other factors.
When recharge rates are high, there may
be more dilution and the background
concentrations of constituents tend to
fall. When the recharge rate is low, the
concentration of constituents in
background ground water may increase.
EPA believes that such variation in
background concentrations should be
accounted for if this can be done
without compromising other regulatory
objectives. For detection monitoring,
today's regulations provide that
background concentrations will be
• determined by the mean of values
measured at least quarterly for one year.
Quarterly sampling is required to
roughly accord with the seasons.
EPA does not believe that this general
approach can be used in the compliance
monitoring program because of the
environmental situation at the time thai
such a program is required. If hazardous
constituents are moving downgradient,
they may present a considerable risk of
causing adverse effects on human health
and the environment. EPA does not
believe it is generally appropriate to
allow such a plume to continue to
migrate while the owner or operator
collects background data for one year.
Therefore, EPA will, whenever possible,
rely on whatever reliable background
data is available to establish
background values for the compliance
monitoring program.
Today's rules require that a request
for a permit modification to incorporate
a compliance monitoring program be
submitted by the owner or operator
within 90 days of determining that there
has been a statistically significant
increase in the concentration of a
detection monitoring parameter. During
this 90 day period multiple ground-water
samples can be obtained from the
monitoring wells, and analyzed for the
presence and concentration of
hazardous constituents. Potential
seasonal variations in concentrations
cannot be established during this period.
Depending on the length of the permit
process, the owner or operator may
have enough time to develop one year of
background data for each constituent.
The Regional Administrator will
exercise discretion in processing a
permit modification application to
incorporate compliance monitoring
when available data (including data
collected during the 90 days after finding
a statistically significant increase in a
detection monitoring parameter] suggest'
that additional measurements of
background concentrations are
necessary to adequately account for
anticipated seasonal variations. This
situation could occur when Appendix
VIII constituents in ground water at the
compliance point are present in
concentrations which are not greater by
a statistically significant amount than
the concentrations of these constituents
in samples from upgradient wells. If, in
such a situation, the owner or operator
has evidence that the concentrations of
the constituents in ground water vary
over time, then additional sampling and
analysis over time to account for such
variation in background concentrations
may be prudent.
Occasionally, additional sampling and
analysis over time may be appropriate
even where compliance point
concentrations exceed upgradient
concentrations, at a given point in time,
if the Regional Administrator believes it
reasonably possible that this difference
is due to seasonal or spatial variation hi
ground-water quality. In this case,
however,' the Regional Administrator
would consider whether the rate of
ground-water flow (and any plume of
contamination) was sufficiently slow
that additional time for collection of
ground-water quality data would
jeopardize the potential for successful
corrective action if it is determined to be
necessary. The Regional Administrator
would not, however, consider allowing
time for additional data gathering in
cases where the initial difference in
compliance point and upgradient
constituent concentration is well aboVe
potential seasonal variation.
The owner or operator who wants to
account for seasonal variations in the
background values has at least two
additional options. He can anticipate the
need for such data by collecting
upgradient data on Appendix VIII
constituents likely to be in leachate
before detection monitoring program
indicates that leakage has occurred. He
may also continue to collect background
data after the compliance monitoring
program permit is issued. He may use
that data hi making a demonstration
under § 264.99Q) that an apparent
increase over concentration limits in the
ground-water protection standard is
caused by contamination from other .
sources. He may also use the data in
seeking a permit modification to change
the background values contained in the
compliance monitoring program.
Another issue hi the establishment of
background for a constituent is the
question of what wells should be used in
the data base. One option is to establish
background at downgradtent wells and
then to determine whether ground-water
quality at each well increases
significantly over time. The principal
disadvantage of this approach is that is
can lead to major miscalculations at. an
• existing regulated unit. Such a unit could
be leaking quite heavily. If the plume of
contamination is included in,the data
base used to determine background, the
plume could continue to flow and the
analysis of ground-water quality at the
downgradient wells would not show a
statistically significant increase.
Another option is to base background
on data from both upgradient and
downgradient wells. This approach
suffers from the same general problem
described above. A plume of real
contamination could become part of the
data base for determining background
and lead to a failure to detect a
significant plume.
A third option, which EPA believes is
preferable in most situations, is to base
background data on upgradient wells.
Assuming these wells are properly
placed, they should produce data that
are not biased by contamination from
the facility.
There is, however, a conceptual
difficulty with the use of upgradient
wells as the basis for determining
background^ In a theoretical sense, an
"increase over background" test at the
compliance point attempts to compare
the sampled ground-water quality at the
compliance point to what that ground-
water would have been at the
compliance point in the absence of the
facility.
In the option just described, the
upgradient wells are being used to
indicate what the ground-water quality
at the compliance point would have
been in the absence of the facility. The
problem here is that there may be some
lag time between upgradient and
downgradient wells due to the slow
movement of ground water. Thus,
upgradient ground-water quality may
not always be exactly the same as
background ground-water quality at the
compliance point. While this factor may
be a source of error, EPA knows of no •
reliable way to correct for it. Given the
alternatives, EPA still believes that this
approach is superior because it at least
does not present the possibility of
including leachate from a regulated unit
in the data base for calculating
background values.
There may be situations, however,
where the data used to calculate
background values may be taken from
wells other than the upgradient wells. In
some situations, it may not be possible
to determine what wells are upgradient.
For example, if a land disposal unit sits
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32302 Federal Register /Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
on a hilltop, the entire perimeter of a
regulated unit is, in a sense,
downgradient. In such a situation, it
may be more useful to establish
background by drawing samples from a
nearby background plot that is
representative of general ground-water
quality in the area.
In other situations, the possibility that
wells other than upgradient wells may
be affected by contamination from a
regulated unit may not be a serious risk.
For example, at a new facility that has
not yet received waste, it might be quite
acceptable to use downgradient wells in
the determination of background
ground-water quality.
To account for situations such as .
these, EPA has provided a variance from
the general requirement that background
ground-water quality be based on
upgradient wells. Such a variance is
appropriate where hydrogeologic
conditions do not allow the owner or
operator to determine what wells are
upgradient or where sampling at other
wells will provide an indication of
background ground-water quality that is
as representative or more representative
than that provided by upgradient wells.
Today's regulations do not specify
how many wells must be installed to •
provide the data base for determining
background ground-water quality. In
§ 264.97(g), however, the regulations
indicate that certain minimum numbers
of samples must be taken. The owner or
operator must take at least one sample
from each well used in the calculation of
background (i.e., one from each
upgradient well in the normal case).
. This will ensure that broadly-based data
are used, and that the owner or operator
cannot selectively use various data'
points.
The regulations also require a
minimum of four samples from the entire
system in the determination of
background. This means that if there is
only one upgradient well, then the
owner or operator would take four
replicates at that well; if there are two
wells, the owner or operator would take
two from each well.
. 10. Statistical Procedures (§ 264.97(h)).
In the detection monitoring program, the
owner or operator must determine
whether background values of
monitoring parameters or constituents
are exceeded at the compliance point. In
the compliance monitoring program, the
owner or operator must determine
whether concentration limits (which
. may include background values) for
hazardous constituents are exceeded at
the compliance point. In order to be sure
that the ground-water quality measured
at the compliance point reflects an
accurate indication of whether a
background value or concentration limit
is exceeded, today's regulations require
that the owner or operator determine
whether a "statistically significant"
increase (or decrease in the case of pH)
over background values or
concentration limits occurs at the
compliance point.
The regulations set forth the general
standards that must be met by the
statistical procedures used at the
facility. In referring to "statistical
procedures" in § 264.97(h), EPA means
to emphasize that the concept of
"statistical significance" must be
reflected in a number of aspects of the
monitoring program. This involves not
just the choice of a level of significance,
but also the choice of a statistical test,
and the requirements of the number of
samples and the number of replicate
measurements run on each sample.
Since all of these interact to determine
the ability of the procedure to detect
•contamination, the statistical procedures
must bfe evaluated in their entirety and
not evaluated by individual component.
EPA's basic concern in establishing
standards for statistical procedures is to
achieve a proper balance between the
risk that fee procedures will falsely
indicate that a regulated unit is causing
background values or concentration
limits to be exceeded (false positives)
and the risk that the procedures will fail
1o indicate that background values or
concentration limits are being exceeded
when that is, in fact, the situation (false
negatives). Today's regulations are
designed to address that concern
directly.
a. Basic Statistical Procedure—EPA
has not been able to specify one set or
several sets of statistical procedures
that will provide a high level of
confidence in the results for all
situations. Many different situations
exist and no one procedure is
appropriate for all circumstances.
EPA also found it difficult to try to
reduce the regulations to a set of
specific numerical performance
standards that would achieve the proper
blance between false positives and false
negatives. A major reason for EPA's
inability to establish such performance
standards at this tim.e is that the
probability of correctly deciding that a
regulated unit is contaminating (often
expressed as the "power" of a statistical
test) cannot be easily summarized by a
single number because the power of a
test is related to the magnitude of the
difference between two populations.
Today's regulations do not attempt to
express the idea of "exceeding
background values or concentration
limits" in terms of any minimum
magnitude; any increase is a cause for
concern under today's regulations. The
implication of this for the statistical
procedures is that a performance
standard related to the power of a
statistical test would have to be
specified for every possible minimum
magnitude that might be of concern.
This is not feasible at this time given the
state of knowledge about ground-water
contamination.
An alternative would be for EPA to
decide what magnitude of increase it
was concerned about and to specify
how powerful the test would be for that
magnitude of .difference. However, the
Agency is unable, at this time, to
determine an amount of contamination
that is acceptable and thus is not able to
set such a magnitude. Also, the problem
would remain of having to specify how
powerful the test should be for values
above that minimum difference of
concern. EPA invites comment on this
issue.
Consistent with its general strategy,
however, EPA has tried to bring
certainty to these regulations wherever
possible.
Therefore, the Agency is establishing
a specific sampling requirement,
statistical test, and significance level for
those situations for which the Agency
believes the test is appropriate. This
specific approach will then serve- as a
benchmark against which other
statistical procedures may be compared.
The comparison should be based on
their theoretical properties combined
with available data from the specific
site. It will generally be easier to make a
relative comparison of one procedure
against another than to determine the
best possible test at a given site.
The regulations establish a standard
statistical procedure for use in the
detection phase when the background
data is approximately normally
distributed. The procedure requires
background sampling data, sampling
data from the compliance point, and a
specific statistical test protocol. For any
parameter or constituent from a specific
well, the protocol is as follows: .Compare
the mean contaminant level of the
compliance point data with the mean
contaminant level of the background
data using Cochran's Approximation to
the Behrens-Fisher Student's t-test. If the
comparison is found to be significant at
the 0.05 level of significance, a new
sample is drawn from that specific well
and the-comparison of the mean of the
new monitoring data with the
background data is made. If this (retest)
comparison is significant at the 0.05
level of significance, the site is judged to
produce a statistically significant
difference in contaminant level. If the
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32303
comparison is non-significant on either
the initial test or the retest, the site is
judged not to produce a significant
difference in contaminant level.
Today's regulations define the
situations in which the distribution is
likely to be normal by a coefficient of
variation. The coefficient of variation for
distribution is the standard deviation
divided by the mean. Today's
regulations assume that a sample with a
coefficient of variation less than 1.00 is
likely to have a normal distribution. This
assumption is based on the following
analysis.
For a normal distribution,
approximately 95% of all possible data
He within plus or minus two standard
deviations of the mean. Since ground-
water constituent levels cannot have
negative values, zero is the lower bound
to the distribution of sampling data and
•hence such data should have a
coefficient of variation (standard
deviation divided by the mean) of
approximately 0.5 or less. When sample
standard deviation and sample mean
are used to estimate the coefficient of
variation rather than the true
(population) standard deviation and
mean, the probabilistic nature of this
sample coefficient of variation mus't be
considered. If the data is from a normal
distribution, then less than 10% of all
sample coefficients of variation .will
exceed 1.00 by random chance. If the
data is non-normal (such as either
skewed to the left or right), then the
sample standard deviation will be large
relative to the sample mean and,
therefore, make the probability of a
sample coefficient of variation
exceeding 1.00 quite large. Accordingly
1.00 is being used to distinguish between
situations that are and are not likely to
have normal distributions.
In specifying 1.00 instead of 0.5 as the
coefficient of variation the Agency
believes that it will reduce the burden,
on both the owner or operator and the
Agency, of establishing a site-specific
data comparison procedure. More
facilities will, therefore, utilize the
specified Student's t-test than if the
coefficient of variation were specified as
0.5. For those facilities where the sample
coefficient of variation is less than 1.00
but at which the ground-water quality is
not quite normally distributed, the
specified t-test should remain valid due
to the "robustness" of the t-test.
While EPA has decided that a
coefficient of variation of 1.00 provides a
reasonable criterion for determining
whether monitoring data are likely to be
normally distributed, EPA specifically
seeks further comment on this issue.
EPA also urges commenters to provide
suggestions about other statistical
criteria that might be used to predict
whether monitoring data are likely to be
normally distributed.
. As described in the previous section
of this preamble, detection monitoring
background values are based on
quarterly sampling with at least four
replicate measurements on samples
taken per, quarter. Should there be only
one background well, the four
measurements per quarter are obtained
by splitting a sample from the one well
into four aliquots and conducting
separate analyses of each aliquot. If
there is more than one well, the
regulations require there to be at least
four measurements per quarter from the
background wells as a group with a
minimum of'one measurement per well.
This number of background
measurements is judged by the Agency
to be the minimum requirement to
adequately establish background
concentrations. Using fewer background
measurements could decrease the
confidence in the background estimate
and reduce the ability of a given
statistical procedure to detect
contamination of a given amount.
The Agency is requiring that
monitoring wells be sampled at least
semi-annually and that when a well is
sampled, the sample is divided into at
least four aliquots on which separate
analyses and measurements are then
conducted. The reason for requiring four
aliquots to be separately analyzed is to
obtain information on measurement
error. It has been EPA's experience that
measurement error cannot be reliably
estimated with less than four readings.
The standard statistical test being
required is the Cochran's
Approximation to the Behrens-Fisher
Student's t-test. The t-test is appropriate
in most situations because
concentrations measured above the limit
of quantification (defined as the value
below which numerical estimates of
concentration are unreliable) tend, to be
approximately normally distributed. The
t^st is believed to be reasonably
insensitive to moderate deviation from
normality in the distribution of the data.
The version of the t-test required for
the comparison of mean level of
background data with the mean level of
compliance point data is not the one
most commonly encountered when
comparing two data sets. A key
assumption (aside from that of
normality) for the usual test is that the
underlying variances of the two data
sets are equal. With ground-water
monitoring data, the background data
has variability due to measurement
error and seasonal variation, but the
compliance point monitoring data has
variability only due to measurement
error. Therefore, the appropriate test for
comparing the two data sets is the
Behrens-Fisher Student's t-test, which
requires special tables. A good
approximation to the relatively complex
Behrens-Fisher Student's t-test is
supplied by the Cochran's
approximation to the Behrens-Fisher
Student's t-test, which uses standard
tables. These tables are commonly
available and it takes no special
statistical skills to interpret the results
of the test.
EPA is fixing the level of significance
for the Student's t-test at 0.05 for each
parameter at each well. When the
Agency proposed this significance level
for interim status ground-water
monitoring, it received some criticism
that this would produce too many
notifications of contamination where
none had actually occurred.
EPA recognizes that this could be a
problem, particularly when there are
many comparisons being made for
different parameters and for different
wells. However, EPA is concerned that a
lower significance level would unduly
compromise the ability to detect
contamination when it did, in fact,
occur.
Instead EPA believes that, given the
number of parameters likely to be
selected in a detection monitoring
program, the problems created by a
significance level of 0.05 are adequately
controlled by the provision for an
automatic retest procedure. The
regulations for use of the Student's t-test
specify that, for each specific well, one
must retest those parameters that tested
as a significant difference the first time.
They also specify that the observed
difference of the first sample is not
considered to be statistically significant
for purposes of this regulation unless the
retest also shows a significant
difference.
It may be demonstrated that, without
the retest provision, the "compounding"
effect of multiple comparisons creates
an overall significance level that EPA
believes to be too high. For example, if
there were twelve comparisons (4
parameters at each of three
downgradient wells), each to be made at
a significance level of 0.05, then the
overall significance level for the twelve
comparisons as an entire group is 0.46,
too high for practical use. If the retest
procedure is used in the same situation,
the overall significance level for the
entire group is 0.03, a more acceptable
value.
EPA certainly seeks to avoid a
situation where non-contaminating sites
are falsely identified as contaminating
due to repeated use of a univariate
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32304 Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations
statistical test procedure. EPA does not
believe, however, that this problem
should be addressed by reducing the
significance level applied to individual
tests and thereby undermining the
ability to detect real contamination.
Comments are invited on how to
construct a statistical test procedure
that has an acceptably low probability
of falsely identifying a non-
contaminating regulated unit, yet
provides an acceptably high probability
of identifying a truly contaminating
regulated unit.
EPA recognizes that even where the
distribution of background data is
expected to be normally distributed (i.e.,
the coefficient of variation is less than
1.00), there may be situations where the
owner or operator can devise statistical
procedures that are more cost-effective
to him and which will provide reliable
results. Therefore, today's regulations
allow the Regional Administrator to
• approve such procedures if he finds that
the procedures balance the risk of false
positives and false negatives in a
manner comparable to that provided by
the Student's t-test protocol specified in
the regulations. In examining the
comparability of the suggested
procedure, the Regional Administrator
will not focus on a single aspect of the
procedure, such as the significance level
of the test, but rather will look to the
overall ability of the procedure to
provide a reasonable balance between
the risk of false positives and false
negatives. The Regional Administrator
will specify in the permit such things as
the sampling frequency and the sample
• size for the alternative statistical
procedure.
b. General Alternative to Basic
'Procedure.—EPA recognizes that there
will be situations where the t-test
specified for the detection monitoring
program will not be useable in that
program or in the compliance monitoring
program. In such situations, it is
necessary to develop procedures that
are tailored to the specific situation-at
the facility. EPA has established a
general narrative standard for such
situations. The standard indicates that
EPA has two principal concerns in the
development of such procedures: (1)
That the procedure be appropriate for
the distribution of the data used to
establish background values or
concentration limits; and (2) that the
procedure provide^ a reasonable
balance between the risk of false
positives and false negatives.
EPA has not specifically required that
the procedure be comparable to the
t-test protocol described above. The
regulations indicate, instead, that the
procedure must provide reasonable
confidence that the migration of
hazardous constituents from a regulated
unit into and through the aquifer will be
indicated. (The reference to hazardous
constituents does not mean that this
option only applies to compliance
monitoring; the test also applies to
monitoring parameters and constituents'
in the detection monitoring program
since they are surrogates indicating the
presence of hazardous constituents.)
The t-test protocol will,1 however, be
used as a general benchmark for
defining "reasonable confidence" in the
proposed procedure. If the owner or
operator shows that his suggested test is
comparable to the Student's t-test in its
results, then it is likely to be acceptable
under the "reasonable confidence" test.
There may be situations, however,
where it will be difficult to directly
compare the performance of an
alternative test to the t-test protocol. In
such cases, the alternative test will have
to be evaluated on its own merits.
EPA would Mice to give further
specificity to these general criteria for
evaluating statistical procedures. The
Agency will be analyzing this issue
further to see whether more specific
criteria can be developed. The Agency
hopes to at least provide further
guidance about the kinds of statistical
procedures that could be adequate
under the general criteria in the
regulations. EPA encourages public
comment on this issue.
c. Statistical Procedures for
Compliance Monitoring—The basic t-
test protocol specified in the regulations
was not applied to the compliance
monitoring program. The reason for this
is that EPA believes a compliance
monitoring program is more likely to be
subject to a high "experiment error rate"
than is the detection monitoring
program. An experiment error rate
depends on the number of individual
comparisons being made for a facility.
Each individual comparison of a
constituent at a compliance point to the
concentration limit for that constituent
is subject to an error rate (i.e.,
probability of a false positive) that is
'^determined by the significance level
used with the test. When many
individual comparisons are made, this
error rate is compounded'such that the
probability that at least one comparison
will falsely indicate statistical
significance will greatly increase.
EPA expects that the list of
constituents to be monitored in the
compliance monitoring program will be
greater than that in the detection
monitoring program. The'experiment
error rate in such a situation could be
too high. Therefore, the statistical
procedures used in the compliance
monitoring program have been generally
subjected to the "reasonable
confidence" standard. Where the
number of hazardous constituents
identified in the compliance monitoring
program is not too large, it may be quite
reasonable to use the t-test protocol in
the complianpe monitoring program and
such an approach would be encouraged.
d. Other Situations—There will be
other situations where the general
standard rather than the t-test protocol
should be used to evaluate the owner or
operator's statistical procedures. One .
such situation occurs when the
' coefficient of variation for the
background data is greater than 1.0. In
such a situation it is quite possible that
the data is not normally distributed. In;
that situation the general narrative test
will be used. It is particularly important
in such a situation to ensure that any
statistical procedure used is appropriate
for the distribution of the data.
A second situation that will probably
require the crafting of a specialized
procedure is one in which the
background level of a constituent is
below the detectability limit of the
analytical methods used or is recorded
as a trace level of the constituent. EPA
believes that appropriate statistical
procedures can be developed in such
cases.
Another situation which may be
confronted, in the compliance
monitoring mode, involves point in time
comparisons between upgradient and
downgradient ground-water sample
analyses, in contrast to comparisons*
against previously established
background values. In situations where
.there is a high temporal correlation of
upgradient and downgradient ground-
water quality, that is upgradient and
downgradient quality varies" uniformly
over time, then well to well comparisons
may be judged appropriate by .the
Regional Administrator. An appropriate
statistical comparison procedure will
need to be established in permits which
incorporate such point in time
comparisons.
The statistical procedures developed
under the general standard need not '
always be more complex than those
used hi the basic t-test protocol. For
example, where an-alternative
. concentration limit is a fixed health-
based number which has no' variance, a
simpler version of the t-test than the
Cochran's Approximation of the
Biehrens-Fisher Solution may be used.
11. Detection Monitoring Program
(§264.98). The last three sections of
Subpart F (i.e., §§264.98, 264.99, and ^
264.100) set forth the specific elements
of each type of ground-water monitoring
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32305
and response program. In doing so, these
sections define the specific
responsibilities that an owner or
operator must meet under Subpart F,
incorporating the appropriate elements
of the other sections of Subpart F.
If hazardous constituents from a
regulated unit have not reached ground
water at the time of permit
consideration, the owner or operator
may receive a detection monitoring
program permit. The following is a
description of what such a program will
contain.
a. Parameters to be monitored—The
purpose of a detection monitoring
program is to determine whether a
regulated unit is leaking. The Regional
Administrator will specify in the facility
permit the constituents or parameters
that must be monitored in order to make
that determination.
The list of parameters to be monitored
may include indicator parameters, such
as pH, specific conductance, total
organic carbon, or total organic halogen.
These four parameters are the specific
monitoring parameters used in the Part
265 ground-water monitoring
regulations. The list of parameters may
also include the results of gas
chromatography procedures using
specific detectors, such as GC/ECD or
GC/FID. Where indicator parameters
are not capable of detecting all known
waste constituents or reaction products
in ground water, the Regional
Administrator may include specific
waste constituents or reaction products
in the list of detection monitoring
parameters.
The basic test that the Regional
Administrator will apply is that the
parameters used must provide a reliable
indication of the presence of hazardous
constituents in ground water. In making
that determination, the Regional
Administrator will address four major
factors. First and foremost, the Regional
Administrator will consider the types
and quantities of hazardous wastes that
are managed at a regulated unit, and the
concentrations of constituents within
those wastes. The Regional
Administrator will consider whether
those wastes are inorganic, organic, or
both. The Regional Administrator may
also consider, for example, whether an
organic hazardous waste is a
chlorinated compound, the quantity of
this waste managed at the regulated
unit, and the concentration of
constituents within the waste.
Second, the Regional Administrator
will consider the quality of the leachate
as it passes through soil beneath the
waste management area prior to
entering ground water. Because an
accurate prediction of leachate quality,
mobility, stability, and persistence in the
unsaturated zone is very difficult, this
consideration will often not be critical in
selecting detection monitoring
parameters. However, there may be
situations where approximations of
these leachate characteristics will lead
to rejection of certain indicator
parameters or may assist in selecting
others to account for products of
leachate reactions with soil. For
example, the Regional Administrator
could choose an inorganic indicator
parameter to detect soil constituents
that may be leached from the soil into
ground water as a result of leakage from
a surface impoundment containing
highly corrosive wastes. Third the
Regional Administrator will consider the
detectability of the potential monitoring
parameters or constituents. Routine
analytical procedures must yield
accurate-concentrations or values for
monitoring parameters if they are to be
usable in detection monitoring
programs. Parameters which are
extremely difficult to measure in ground-
water samples will seldom be specified
by the Regional Administrator
regardless of how representative they
are of the waste managed in a regulated
unit.
Fourth, the Regional Administrator
will consider the variability of the
concentration or value of a monitoring
parameter in background ground water
that is unaffected by a regulated unit.
Today's rules include the use of the
coefficient of variation in selecting
detection monitoring parameters. The
coefficient of variation is derived by
dividing the standard deviation of a
parameter in background ground water
by the average concentration or value.
As discussed previously in this
preamble, the coefficient of variation
has been included in these rules to
account for the occasionally wide
variation in background ground-water
quality over time. In general, ground-
water quality tends to vary seasonally,
principally due to recharge events, such
as heavy spring rain. By comparing the
average concentration or value during a
given year, the Regional Administrator
will draw conclusions about the
potential effectiveness of a detection
monitoring parameter. Monitoring
parameters with large coefficients of
variation will be avoided whenever
possible because it becomes
increasingly difficult to determine
statistically significant changes in
ground-water quality as the coefficient
of variation for a parameter increases.
b. Detection monitoring system—The
owner or operator must install a ground-
water monitoring system at the
compliance point that complies with
certain basic performance standards.
The monitoring system must include a
sufficient number of wells, installed at
appropriate locations and depths, to
yield ground-water samples that
indicate the quality of ground water
passing through the point of compliance.
This general standard is similar to the
Part 265 requirement concerning well
placement in that it places the burden
on the applicant to develop a system
that yields representative samples.
Unlike the Part 265 regulations,
however, today's regulations do not
require a minimum number of
downgradient wells. Such a requirement
is not as necessary in today's
regulations because EPA will be
evaluating the adequacy of the system
during the permit process. EPA expects
that at least three wells, the minimum
number of wells specified in the Part 265
rules, will be needed at most facilities.
There may be situations, however,
where an adequate job may be done
with fewer wells. The Agency intends to
issue guidance on ground-water
monitoring that will assist the applicant
on this issue.
EPA anticipates that ground-water
monitoring systems installed at most
interim status facilities Will be sufficient
for detection monitoring in today's rules.
Systems developed for assessment
monitoring under the interim status
regulations may not, however, be
adequate. For example, such systems
may not have been installed at the
compliance point. The information
provided by sampling at such wells may,
however, be useful in the permitting
context. The applicant may use data
from interim status assessment
monitoring to justify an alternate
concentration limit for particular
hazardous constituents.
As in the Part 265 regulations, today's
rules provide that monitoring wells may
be placed at the limit of the waste
management area when the facility
includes more than one regulated unit.
An adequate monitoring system must
also comply with requirements
concerning well installation. The wells
must be cased in a manner that
maintains the integrity of the monitoring
well bore hole. The casing must be
screened or perforated and packed with
gravel or sand, where necessary, to
enable collection of ground-water
samples. The annular space above the
sample depth must be sealed to prevent
contamination of samples and the
ground water. These represent standard.
practices that are designed to prevent
contamination of ground-water samples
and to avoid the possibility that a
ground-water monitoring well could
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32306 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
become a conduit allowing
contamination into ground water. The
Part 265 regulations contain a similar
requirement.
c. Establishment of background
values—Under the detection monitoring
program, the owner or operator
determines whether contaminants from
a regulated unit have entered ground
water by comparing the levels of
constituents at the compliance point to
background values for those
constituents. The first step in the
process, then, is to establish a
background value for each monitoring
parameter or constituent hi the facility
permit. In most cases, the background
value itself will be in the permit. The
Regional Administrator may, however,
specify in the permit the procedure to be
used in calculating background and
indicate that whatever value results
from that calculation shall automatically
become part of the permit. For example,
the owner or operator may have only
assembled 6 months of background data
at the time the permit is ready to be
issued. Rather than wait another 6
months until the rest of the one year of
background data has been assembled,
the Regional Administrator may simply
specify how the additional background
data will be used to calculate the
background value.
The monitoring system used to
establish background ground-water
quality must meet the same general
requirements that the monitoring system
at the compliance point must meet, with
one modification. The well placement
scheme must be designed to yield
samples that represent the quality of
background ground water that has not
been affected by leakage from a
regulated unit. As with the monitoring
system at the compliance point, today's
regulations do not specify a minimum
number of wells.
Background calculations must be
based on data drawn from the
appropriate wells. The general
guidelines "for what wells should be used
in the determination of background
values are in § 264.97(g). The owner or
operator should use those guidelines in
establishing background values (Section
VIII.D.9. of this preamble explains those
provisions.)
The background values in the
detection monitoring program must be
calculated in a form that is necessary for
the determination of statistically
significant increases under § 264.97(h).
Thus, in the case of the Student's t-test,
the owner or operator would need to
calculate the mean and variance of the
background data.
d. Duty to Monitor at Compliance
Point—Once the detection monitoring
system has been established, the owner
or operator must sample ground water
at least semi-annually at the compliance
point during the active life of a regulated
unit (including the closure period) and
the post-closure care period. The
duration of the monitoring program is
based on the general ground-water
protection strategy discussed earlier in
this preamble. The frequency of
sampling will be specified in the permit.
As in the interim status regulations,
today's rules require that sampling must
occur at least semi-annually.
e. Ground Water Flow and
Direction—Each time the ground water
is sampled at the compliance point, the
owner or operator must determine the
ground-water flow rate and direction in
the uppermost aquifer. Determining the
gradient in the aquifer will enable the
owner or operator to ensure that
upgradient wells continue to be
upgradient and downgradient wells
continue to be downgradient.
Information on ground water flow rates
can be useful in deciding what the
frequency of monitoring should be and
in devising a corrective action program.
f. Sampling and Analysis
Procedures—rThe detection monitoring
program must include procedures for
sampling and analysis that comply with
the general performance standards in
§ 264.97(d) and §264.97(e). The owner or
operator must develop sampling and
analysis procedures that involve
relatively standardized measures for
insuring that samples taken from
monitoring wells are properly handled
to avoid inadvertent contamination from
other sources. Ultimately, the objective
here is to provide reasonable confidence
that the samples taken will reflect true
ground water quality. The procedures
must address: (1) The procedures for
obtaining samples from ground water
monitoring wells; (2) procedures for
preserving the samples for shipment to
the laboratory; (3) the analytical
procedures to be followed in analyzing
samples; and (4) the "chain of custody"
procedures to be used to prevent loss or
mislabeling of samples during shipment
and analysis. EPA intends to issue
guidance on these topics.
The detection monitoring program will
also indicate what analytical methods
will be used in analyzing ground water
samples. The general standard in
§ 264.97(e) requires that the methods be
appropriate for ground water sampling
and provide an accurate estimate of the
presence of hazardous constituents in
ground water samples. Some
commenters have asked EPA to indicate
what the analytical methods should be.
To assist owners or operators, EPA is
revising Test Methods for Evaluating
Solid Waste (SW-846) to include
guidance on acceptable analytical
methods and procedures for ground-
water sample analyses. This guidance
should assist in the development of
appropriate analytical methods for both
the Part 265 and Part 264 monitoring
requirements.
g. Determining Statistical
Significance—Each time the owner or <
operator takes samples at the
compliance point he must determine
whether the level of the monitoring
parameters and constituents is above (or
below in the case of pH) the background
values for those parameters and
constituents by an amount that is
statistically significant. The appropriate
statistical procedures to be used are
specified in § 264.97(h) and will depend
on the pattern of the background data.
The permit will specifically detail the
statistical test that will be used. (See
Section VIII.D.10 of this preamble for a
description of the statistical
procedures.)
The owner or operator must complete
the statistical analysis within a
reasonable period of time. EPA has not
specified a minimum period of time
because it recognizes that the
reasonableness of such a time period
will depend on several factors.
Therefore, the regulations provide that
the Regional Administrator will specify
a time period within which the
statistical analysis must be completed
after considering the two key factors
that could influence the time needed—
the complexity of the statistical test and
the availability of laboratory facilities to
perform the analysis of ground water
samples.
h. Response to Finding Statistical
Significance—If the comparison
between data at the compliance point
and background values shows that a
statistically significant increase (or
decrease in the case of pH) has
occurred, there is a presumption that a
regulated unit is leaking. The owner or'
operator must pursue one of two options
in responding to that finding.
The first option is to seek a permit
modification to establish a compliance
monitoring program (and perhaps a
corrective action program) at the
facility. Such a permit modification
would be justified by the "new
information" cause for modification
under § 122.15(a)(2). The owner or
operator must take several steps as pan
of this option. First, he must notify the ,
Regional Administrator in writing within
seven days that he has detected a
statistically significant increase at the
compliance point. The notification must
indicate what parameters or
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Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations 32307
constituents have shown an increase.
Second, he must sample the ground
water at all monitoring wells for all
constituents identified in Appendix VIII
of Part 261. This will identify all
potential hazardous constituents in the
ground water.
Third, the owner or operator must •
begin to take additional samples to
determine background values for all
constituents detected at the compliance
point. The owner or operator may be
seeking to establish an alternative
concentration limit (ACL) for some of
the hazardous constituents. He must,
however, collect some background data
on such constituents to be ready hi the
event that the ACL cannot be justified
and that "no increase over background"
will becdme the concentration limit. The
owner or operator must comply with the
other general performance standards for
ground water monitoring systems, for
determination of background, and for
preparing data in a form necessary for
statistical analysis when developing this
data.
Fourth, the owner or operator must
submit a permit application for a
compliance monitoring program within
90 days. That application should
indicate what hazardous constituents
have been found in ground water. For
each such constituent found, the owner
or operator must indicate what type of.
concentration limit (background value,
NIPDWS level, or alternate
concentration limit) should be
established. The owner or operator must
also describe any appropriate changes
to be made to the ground water
monitoring system, the monitoring
frequency, sampling and analysis
procedures or methods, or statistical
procedures. In most cases, the permit
applicant will at least'be modifying the
constituents to be monitored, and
therefore, the analytical methods to be
used. Monitoring frequency is also likely
to be increased. Changes to the
statistical procedures may also be
needed, depending, for example, on the
variance found in background data. In
most cases, the applicant will not need
to make substantial changes to the
ground-water monitoring system.
Given that the modifications to the
ground water monitoring program will
primarily be ones involving changes in
operating procedures, EPA believes that
the applicant should be able to submit
the application within 90 days.
If the owner or operator wants the
Regional Administrator to establish
alternative concentration limits, the
information needed for the application
will be more extensive. As indicated
earlier in this preamble, EPA does not
believe that permit issuance should be
unreasonably delayed to allow an
applicant to begin to collect data
necessary for an ACL showing.
Applicants who anticipate that they will
want to pursue an ACL demonstration
should do some advance planning to
allow them to make the demonstration
quickly.
In recognition of the fact that an
application requesting an ACL will
necessarily contain more information
and analysis than an application based
on the other types of concentration
limits, however, today's regulations
allow owners and operators additional
time to submit the information
necessary to justify an ACL. Within 90
days after detecting a statistically
significant increase in the concentration
of detection parameters or constituents
at the compliance point, the owner or
operator must indicate whether he
intends to seek an ACL variance for
each of the Appendix VIII constituents
that have been found in the ground
water at the compliance point. He
indicates his choice by either proposing
a concentration limit (background value
or NIPDWR limit) or giving notice of his
intent to seek an ACL. The owner or
operator has an additional 90 days to
submit the actual information necessary
to support each of the ACL's sought.
Timely ACL demonstrations will be
evaluated in the context of the
permitting process on the compliance
monitoring program. EPA will indicate
its decision on the merits of the ACL
demonstration when it issues the
compliance monitoring permit. The
permit will either contain a background
value or NIPDWR limit (if EPA rejects
the ACL.demonstration) or it will
contain an ACL (which may be equal to
or less than the one proposed by the
applicant).
Fifth, the owner or operator must
submit within 180 days an engineering
feasibility plan for a corrective action
program. Once the monitoring indicates
that a regulated unit is leaking and that
hazardous constituents are present in
the ground water, EPA believes that it is
reasonable to assume that corrective
action is likely to be necessary. In many
cases, the Regional Administrator will
be specifying a corrective action
program in conjunction with a
compliance monitoring program.
Therefore, EPA believes that the owner
or operator should submit a preliminary
proposal for corrective action at the
facility in conjunction with an
application for a compliance monitoring
program.
This plan does not need to detail
every aspect of the program but rather
should be an engineering feasibility plan
showing what general corrective action
measures can be taken. The plan should
be sufficiently specific to allow EPA to
determine that the corrective action
program proposed could work at the
facility. Recognizing that this plan could.
take some time to prepare, EPA has
given the applicant 180 days to submit it.
The regulations also indicate that
there are two situations where such a
feasibility plan will not be necessary.
First, if the only hazardous -constituents
are those listed in Table 1, and if the
concentrations of those constituents at
the compliance point are below the
contaminant limits specified in Table 1,
the likelihood that corrective action will
be needed is less clear. Therefore, there
is no automatic requirement for a
corrective action feasibility plan in
those cases. Second, if the owner or
operator has requested an ACL for
every Apendix VIII constituent
significantly above background, or
above appropriate NIPDWS levels found
in ground water at the compliance point,
then he is not required to submit the
engineering feasibility study. If an ACL
were granted for all of these
constituents, it would not necessarily
follow that a corrective action program
would have to be established. Therefore,
where such a comprehensive request for
ACL's has been made, the Regional
Administrator will make a decision on
the ACL demonstration before requiring
the submission of information necessary
for a corrective action program.
The owner or operator has another
option for responding to evidence that
there is a statistically significant
increase (or decrease in the case of pH)
at the compliance point. The owner or
operator may submit a report to the
Regional Administrator indicating why
he believes that the perceived increase
was caused by a source other than a
regulated unit or was the result of error
in sampling, analysis, or evaluation.
This report should be accompanied by
additional monitoring data which
indicates that the values used in the
initial analysis of statistical significance
are incorrect. Since this report is an
action that may substitute for the
submission of a permit modification
application as described above, it must
be submitted within 90 days.
The owner or operator may submit the
report just described and a permit
modification application. The owner or
operator may also choose to file the
report in lieu of the permit modification
application. If he does so, however, he is
subjecting himself to a risk. Such a
report can only operate to exempt him
from the general duty to file a permit
modification application if it clearly
indicates that the contamination is from
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
another source or is due to error. If the
report fails to demonstrate such facts
and the owner or operator has not filed
an application for a permit,modification,
he is in violation of his permit. EPA
could, therefore, take enforcement
action if it finds such a report to be
inadequate. Therefore, where the owner
or operator knows that the data on
which he bases his report is somewhat -
questionable*^ may be prudent to also
file a permit modification application.
i. Duty to Modify Program—-The
owner or operator has an ongoing
responsibility to make sure 'that the
detection monitoring program continues
to comply with the requirements of this
section. If he determines that it does not
meet the general standards contained in
this section, he should initiate a permit
modification proceeding to make
appropriate changes. For example, if his
monitoring of ground-water elevation
indicates that the gradient of the
uppermost aquifer has shifted, he should
apply for a~perinit modification to make
appropriate changes to the ground-water
monitoring system.
j. Duty to Ensure Compliance with the
Ground-Water Protection Standard—
The monitoring and response program of
Subpart E-provides for a graduated
response over time to the problem of
ground-water contamination as the
evidence of such contamination
increases. Since there is a significant
likelihood that ground-water
contamination problems will appear
some time into the active life of a
regulated unit or the post-closure care
period, EPA wants to make sure that
owners or operators engaged in current .
waste disposal will remain at the facility
to manage any plume of contamination
that emerges from a regulated unit. For
example, EPA wants to avoid a situation
which would a^ow an owner or
operator who has not detected
hazardous constituents in ground water
to continue to operate while he faces the
relatively light burdens of the detection
monitoring program and to walk away
once significant problems appear in
ground water( To clarify a permittee's
responsibilities, EPA is amending
§ 122.21(d) which sets forth the scope of
the RCRA permit requirement. The
amendment clarifies that owners and
operators of hazardous waste
management facilities must have .
permits during any post-closure care
period for the facility and during any
compliance period for the facility as
: well as during the active life of the .
facility. EPA is making a conforming
change to § 122.10(b) to clarify that
closure activities and post-closure care
both must be undertaken pursuant to a
permit.
One way of avoiding the possibility
that the owner or operator would choose
not to operate under a permit once
contamination appeared is to provide a
specific condition in the initial permit
for the facility which obligates the
owner or operator to monitor for and
clean up hazardous constituents in the
future as may be necessary to achieve
the ground water protection standard.
EPA believes that such a permit
condition constitutes sound regulatory
policy. EPA believes that the right to
dispose of hazardous waste carries with
it a correlative duty to insure that future
contamination does not cause
environmental problems. Thus, a future
responsibility should be condition of a
present authorization to operate.
Today's regulations indicate that a
detection monitoring program will
include a general permit condition
requiring the owner or operator to take
monitoring and corrective action
measures that are necessary to assure
compliance with the ground water
protection standard. The exact nature of
that commitment will be fleshed out in
later permit proceedings if there is a
need to take additional monitoring and
corrective action measures.
12. Compliance Monitoring Program
(§264.99). Once the owner or operator
determines that there are hazardous
constituents from a regulated unit, in
ground water, he must establish a
compliance monitoring program at the
facility. Many of the requirements of this
program are analogous to those required
.for the detection monitoring programs.
The discussion here will only elaborate
on.those elements of the compliance >
program that differ from the detection
program.
a.'Ground Water Protection
Standard—The ground-water protection
standard for a facility will be
established in the compliance
monitoring program permit. The
Regional Administrator will specify in
such a permit the. four elements of the
ground-water protection standard: (1)
The hazardous constitutents (§ 264.93);
(2) the concentration limits for those
constituents (§ 264.94); (3) the
compliance point (§ 264.95); and (4) the
complliance period (§ 264.96). The
criteria used to establish these permit
conditions are discussed in other
sections of this preamble.
b. Compliance Monitoring System—
The owner or operator must establish a
monitoring system at the compliance
point that will be used to determine
whether the ground water protection
standard is exceeded. The ground water
monitoring system must satisfy the same
general performance standards on well
placement and installation (e.g., casing)
that apply to detection monitoring
systems installed at the compliance
point.
c. Concentration Limits—The levels of
hazardous constituents found at the
compliance point musj be compared to
the concentration limits established in
the ground water protection standard.
The concentration limit for a constituent
will be specified in the permit either in
relationship to the background
concentration of the constituent or as a
specific concentration for the
constituent. In both cases, statistical
comparison procedures will be utilized.
In the first case, the concentration
limit will be specified to allow for a
determination of a statistically
significant increase in the concentration
of a constituent at the compliance point
over the concentration of that
constituent in ground water unaffected
by a regulated unit. In most situations,
the background concentration of a
constituent will be specified in the
permit as a result of pooling upgradient,
sample analyses over time, principally
to account for seasonal variations in the
naturally occurring ground water
. quality. ,
Where there is a high temporal
correlation between ground water
quality at the upgradient and .
downgradient monitoring wells, it may
not be necessary to require the pooling
of samples over time to account for
seasonal variations. In such a situation,
it would be acceptable to compare
upgradient and downgradient ground-
water quality each time the ground
water is sampled. Accordingly, today's
regulations provide that the Regional
Administrator may allow for such a
fc"single-point-in-time" comparison of
upgradient and downgradient samples
as an alternative to making comparisons
of downgradient sampling results
.against a set background level that was
based on a pooling of samples over time.
Where this option is used, the Regional
Administrator will specify in the permit
a procedure for how background values
will be calculated each time sampling
occurs rather th'an specific background
values.
The Agency has very limited
information regarding the prevalence of
temporal uniformity hi ground water
quality for hazardous constituents. The
Agency invites comments regarding this
phenomena where concentrations of
constitutents in ground water vary over
time but where the amount of variation
at two different monitoring wells in the
aquifer is virtually the same. Based on
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Federal Register / Vol. 47. No. 143 / Monday, July 2(3, 1982 / Rules and Regulations 32309
such further information, the Agency
may expand the use of the method just
described for determining whether
statistically significant increases occur
hi these regulations.
In the other case, the concentration
limits specified in the permit will be
either an MCL, for those constituents
listed in Table 1 under § 264.94, or an
ACL (alternate concentration limit)
established under § 264.94(b).
When the concentration limit is one of
the maximum concentration limits
(MCL's) in Table 1, a problem arises
when the MCL is quite close to the
background value of the constituent.
The MCL may be within the normal
range of fluctuating background quality.
Thus, when the monitoring system picks
up a value that exceeds the MCL, it is
not possible to tell whether the increase
was due to leachate from a regulated
unit or from normal fluctuations hi
background.
To account for this possibility, today's
regulations provide that, when an MCL
is within the normal range of
background fluctuations of a
constituent, the background value will
be used as the concentration limit. This
approach will provide reasonable
confidence that corrective action will be
triggered by an increase over an MCL
only when the increase was not caused
by normal background fluctuations.
The test used to determine whether
the MCL or the background value will
be used relies on a statistical concept. If
analysis indicates that the MCL does
not exceed the background value of a
Table 1 constituent by a statistically
significant amount, then the
concentration limit will be based on the
background value of the constituent. In
addition, if the background value for a
constituent is greater than the MCL, the
background value will be used.
The system used for the collection of
background data must meet the general
performance standards applied to such
systems. The data must be drawn from
the proper wells as outlined under
§ 2B4.97(g) and must be expressed in a
form necessary for the determination of
statistically significant increases under
§ 264.97{h).
d. Compliance Point Monitoring—
Under a compliance monitoring
program, the owner or operator must
sample ground water at the compliance
point throughout the compliance period
to determine whether a'concentration
limit is exceeded. Since a compliance
monitoring program is used when
hazardous constituents are hi the ground'
water, EPA believes that sampling must
be more frequent than it is in the
detection monitoring program. EPA has,
therefore, required that sampling should
occur at least quarterly. The data
collected must be expressed in a form
necessary for the determination of
statistically significant increases.
e. Ground Water Flow and
Direction—The owner or operator must
determine ground water flow rate and
direction in the uppermost aquifer each
•time samples are taken at the
compliance point. The rationale for this
requirement is explained in the
preamble to the detection monitoring
program.
f. Duty to Search for Additional
Hazardous Constituents—Since the
hazardous constituents in a regulated
unit will leak into ground water at
different rates, it can be expected that
the quality of leachate entering the
ground water will change over time.
Therefore, an assessment of leachate
quality at the time that the leading front
of the plume reaches the compliance
point will not necessarily reflect the
range of hazardous constituents that .
will appear at the compliance point
during the compliance period.
To account for this fact, owners or
operators are required to sample and
analyze the ground water to determine
whether additional hazardous «
constituents besides those identified in
the permit are appearing at the
compliance point. In order to make this
determination, the owner or operator
must analyze the ground water samples
for Appendix VIII constituents at least
annually. If this analysis reveals
constituents that had not been found in
the sampling used in the initial
determination of the list of hazardous
constituents, then the owner or operator
• must report his findings to the Regional
Administrator. It will then be up to the
Regional Administrator to reopen the
permit to add hazardous constituents
and appropriate concentration limits to
the facility permit. The cause for this
permit modification would be the new
information that the permittee has found
additional constituents in the ground
water. See § 122.15(a)(2).
g. Sampling andAnalaysis
Procedures—As in the detection
monitoring program, the owner or
operator must develop sampling and
analysis procedures and methods that
satisfy general performance standards
set forth in the regulations. As described
in the preamble discussion of the
detection monitoring program, those
standards are designed to-assure that
the program develops accurate and
reliable information on ground-water
quality at the facility.
h. Determining Statistical
Significance—Each time samples are
taken at the compliance point, the
owner or operator must determine
whether there is a statistically
significant increase at the compliance
point over the concentration limit for
each constituent. The procedures to be
used must meet the requirements hi
§ 264.97(h). As the preamble discussion
of that section indicates, different
criteria apply to statistical procedures
used in the compliance monitoring
program than apply in the detection
monitoring program. The statistical
analysis must be performed within a
reasonable period of time, as discussed
in the preamble to the detection
monitoring program.
i. Response to Finding of Statistical
Significance—IS the analysis indicates a
statistically significant increase over a
concentration limit, the owner or
operator must respond in a manner that
is analogous to what is required in the
detection monitoring program when a
statistically significant increase is
found. The owner or operator must
notify the Regional Administrator in
writing within seven days about what
. constituents have exceeded their
concentration limits. He must also begin
to prepare an application for a permit
modification to establish a corrective
action program for the facility, unless
one has already been established hi the
permit. Where the monitoring data
developed during the course of the
compliance monitoring program provide
the basis for knowing that concentration
limits are exceeded, the cause for this
permit modification would be the new
information of the increase over a
concentration limit. See § 122.15(a)(2).
The owner or operator has 90 days to
submit an application for a corrective
action program. EPA believes this is a
reasonable time frame, particularly hi
light of the fact that hi the normal course
of permitting he will have aleady •
submitted an engineering feasibility
study for corrective action as part of the
deliberations over his compliance
monitoring program.
The owner or operator will not have
submitted an engineering feasibility
study previously, however, if he had
attempted to make ACL demonstrations
for all Appendix VIII constituents found
at the compliance point or if the pnly
constituents found were NIPDWR
constituents which were not above
levels found in Table 1 under § 264.94.
(These two situations are discussed in
Section VH.D.ll.h. of this preamble.)
Where these two. situations arise, the *
regulations allow the owner or operator
180 days, rather than 90 days, to submit
the application for a corrective action
program.
The application for the corrective.
action program must provide sufficient
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information to allow the Regional
Administrator to make two findings.
First, the Regional Administrator must
be able to determine that the corrective
action proposed by the applicant will be
able to bring the facility back into
compliance with the ground-water
protection standard for the facility. This
will require a detailed description of
. how the applicant intends to remove or
treat the ground water. This information
should also describe any treatment
processes that the owner or operator
intends to use on ground water that is
removed from the aquifer. EPA is
particularly concerned that units used to
treat these waters meet any applicable
requirements of the hazardous waste
regulations.
Second, the application must describe
a ground-water monitoring program that
will be used to demonstrate the
effectiveness of the corrective action. In
many cases, this program will be
essentially the same as the compliance
monitoring program, because that
program was the one used to determine
that the ground-water protection
standard was exceeded. Some
modifications to the compliance
monitoring program may be appropriate,
however, to demonstrate the
effectiveness of corrective action. For
example, it may be accessary to
increase the frequency of monitoring or
to increase the number of wells at or
near the compliance point in those areas
where the plume appears to be
concentrated. In order to fully evaluate
the effectiveness of the corrective action
program, owners or operators may wish
to install additional monitoring wells
beyond the compliance point.
As in the detection monitoring
program, the owner or operator may file
a report along with, or in lieu of, the
permit modification application that
explains why the statistically significant
increase was caused by a source other
than a regulated unit or was the result of
error in sampling, analysis, or
evaluation. As in the detection
monitoring program, the owner or
operator takes the risk that he will
ultimately be-in violation of his permit if
he files the report in lieu of a permit -
application and the report fails to
demonstrate that the statistically
significant increase was not caused by
leachate from a regulated unit.
j. Duty to Modify Program—As in the
detection monitoring program, the
owner or operator has an ongoing
responsibility to make sure that the
compliance monitoring program
continues to comply with the
requirements of this section and to seek
permit modifications when needed. This
provisions is explained in more detail in
the preamble for the detection
monitoring program.
k. Duty to Ensure Compliance with
the Ground-water Protection
Standards—As described hi the
preamble for the detection monitoring
program, EPA believes that-the current
right to dispose of waste carriers with it
a correlative duty to control adverse
effects from that activity that appear in
the future. Therefore, today's regulations
indicate that the facility permit will
include a general condition obligating
the owner or operator to conduct future
monitoring and corrective action
measures as may be necessary to
achieve the ground-water protection
standard.
13. Corrective Action Program
(§264.100). If hazardous constituents
from a regulated unit exceed the ground-
water protection standard established
for a regulated unit, the owner or
operator must have a corrective action
program designed to bring the unit back
into compliance with the standard. A
corrective action program may stand on
its own in the permit or may be
specified in conjunction with a
compliance monitoring program. The
following describes the general elements
of a corrective action program.
a. Ground-water Protection
Standard—The goal of the corrective
action program is to bring the regulated
unit into compliance with the ground-
water protection standard. Accordingly,
the elements of the ground-water'
protection standard will be specified in
the permit including the list of
hazardous constituents, the
concentration limits for each
constituent, the compliance point, and
the compliance period.
b. Objective of Corrective Action—
While the general goal of the corrective
action program is to achieve compliance
with the ground-water protection
standard, today's regulations indicate
that this goal must be achieved by
removing the hazardous constituents or
treating them in place. This is consistent
with the general ground-water
protection strategy described earlier in
this preamble. EPA believes that the
appropriate way to protect ground water
is to prevent generation of hazardous
waste leachate, where feasible, and to
remove such leachate from the
subsurface environment when it
appears. EPA believes that hi situ
treatment of hazardous constituents is
analogous to removal because it also
provides long/term protection of human
health or the environment. While the
Agency recognizes that in situ treatment
is an emerging technology, with
chemical and biological techniques
applied in only limited circumstances to
date, in situ treatment may be an
effective corrective action strategy.
EPA does not believe that measures
which only prevent migration of
hazardous constituents in the ground
water for some period of time provide
an adequate level of protection. Such
approaches simply defer adverse
ground-water effects until some later
tune. Therefore, EPA does not believe
that measures which only modify the
gradient in the aquifer or create barriers
(e.g., slurry walls) provide a fully
adequate solution under the Subtitle C
program. Such measures can, however,
be combined with other measures, such
as counterpumping, to constitute an
adequate corrective action program.
The regulations do not describe in
great detail the specific measures that
must be taken for corrective action.
Corrective action measures are highly
dependent on site-specific factors.
Moreover, the state of the art of ground-
water cleanup will probably improve
substantially in the next few years. EPA
does not want to establish rigid
guidelines for connective action that
stifle innovation in this area. Therefore,
EPA will rely on the broad performance
standards established in § 264.100 to
evaluate specific corrective action
measures.
c. Timing of Corrective Action—EPA
recognizes that is will take time to
install corrective action measures and
that theTime needed will depend on
site-specific factors. Therefore, today's
regulations do not attempt to establish a
minimum time period for installing
corrective action measures. Instead, the
regulations simply provide that
corrective action must begin within a
reasonable period of time to be specified
in the permit by the Regional .
Administrator.
Some permits may combine the
elements of the compliance monitoring
program with the corrective action
program. In such a situation, the
appropriate response to the discovery of
a statistically significant increase is the
initiation of the approved corrective
action program rather than submission
of a permit modification application, hi
§ 264.100(c), today's regulations make
this point clear.
Corrective action must extend as long
as is necessary to achieve the ground-
water protection standard. EPA has not
specified a minimum time limit within
which the standard must be achieved.
EPA believes that any such limit should
be based on site-specific factors. EPA
anticipates that the owner or operator
may be switching back and forth
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Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32311
between the compliance monitoring and
corrective action mode during the course
of the compliance period as ground-
water quality fluctuates above and
below the concentration limits specified
in the permit. EPA should be able to
specify in the permit the conditions
under which these shifts in the mode of
the monitoring and response program
take place such that permit
modifications will not be necessary.
Corrective action must continue
through the compliance period to the
extent necessary to meet the ground-
water protection standard. If corrective
action is still needed at the end of the
compliance period, the owner or
operator must continue the' corrective
action until it has achieved the
standard. In defining what it means to
"achieve" the standard, EPA must
Indicate how long the owner or operator
must demonstrate through monitoring
data that the ground-water protection
standard has not been exceeded. In
order to provide an adequate margin of
safety, EPA has provided that the
ground-water protection standard must
not be exceeded for a period of three
consecutive years before the corrective
action program can be terminated.
d. Duty to Clean Up Contamination
Past the Compliance Point—At the time
that EPA considers a regulated unit at
an existing facility for permitting, it is
possible that a plume of contamination
will have migrated beyond the
compliance point. Clearly, such a plume
of contamination can present a risk of
adverse effects on human health and the
environment. Corrective action
measures designed to remove the plume
of contamination at the compliance
point will be at least partially successful
in controlling contamination beyond the
compliance point, but there is no
guarantee that such a plume will be
completely removed.
Some or all of the plume may be
within the facility property boundary
and thus within the areal jurisdiction of
Section 3004. Therefore, it is within
EPA's authority to require cleanup of
this contamination under the permit.
EPA has decided that it is reasonable
to require the owner or operator to take
corrective action measures to clean up a
plume (or portion of a plume] of
contamination that has migrated beyond
the compliance point but not beyond the
property boundary as a condition for
receiving a permit under today's
regulations. EPA's decision is based on
several considerations. First, the
existence of such a plume may
constitute a very real and present
danger to human health and the
environment. In fact, the proximity of
such a plume to the facility property
boundary indicates that it may present a
threat that is even more imminent than
that presented by the portion of the
plume that is just arriving at the
compliance point at the time of permit
consideration.
The fact that the plume can be linked
to wastes placed before these
regulations were issued does not negate
the fact that the existence of the plume
is a present condition that may cause
present and future harm to human
health and the environment if the plume
is allowed to continue to migrate. In
requiring the corrective action program
to address the plume beyond the
compliance point, EPA is not imposing
new requirements directly on past
practices, but rather is requiring the •
owner or operator to address a current
ground-water contamination problem
that may cause present and future
damage.
Second, this approach, in conjunction
with the decision about what constitutes
a regulated unit, provides fair notice to
the owner or operator about what his
responsibilities will be. The ground-
water protection standard in today's
regulations only applies to plumes of
contamination from regulated units (i.e.,
units that receive waste after the
effective date of today's regulations). If
the owner or operator can show that a
particular plume does not originate from
a regulated unit, the permit would not
require him to clean up such a plume.
(EPA could, of course, seek cleanup of
such plumes under other authorities,
including Section 7003 of RCRA.) Thus,
the regulations provide the owner or
operator with a reasonable time period
(i.e., the time between the issuance of
today's regulations and their effective
date) to define the units (and thus the
potential plumes) that will be subject to
the requirements of this Section.
Third, this approach links the scope of
the owner or operator's responsibility to
the scope of his control. The property
boundary defines the area within which
the owner or operator can feasibly
conduct corrective action measures such
as counter-pumping. In some situations,
it might also be possible for him to
obtain permission to enter neighboring
property to conduct corrective action to
reach a plume that has migrated off-site.
EPA has not required, however, that the
owner or operator attempt to clean up
the portion of a plume from a regulated
unit that has migrated beyond the
facility property boundary because there
is no guarantee that the owner or
operator could obtain such permission.
It is inappropriate, therefore, to impose
this as a general requirement for all
facilities. Plumes migrating beyond the
property boundary could, however, be
addressed under other authorities such
as CERCLA.
Accordingly, today's regulations
require that the owner or operator take
corrective action to clean up significant
plumes (or portions of plumes) of
contamination from regulated units that
are in the ground water between the
compliance point and the facility
property boundary at the time of permit
consideration. The regulations require
(in § 264.91(a)) that a corrective action
program is necessary if hazardous
constituents underjj 264.93 exceed
concentration limits under § 264.94 in
the ground water between the
compliance point and the downgradient
facility property boundary. The nature
of that corrective action program is
defined in § 264.100(c).
The Regional Administrator will
determine whether there is a need to
clean up a plume beyond the compliance
point using some of the same general
criteria used to determine whether the
groundwater protection standard is
exceeded. Thus, corrective action is
triggered if hazardous constituents
under § 264.93 from the regulated unit
exceed concentration limits under
§ 264.94. These same general criteria
will be used to define when the
corrective action is complete. Corrective
action measure may be terminated when
hazardous constituents no longer exceed
their respective concentration limits.
The corrective action program to
clean up a plume beyond the compliance
point must be initiated and completed
within a reasonable period of time,
considering the extent of contamination.
The permit will specify the measures
that the owner or operator will take to
satisfy this provision and will set forth a
schedule for when these activities must
be completed. These measures may be
carried out in conjunction with other
corrective action measures designed to
achieve compliance with the ground-
water protection standard. In
§ 264.100(d), today's regulations also
indicate that the monitoring program
needed to determine whether the
ground-water protection standard is
being achieved should also be capable
of determining whether § 264.100(e) is
being met where there is a plume from a
regulated unit beyond the compliance
point.
Today's regulations do not specify
that the facility property boundary, for
purposes of this provision, is the
boundary in existence at any particular
point in time. While EPA expects that, in
most cases, a facility's property
boundary will not change substantially
between the effective date of these
regulations and the date of permit
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32312 Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations
issuance, it is possible that an owner or
operator may sell a piece of the property
during that interim period. EPA is
concerned that today's regulations
should not create an incentive for an
owner or operator to sell pieces of the
facility property in order to avoid the
responsibility of cleaning up plumes (or
portions of plumes) of contamination
under this provision.
Accordingly, EPA seeks public
comment on how it can better define the
concept of the facility property
boundary to avoid such undesirable
results. Specifically, EPA requests
comment on whether the regulations
should require corrective action at
permitting for any plume (or portion of a
plume) that is within the facility
property boundary as it existed on the
effective date of these regulations, the
date that the permit application was
submitted, the date pf permit issuance,
or some other point in time. .
e. Corrective Action Monitoring—The
corrective action program must include
a monitoring program that is capable of
demonstrating that the corrective action
measures have been successful. The
monitoring program should be based on
the compliance monitoring program of
§ 264.99, since this is the program that is
designed to determine compliance with
the ground-water protection standard.
Where a compliance monitoring
program is established in the same
permit as the corrective action program,
or has been established in an earlier
permit, such a program should be
sufficient for the corrective action
monitoring. In some cases, however, it
may be necessary to have more frequent
monitoring or to have a different
configuration of wells during the
corrective action stage than during the
compliance monitoring stage. The
Regional Administrator will specify in
the facility permit the monitoring
program to be used. It mast be at least
as effective as the compliance
monitoring program in determining
whether the ground-water protection
standard is exceeded.
f. Reporting—Today's regulations
provide that the owner or operator must
report in writing semi-annually on the
effectiveness of the corrective action
program. EPA believes this requirement
is reasonable in light of the fact that the
permit may not specify when corrective
action must be completed. EPA believes
that an ongoing reporting requirement is
needed under these circumstances to
ensure that the owner or operator does
not simply continue to implement
measures that are not achieving the
ground-water protection standard.
E. Design and Operating Standards:
General Discussion (Part 264, Subparts
K,L,M,N)
1. Introduction. The Part 264
regulations promulgated today for
surface impoundments, piles, landfills,
and land treatment units used to treat,
store, or dispose of hazardous wastes
include a set of design and operating
standards in Subparts K-N in addition
to the ground-water protection
requirements in Subpart F. The design
and operating standards are of two
types. First is a set of standards that are
analogous and, in some cases, identical
to the interim statutes standards that
have already been established for these
units in 40 CFR Part 265. These
standards'generally require sound
operating practices., Second is a set of
new and generally more "rigorous
standards that emphasize
environmentally protective design and
construction features as well as
complementary operating and
maintenance practices. This preamble
discussion will focus on the latter set of
standards.
In developing the design and
operating standards, EPA has
considered all of its previous rulemaking
activities (see the discussion in section
II of this preamble) and the public
comments received as part of the
rulemaking process. While the
comments submitted to EPA were by no
means uniform, the following general
guidelines appear to reflect a broad
consensus and, in EPA's opinion, a
sound approach to writing the design
and operating standards (as well as the
Subpart F ground-water standards).
(1) The standards should reflect
clearly articulated regulatory goals.
(2) The standards should be
understandable by the regulated
community and the general public and
capable of being administered
efficiently by permit-issuing authorities,.
(3) The standards should require
different units to achieve consistent
environmental results, while providing
ample flexibility for site-specific factors
to be considered during the permitting
process. .
(4) The standards should be specific
enough to provide as much certainty as
possible, but, again, should be flexible
enough to allow environmental results
to be achieved hi the manner that is
most cost-effective for a specific
combination of wastes, unit, and
location and that does not stifle
innovation.
Accordingly, the major feature of the
Subparts K-N regulations promulgated
today is a set of design performance
standards. The standards clearly set
forth the environmental results to be
achieved [e.g., there must be no
migration of wastes from a landfill
during its active life) in terms of
generalized design requirements (e.g., a
landfill must have a liner to prevent the
migration of wastes from the landfill
during its active life).
The design performance requirement
sets forth general performance goals
(e.g., a liner must have appropriate
chemical properties and sufficient
strength and thickness to prevent
failure). However, EPA recognizes that
there are many ways to achieve such
goals. Therefore, detailed specifications
are not set forth in these rules but,
rather, are left to be determined during
the permitting process. EPA has
developed in the past and will continue
to develop technical manuals and
guidance documents to assist permit
applicants and permitting authorities in
evaluating the appropriateness of
various equipment, materials, and
designs in the context of specific units,
wastes and locations (see the discussion
in Section VII. E.8. below.)
The design and operating standards
generally apply to all surface
impoundments, waste piles, land
treatment units, and landfills, including
both new and existing units. However,.
portions of units on which wastes have
been placed prior to permit issuance are
exempt from certain design
requirements which would require
burdensome and possibly hazardous
retrofitting of the units. (See Section VII
E.6. below.) Furthermore, the regulations
provide a waiver from some design and
operating standards if the permit
applicant demonstrates that there will
never be any ground water or surface
water contamination if the waiver is
granted.
2. Major Features of the Design and
Operating Standards. The regulatory
goal adopted in the design and operating
standards is to minimize the formation
and migration of leachate to the
adjacent subsurface soil or ground
water or surface water. Thus, while the
ground water protection requirements
are intended to result in detection,
evaluation and, if necessary, correction
of ground water contamination, the
design and operating standards are
intended to minimize the possibility of
such contamination. Thus, these two
sets of standards are complementary.
One set is preventive; the other offers a
cure for situations in which the
preventive measures have not sufficed
to eliminate threats to human health and
the environment.
The regulatory goal of minimizing the
formation and migration of leachate is
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Federal Register / Vol. 47. No. 143 / Monday, July 26. 1982 / Rules and Regulations 32313
achieved differently with respect to
different units. For land treatment units,
the design and operating standards
require that hazardous constituents be
degraded, transformed, or immobilized
within the treatment zone. Due to the
unique features of land treatment units,
these units are discussed separately
below in Section V1I.H. of this preamble.
For surface impoundments, piles, and
landfills, any treatment that occurs is
usually not instantaneous and is often
incomplete. (An exception is
neutralization surface impoundments in
which treatment may be very quick and
complete. See the discussion above in
Section IV.B.2. of this preamble.)
Therefore, EPA has assumed in writing
the standards that some hazardous
constituents will be capable of migrating
from these units to adjacent subsurface
soil or ground water or surface water.
For these units, therefore, EPA has
developed regulations to minimize the
rate and volume of waste and leachate
migration. The regulations have the
following key features:
(1) Each impoundment, pile, or landfill
(except existing portions) must have a
liner that is designed and installed to
prevent any migration of wastes out of
the unit to the adjacent subsurface soil
or ground water or surface water
throughout the active life of the unit
(2) To minimize the potential for
release of hazardous constituents both
during the unit's active life and after the
unit is closed:
a. Piles and landfills must have
leachate collection and removal systems
(during their active lives and, after
closure, until leacate is no longer
detected), as well as measures to
prevent run-on of liquids into the unit.
. b. Surface impoundments must have
all wastes and waste residues either
removed or solidified at closure. Piles
must have all wastes and waste
residues removed at closure.
(3) To further minimize post-closure
leaching of hazardous constituents, any
unit in which hazardous constituents are
not entirely removed or decontaminated
at closure must have a final cover (cap)
placed on top to minimize the
percolation of liquids into the unit. The
cap must be maintained until the end of
the post-closure period.
3. Rationale Underlying the Design
and Operating Standards. In developing
standards for land disposal units, EPA
considered and rejected the option of
promulgating ground water standards in
conjunction with only those operating
requirements already in the Part 265
interim status standards. EPA expects
that today's Part 284 ground water
protection standards in Subpart F will,
in most cases, adequately protect human
health and the environment from ground
water contamination. They also address
surface water contamination threats to
, some degree, since land disposal units
that contaminate surface water often do
so by leaching waste constituents to
ground water, which then serves as a
conduit to adjacent surface water.
However, EPA concludes that sound
policy as well as the law support an
approach that supplements those
standards, where appropriate, with
design and operating standards that
minimize contamination threats by
controlling the source of contamination,
i.e., the unit itself.
First, at present, the technologies for
detecting and remedying ground-water
contamination, while fairly advanced,
remain subject to error. To detect
ground-water contamination, one must
carefully study the hydrogeologic setting
to properly place monitoring wells.
Because each setting is unique and often
is heterogeneous, occasional errors in
well placement are inevitable despite
the best efforts of owners and operators
to comply with Subpart F. Furthermore,
the technology of performing corrective
action is new. The Agency's and the
regulated community's experience in
conducting remediation activities
(beyond the feasibility study stage) is
fairly limited to date. Thus, while
ground-water monitoring and
remediation techniques are important
activities and thus are appropriately
required in Subpart F, design and
operating standards will significantly
increase confidence by reducing the
potential for ground-water
contamination.
Second, corrective action can be
expensive. It may involve pumping and
treating large volumes of contaminated
ground water for many years. In some
•cases, the owner or operator may lack
the financial resources to perform the
• required corrective action. Elsewhere in
this preamble {Section IV.B.1.) EPA
discusses and invites public comment on
options for financial responsibility
requirements to address this problem.
Any such requirements that might be
promulgated are likely to reduce, but
cannot eliminate entirely, the possibility
that owners or operators of land
disposal units will lack the finances
needed to perform necessary corrective
action. Furthermore, if ground-water
contamination occurs after the owner or
operator has completed all required
post-closure maintenance and
monitoring activities required in his
permit, substantial sums of money may
need to be drawn from the Fund
established in CERCLA or otherwise
expended by the public. Design and
operating practices can reduce this
problem by minimizing the amount and
rate of leachate migration to the
subsurface soil and ground water.
For the above reasons, EPA believes
that design and operating standards are
necessary to protect human health and
the environment. EPA emphasizes,
however, that despite the promulgation
of design and operating standards, the
Subpart F standards are also necessary
to fully protect human health and the
environment. Design and operating
features, like the ground-water
monitoring and response program, are
effective but not fail-safe. Most land
disposal units, however well designed,
will eventually leak after closure to
some extent. Furthermore, many existing
units lack adequate liners and may
already be leaking. When leaking
occurs, EPA expects that compliance
with the Subpart F requirements will, in
most cases, result hi detection of
contamination that may threaten human
health and the environment and hi
remediation of the threats. In addition,
EPA anticipates that the technologies
needed to implement Subpart F will
continue to advance, just as they have
rapidly improved in recent years. Thus,
the standards promulgated today
provide a two-part "prevention and
cure" system, each part adding to
confidence in the system as a whole.
This combined approach, including
both design and operating standards
and monitoring and corrective action
requirements, comports with the
language and intent of Section 3004 of
RCRA. This Section requires EPA to
promulgate regulations establishing such
performance standards as may be
necessary to protect human health and
the environment, and direct that these
standards include requirements
respecting: '
(1) Operating methods, techniques and
practices as may be satisfactory to the
EPA Administrator;
(2) Reporting, monitoring, and
inspection;
(3) Location, design, and construction
of facilities; and
(4) Contingency plans for effective ;
action to minimize unanticipated x
damage from hazardous waste
treatment, storage, or disposal.
EPA believes that the two-pronged
approach promulgated today
successfully addresses the various
factors listed by Section 3004. We
further believe that the regulatory
approach will help a concerned public
gain confidence that land disposal units
permitted pursuant to the standards
promulgated today will protect human
health and the environment.
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32314 Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations
4. Rationale for Requiring Liners that
Prevent Migration of Wastes^ During the
Active Life of the Unit.
During our development of the
. requirement that each impoundment,
pile, and landfill have a liner designed
to "prevent" migration of wastes out of
the unit during the active life of the unit,
EPA considered requiring instead that
the liner merely "minimize" migration.
This distinction has significant practical
consequences with respect to the types
of materials that may be used for liners.
For example, while a clay liner
minimizes migrations, it does not
completely prevent migration, since
liquids will slowly enter the pores of the
clay, move through it, and ultimately
flow out of it.
EPA decided to require a design to
prevent migration during the unit's
active life; This standard, together with
requirements to minimize post-closure
migration, represent the best available
technology to achieve the goal of
minimizing the rate and volume of
leachate migration for all time. Merely
designing to minimize migration during
.the unit's active life would result in an
increased risk of ground-water
contamination both during the unit's
active life and after closure.
When a synthetic membrane liner, for
example, is installed in a landfill, the
leachate collection and removal system
• installed above the liner (as required by
today's regulations for landfills and
piles) can achieve virtually a 100%
removal efficiency. In contrast, if a clay
liner is used, some leachate will seep
into the liner rather than be removed
through the drainage layer. This
leachate will remain in the soil after
closure and will likely migrate to the
ground water at some future time. .
Prevention, rather than minimization,
of leachate migration similarly produces
better environmental results in the case
of surface impoundments used to
dispose of hazardous wastes. As
discussed in Section VII.F. of this
preamble, an impoundment is not
required to have a leachate collection
system, and thus no leachate is removed
during its active life. One of the
regulatory options for closing a surface
impoundment is to solidify remaining
wastes and cover the impoundment with
a low permeability cap (i.e., to close the
unit in the same manner as a landfill).
These measures will likely nearly
eliminate further migration of hazardous
constituents from the impoundment for
the near term and will minimize
migration into the distant future. If the
liner has prevented migration
throughout the active life of the
impoundment, then all wastes and
leachate will still be above the liner at
closure where they can be dealt with
relatively easily. But if the leachate has
migrated into a soil-based (e.g., clay)
liner prior to closure, future migration of
these wastes is more likely. A liner that
prevents rather than minimizes leachate
migration provides added assurance
that environmental contamination will
not occur.
The above rationale does not apply
fully to a pile or to a surface
impoundment from which all .wastes and
waste residues will be removed at
closure (i.e., "storage" piles or surface
impoundments; some of these may treat
the wastes as well as store them). Since
all contaminated liners will be removed
or decontaminated at closure, it is
environmentally acceptable for leachate
to enter into such liners during the pile's
or impoundment's active life. For
example, suppose that a five-foot clay
liner (but not the underlying soils)
received some leachate during the active
life, after which the entire contaminated
liner system is removed. In that case, the
standard of preventing migration out of
the unit during its active life would have
been met, and the environmental goal of
long-term minimization of leachate
migration would also have been
achieved.
In accordance with the rationale
explained above, the regulation requires
that landfills, surface impoundments,
and piles have liners designed to
prevent migration to.the.adjacent
subsurface soil or ground or surface
water during their active lives. First, it
further provides that in the case of a
storage unit (i.e., a pile or a surface
impoundment from which wastes and
waste residues will be removed or
decontaminated at closure), the liner
may be constructed of materials that.
may allow wastes to migrate into the
liner (but not into the adjacent
subsurface soil or ground water or
surface water) during the active life of
the unit, provided that the liner is
removed at closure. Thus, in appropriate
situations, clay or admixed materials
may be acceptable liner materials.
Second, in the cases of landfills and of
surface impoundments used to dispose
of hazardous waste, the regulations .
provide that the liner must be
constructed of materials that prevent
wastes from passing into the liner.
Synthetic liners are the only commonly-
used materials of which EPA is aware
that would meet this standard.
EPA recognizes that even a thin, 30-
mil synthetic liner can sorb a de minimi's
quantity of wastes into its structure and
allow some vapor to pass through. EPA
of course, does not interpret such de
minimi's sorption or passage to violate
the requirement that disposal units not
allow wastes to pass into the liner.
However, clay liners, even if relatively
"tight," .would violate this requirement.
It should be noted that the standard of
designing to prevent migration is a
design performance standard. It requires
that liners be "designed constructed and
installed" to prevent migration during
the unit's active life. If the permittee
complies with this requirement and the
liner fails subsequent to installation
despite such compliance, the permittee
will not be in violation of the permit as
it relates to this standard.
EPA is not requiring that' liners
prevent migration of wastes after the
unit is closed rathert the regulations
require that post-closure migration of
liquids be "minimized". Absolute
prevention of migration forever or for
very long times is beyond the current
technical state of the art. Thus, at some
time some migration will probably
occur. Thus, instead of relying on
bottom liners to provide post-closure
protection of ground water, EPA is
relying principally on final cover (caps),
as discussed below.
5. Closure of Land Disposal Units. A
cap is a top liner, placed on the unit at
' closure. Caps, like bottom liners cannot
be expected to last forever. However, a
properly designed and maintained cap
can prevent the entry of liquids into the
closed unit, and thus the formation and
migration of leachate', for many years
and can minimize it thereafter in the
absence of damage. Therefore, EPA
requires that the cap be designed and
constructed to provide long-term
minimization of the movement of liquids
into the closed unit. Because clays will
generally last longer than synthetic
materials, clay caps rather than
synthetic caps should usually be the
materials chosen to provide long-term
minimization.
To avoid the build-up of liquids in the
closed landfill or impoundment (the
"bathtub effect") EPA requires that the
cap be as impermeable as the bottom
liner. This will require the installation of
a synthetic membrane cap whenever the
bottom liner is synthetic. Thus, many
units will be required to have two-layer
caps consisting of a synthetic layer to
avoid the bathtub effect and provide
short-term prevention of infiltration, and
a clay layer to provide long-term
minimization of precipitation infiltration
and leachate generation. EPA believes
that this will provide maximum short-
term and long-term protection of human
health and the environment.
EPA recognizes the need for certainty
and uniformity in implementing the
regulatory concept of "long-term
minimization" of liquids migration.
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Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules, and Regulations 32315
Therefore, EPA is currently developing
numerical limits for liquid migration.
The technical approach being used is
discussed in EPA's Guidance Document
for Landfill Design—Liner Systems and
Final Cover (see Section 9 of this
preamble discussion below). EPA hopes
to propose these numerical limits within
six months.
6. Existing Portions. The design and
operating standards contain a limited
exemption for "existing portions"
(defined today in § 260.10). An existing
portion is any area on which waste has
been or is being placed at the time of
permit issuance. This may be one cell or
trench of a landfill, an impoundment, or
a section of a pile. Existing portions are
exempt from the requirements to install
liners and leachate collection systems.
However, they remain subject to the
remainder of the design and operating
requirements (e.g., placing a cover over
wastes remaining at closure) as well as
the ground-water protection
requirements of Subpart F.
Installing liners and leachate
collection systems at existing portions
would create severe difficulties for
many facilities. Owner or operators
would have to remove wastes before
installing liners and leachate collection
systems. This presents several types of
problems. * ••
Some facilities may lack space in
which to store the wastes temporarily
while retrofitting. Even worse, in some
cases, the ongoing waste disposal
operation is integral to production
operations. For example, some facilities
use large volumes of water as part of
their manufacturing processes and use
surface impoundments to treat
wastewater or to store or dispose of
sludge. Unless additional space is
available to construct a new
impoundment to receive the wastes
being removed from the existing
impoundment, it may be impossible to
retrofit the old impoundment without
shutting down production facilities.
A second problem is safety. Exhuming
wastes from a landfill, for example, may
create significant hazards for workers
and others who are nearby and may be
exposed to the wastes.
The Congress recognized the problem
of retrofitting existing units when it
amended Section 3004 of RCRA in 1980
to add the following provision:
In establishing such standards the
Administrator shall, where appropriate,
distinguish in such standards between
requirements appropriate for new. facilities
and for facilities in existence on the date of
promulgation of such regulations.
This provision does not absolutely
require EPA to have separate standards
for new and existing units but does
indicate that EPA must consider
whether distinctions should be drawn.
The legislative history of this provision
specifically indicates that the Congress
was concerned about burdensome
retrofitting problems that existing 'units
might have in complying with location
and design requirements that EPA might
appropriately specify for new portions.
H.R. Rep. No. 96-1444 (1980).
The limited exemption for existing
portions in these rules implements the
legislative intent. The exemption applies
only to those requirements which would
require dangerous or impracticable
retrofitting at existing units (i.e., bottom
liners and leachate collection and
removal systems). Moreover, it applies
only to existing portions of existing
units. New portions of existing units
(e.g., lateral extensions of existing
landfills such as new cells or trenches)
are not entitled to the exemption since
they would not experience the
retrofitting problems pertaining to
existing portions.
EPA is concerned that this exemption
may be too broad in some situations and
too narrow in others. It may be that
there are some situations where waste
can be removed with minimal risk and
at a reasonable cost even at existing
portions, so that the policy concern
behind the exemption is inapplicable.
For example, it may be quite simple to
remove a small waste pile or a small or
partially filled landfill trench and place
a liner underneath it. Similarly, it may
be feasible to retrofit an existing surface
impoundment that is used infrequently
(e.g., to hold overflows) or that is not
essential to daily production needs.
Also, EPA realizes that there may be
little environmental gain in requiring
owners and operators of units~very near
the end of their operating life to comply
with the liner requirements. For
example, if 95 percent of the capacity of
a landfill is consumed at the time of
permitting, there may be little benefit to
requiring a liner system undeivthe
remaining 5 percent. EPA does not
currently have enough information to
distinguish among various types and
sizes of existing portions to fashion a
narrower exemption. EPA requests
public comment about the scope of the
exemption and welcomes suggestions
about how this exemption can be better
crafted to address those situations
where substantial retrofitting would not
be necessary or could be accomplished
without causing environmental harm or
excessive burdens or, alternately, where
upgrading practices at existing facilities
may provide de minimi's additional
protection.
7. Waiver from the Liner and the
Leachate Collection and Removal
Requirements. If an owner or operator
of an impoundment, pile, or landfill can
demonstrate to the Regional
Administrator that the use of alternate
design and operating practices, in
combination with location and waste
characteristics, will prevent the
migration of any hazardous constituents
into the ground water or surfac'e water
forever, then he may obtain an
exemption from the liner and the
leachate collection and removal
requirements. The basis for the
exemption is that such requirements
become superfluous if no potential
. threat to ground water or surface water
will occur at any time.
An example of a situation for which
this exemption may be appropriate is
one where: (1) A large unsaturated zone
below the unit is composed of materials
that are capable of attenuating any
hazardous constituents in the leachate
before it reaches ground water or
surface water (e.g., attenuating
hazardous constituents through ion
exchange); (2) the unit is located in an
arid area in which precipitation does not
recharge ground water; and (3) the unit
handles only a small quantity of wastes.
Given an appropriate combination of
such factors, together with proper design
and operating practices, (e.g., the use of
a thick liner possessing substantial
attenuative capacity), it may well be
that the owner or operator could
demonstrate'that no hazardous
constituents could ever migrate as far as
the ground water or surface water.
Although the requirements for liners
and leachate collection and removal
systems apply only during the life of the
unit, the waiver of these requirements is
based on a demonstration that migration
to ground or surface water will not occur
at any future time. These requirements,
while operative during the unit's active
life, are designed to ensure that the post-
closure migration of liquids is minimized
to the extent that ground- or surface-
water contamination will never occur.
Therefore, a waiver of these
requirements must logically be based on
a showing that the equivalent
environmental result will be achieved,
i.e., that ground- or surface-water
contamination will never occur.
EPA also considered granting a
waiver from the closure provisions in
situations as described above, where it
is demonstrated that hazardous
constituents cannot reach the ground
water. However, the closure provisions
have other benefits in addition to
ground-water protection, including: (a)
Prevention of the "bathtub" effect (i.e..
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32316 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
filling with leachate and overflowing);
(b) protection of surface water from run-
off; and (c) discouragement of direct
access to the wastes. The Agency has,
therefore, decided not to waive the
closure requirements where ground-
water contamination is not possible.
Another waiver from the design and
operating requirements considered by
the Agency involved facilities located
over aquifers which are not underground
sources of drinking water (exempted
aquifers under the Safe Drinking Water
Act—see 40 CFR 122.35 and Section
VII.D.5.C. of this preamble. The
argument can be made that if an aquifer
or a portion of an aquifer is, for some
reason, not usable as a drinking water
supply, then there is little reason to
install devices (e.g., liners} to protect it.
The Agency is concerned, however, that
exempted aquifers or portions of
aquifers under the Safe Drinking Water
Act may be only temporarily exempted
in some cases, and that they may flow
into nonexempted portions, into surface
water bodies, or into nonexempted
interconnected aquifers (e.g., underlying
aquifers). The Agency has not had time,
however, to fully evaluate to what
extent, if any, such an exemption may
be protective and has, therefore, not
included it in this promulgation. Existing
facilities over exempted aquifers^or
exempted portions of aquifers will,
however, be considered low priority for
permitting pending review of this issue.
The Agency solicits comments on
these and other waivers from the design
and operating requirements which might
provide adequate protection.
8. Special Provisions for Double-lined
Units: Exemption from the Ground
Water Protection Requirements of
Subpart F. The design and operating
standards contain special sets of
standards for surface impoundments,
piles, and landfills with double liners
and leak detection systems. Compliance
with these standards is not mandatory.
However, if an owner or operator
voluntarily applies for and is issued a
permit to comply with these special
standards (in addition to the other
standards generally applicable to these
•units), then he is not subject to the
ground water protection regulations
contained in Subpart F (except under
special circumstances discussed below).
These special standards require that
there be two liners underlying the unit
and a leak detection system between the
two liners. The two liners must be
designed and constructed in a manner
that prevents the migration of liquids
into or out of the space between the
liners. This can be achieved by lapping
or sealing the edges of two synthetic
membrane liners at the surface. A leak
detection system is any system (e.g., a
drain and pump, or appropriate
instrumentation) that enables the owner
or operator to detect whether any liquid
has entered into the space between the
liners. If liquids are detected in the leak
detection system, it may be concluded
that the liquids resulted from a leak in
one of the liners. Some water may enter
the space between the liners at the time
of installation. This would occur only
once, at the time of until start-up. A
prudent owner or operator would
remove this water at that time, since the
presence of water in the leak detection
system at a later time will be assumed
to indicate that one of the liners is
leaking.
If liquid leaks into the leak detection
system, indicating a leak in at least one
of the two liners, the owner or operator
must notify the Regional Administrator
within seven days after detecting the
leak. He then has two options. One is to
repair or replace the liner and obtain a
certification from a qualified engineer
that the leak has been stopped. This
must be done within a period of time
specified in the permit. The period of
time should be set to ensure expeditious
repair or replacement but, since one
liner is still intact, can be set reasonably
to cause minimal disruption of
production processes that are dependent
on the unit's continued operation.
For many units, repair or replacement
is impractical, just as retrofitting an
existing portion to install a liner is
impractical, as discussed in the
preceding section of this preamble. The
second option is to forfeit the exemption
from the Subpart F ground-water
protection standards and to begin to
comply with a detection monitoring
program, under § 264.98, to ensure that
any migration of leachate to ground
water will be detected. However, this
option is available only if such a
program is already incorporated in the .
permit. Otherwise, after detection of the
leak, ground-water contamination could
ensue while proceedings are still being
conducted to modify the permit to
establish a detection monitoring
program.
Ordinarily, a permit written for a
double-lined unit seeking an exemption
from Subpart F would not contain any
detection monitoring requirements. In
that case, if an owner or operator
discovers a leak in the leak detection
system, he will have to repair or replace
the leaking liner or else be in violation
of the permit. Therefore, EPA
recommends that those who anticipate
retrofitting problems in attempting to
repair or replace leaking liners should
request that detection monitoring
programs be established in their permits
in accordance with the requirements of
§ 264.98, as contingent requirements.
Such requirements would be
automatically triggered hi the event of a
leak, but would not have to be complied
with until such a leak occurred. The
permit would specify well placement,
detection parameters to be.monitored, •
and the frequency of monitoring. If a
leak occurred, the permittee would then
install the wells- and begin monitoring in
accordance with a schedule set forth in
the permit.
The regulations require that the liners
. must meet the requirements normally
applicable to liners hi single liner •
systems: they must prevent the
migration of wastes to subsurface soil or
to ground water or surface water during
the life of the unit. This is consistent
with the policy objectives outlined in
Sections VII.E.1. and VH.E.2. above.
Furthermore, it should be noted that, as
a practical matter, owners or operators
seeking to use this exemption from
Subpart F will insure that both liners
prevent migration. Otherwise, leakage
into the leak detection system will
occur, resulting in the need to repair or
replace the leaking liner or begin
groundwater monitoring, as discussed
above. . .
The leachate collection and removal
requirements for single-lined piles and
landfills also apply to double-lined
systems. The leachate collection and
removal system must be placed on top
of the upper liner, and must be
maintained and operated to collect and
remove the leachate. This implements
the policy objective of reducing the
amount of leachate that can leach in the
future to the subsurface soil or ground
water or surface water.
Finally, to be eligible for the
exemption from the Subpart F ground-
water protection requirements, a double-
lined unit (including the liners and leak
detection system) must be placed
entirely above the seasonal high water
table. Placement of units in the ground
water poses special problems
associated, among other things, with
external pressures applied by the
saturated earth. The Agency is
concerned that these pressures can
cause disruption (collapse or caving in)
of the liner system and disruption of the
leak detection system to the point that it
may not work. While collapse of the
liner system can occur when a single
liner unit is located in the ground water,
the ground-water monitoring system can
be expected to function to detect
contamination. Since ground-water
monitoring is waived for double-lined
facilities, it is imperative that the leak
detection system function. The Agency
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32317
is not confident at this time that it can
specify design safeguards that will
ensure continued function when the unit
is placed in the saturated zone (i.e., in
the ground water),
9. Specification of Design and
Operating Requirements in Permits. The
design and operating standards in these
rales are written as performance
standards. The purpose in using the
performance-standard approach is to
address the legitimate concern of many
commenters that the regulatory
standards provide flexibility in meeting
the performance goals established by
EPA. This allows the use of cost-
effective, site-specific designs,
equipment, and operating practices, and
encourages innovation.
In promulgating performance
standards, EPA is relying on the
issuance of permits to clearly establish
the specific designs and operating
requirements which each individual
owner or operator must comply with. It
is thus the permit-issuing authority's
task to translate general standards into
specific detailed obligations. The permit
writer will do so in accordance with the
procedural requirements of 40 CFR Part
124, which provide for the issuance of a
draft permit, documentation explaining
the basis for the conditions in the draft
permit, a public comment period a
public hearing if requested, the issuance
of a final permit, and a right of
administrative appeal.
The regulations for each type of land
disposal unit contain a provision that
requires that the Regional Administrator
will specify in the permit all design and
operating practices that are necessary to
insure that the general design and
operating standards are complied with.
For example, the landfill standards
require that leachate depth over the
liner not exceed one foot. This
requirement may be complied with by
using a combination of design features
(e.g., slope and permeability of the
drainage layer above the liner) and
operating practices (e.g., the amount of
bulk liquids placed in the landfill) based
upon assumptions concerning natural
conditions {e.g., expected precipitation
rates). The permit writer will not only
approve the design features but will also
specify the operating practices in the
permit. The documentation prepared to
support the permit issuance (a statement
of basis under § 124.7 or a fact sheet
under § 124.8) would indicate the
assumptions concerning natural
conditions that were used in deriving
appropriate design and operating
conditions. Thus, the design features
and operating practices incorporated in
the permit will be those used by the
owner or operator to demonstrate
compliance with the performance
standard (i.e., the one-foot depth limit).
10. Technical Resource Documents
and Guidance. EPA recognizes the need
for guidance to assist applicants in
understanding what specific designs and
operating practices would be considered
acceptable to EPA and to assist permit
writers in establishing specific permit
conditions. Accordingly, EPA has
developed two groups of documents.
The first group is a series of eight
detailed technical resource documents
dealing with various technical issues.
These documents discuss (a) facility
design and operating technologies, and
(b) methods for evaluating the
performance of designs, but are not
necessarily correlated with the
regulations. These documents, in their
current draft form (EPA expects to
revise them by early 1983), are available
from the National Technical Information
Service, U.S. Department of Commerce,
Springfield, Virginia 22161. The
documents are as follows:
(1) Evaluating Cover Systems for Solid
and Hazardous Waste (EPA Publication
No. SW-867, NTIS Publication No. PB-
81-166-340).
(2) Hydrologic Simulation on Solid
Waste Disposal Sites (EPA Publication
No. SW-868, NTIS Publication No. PB-
81-166-332).
(3) Landfill and Surface Impoundment
Performance Evaluation (EPA
Publication No. SW-869, NTIS
Publication No. PB-81-166-357).
(4) Lining of Waste Impoundment and
Diposal Facilities (EPA Publication No.
SW-870, NTIS Publication No. PB-81-
166-365).
(5) Management of Hazardous Waste
Leachate (EPA Publication No. SW-871,
NTIS Publication No. PB-81-189-359).
(6) Guide to the Disposal of
Chemically Stabilized and Solidified
Waste (EPA Publication No. SW-872,
NTIS Publication No. PB-8i-181-505).
(7) Closure of Hazardous Waste
Surface Impoundments (EPA Publication
No. SW-873, NTIS Publication No. PB-
81-166-894).
(8) Hazardous Waste Land Treatment
(EPA Publication No. SW-874, NTIS
Publication No. PB-81-182-107).
The second group is a set of four
guidance documents correlating to the
most important performance
requirements (e.g., liners and caps)
contained in the design and operating
standards promulgated today. These
documents contain design specifications
which the Agency believes will
generally lead to compliance with the
performance requirements. The purpose
of these documents is to reduce the
uncertainty associated with, translating
the general performance standards into
specific and operating requirements for
particular units. Thus, if an applicant
follows one of the example
specifications set forth in the guidance,
he will generally receive a draft permit
from EPA. (Of course, the final permit
may contain different provisions from
the draft permit, based upon an
evaluation of comments received on.the
draft permit.)
At present, the draft guidance
documents contain only a few design
examples. The examples will be
expanded over time as EPA gains
experience implementing the
regulations. The current drafts are
available at U.S. Environmental
Protection Agency, Central Library,
Room 2404, 401 M Street, S.W.,
Washington, D.C. 20460 and in EPA's
Regional office* libraries. The documents
are:
(1) Surface Impoundments—Liner
Systems, Final Cover, and Freeboard
Control;
(2) Waste Pile Design—Liner Systems;
(3) Land Treatment Units;
(4) Landfill Design—Liner Systems
and Final Cover. These documents will
soon be available from the National
Technical Information Service. EPA will
announce their availability in the
Federal Register.
F. Surface Impoundments (Part 264,
SubpartK)
Subpart K contains the design and
operating standards for surface
impoundments used to treat, store or
dispose of hazardous waste. The basic
requirements are: (1) A liner to prevent
migration of wastes out of the
impoundment into the subsurface soil
and ground water or surface water
throughout the impoundment's active
life (with an exemption for existing
portions); (2) prevention of overtopping
the sides of the impoundment; (3)
assurance of structural integrity; and
(4)(a) removal or decontamination of
waste residues and contaminated soils
and equipment at closure, or (b)
solidification of remaining wastes,
capping the wastes and conducting post-
closure care. An exemption from the
ground-water protection requirements of
Subpart F is provided for impoundments
that have double liners and leak
detection systems. A variance from the
liner requirement is provided to any
impoundment if the owner or operator
demonstrates to the Regional
Administrator that hazardous .
constituents will never migrate from the
impoundment into ground water or
surface water.
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,32318 Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations
Many of these features of the Subpart
K regulations are discussed above in
Section VILE, of this preamble. The
remainder are discussed below.
1. Relationship to Previously
Promulgated or Proposed Rules for
Permitting Surface Impoundments.
These rules supersede two previous
regulations covering surface
impoundments. On January 12,1981,
EPA promulgated Subpart K standards
applicable only to storage surface
impoundments (impoundments that are
designed to prevent migration of wastes
out of the impoundments during active
life and that have all wastes and waste
residues removed at closure). These
rules required surface impoundments to
install double liners and leachate
detection, collection, and removal
systems and to remove all wastes at
closure (40 CFR Part 264 Subpart K, 46
FR 2802). No ground-water monitoring or
remediation requirements were
established for these impoundments.
The regulations did not cover surface
impoundments used to dispose of
hazardous wastes.
Many members of the regulated
community objected to the January 12,
1981 regulations as inappropriate for
existing impoundments because
extensive retrofittirigwould be required
for many existing sites. They argued that
such retrofitting would require costly
reconstruction and could in some cases
result in shutting down plants, resulting
in severe economic disruption. (See the
•discussion of retrofitting in Section
VII.E.6.) On October 20,1981, EPA
proposed to suspend the effective date
of these rules, as applied to existing
impoundments pending a re-
examination of the rules'
appropriateness for existing
impoundments (46 FR 51407). Pending
this reexamination, EPA announced that
it would not begin processing permit
applications for existing surface
impoundments, although EPA
announced willingness to process
voluntarily submitted applications.
Subpart K, as promulgated on January
12,1981, is entirely superseded by the
new Subpart K promulgated today.
Today's regulations have a broader
scope; they cover both storage and
disposal surface impoundments.
Furthermore, the October 20,1981
proposal is withdrawn. Similarly, the
permitting policy announced in the
proposal is now withdrawn, and,
consistent with its overall permit
priorities, EPA will begin requesting the
submission of Part B applications from
the types of storage surface
impoundments described in the January
12,1981 standards. In addition, on the
effective date of today's regulations,
EPA will begin calling in Part B permit
applications for all types of surface
impoundments covered by these
standards.
Although the January 12,1981,
regulations have been superseded, many
ideas in those regulations are
incorporated in the new standards. For
example, today's exemption of double-
lined impoundments, piles and landfills
from the ground-water protection
standard is consistent with a similar
approach in the January 12 regulations.
Similarly, as was true under the January
12 regulations, post-closure .care and
monitoring are not required if all waste
is removed at closure. Some of today's
other requirements (e.g., overtopping
controls and inspection) are also similar
to those contained in the January 12
regulations.
However, today's regulations apply
more broadly and are more flexible than
the January 12 regulations. They cover
disposal impoundments as well as
storage impoundments. Even for
impoundments used for storage (or
storage and treatment only), more
control options are now offered.
Whereas the January 12 regulations
required double liners, the new
standards allow a single liner coupled
with ground-water monitoring as an
alternative option. And whereas the
January 12 regulations required that all
hazardous wastes and hazardous waste
constituents be removed from the
• impoundment at closure, the new
standards allow as additional options,
the decontamination or solidification
and stabilization or wastes left in place,
covering by a cap, and post-closure
monitoring and maintenance.
A second set of regulations
superseded by today's standards are the
Part 267 regulations for new surface
impoundments and other land disposal
units. See the discussion above in
Section II.C. of this preamble.
It should also be noted that the new
standards do not incorporate the
"seepage facilities" concept for which
standards were proposed (but never
promulgated) on February 5,1981 (46 FR
11216). Seepage facilities are lagoons
that are designed intentionally to leak.
. Depending on design, they may also be
considered as underground injection
units or land treatment units. In any
case, EPA has concluded that land
disposal facilities should be designed
not to leak at all during their active
lives, except in rare cases (see
§ 264.'221(b)). Therefore, most new
impoundments must be lined in
accordance with these standards, and
land treatment facilities must prevent
release of hazardous constituents by
treating them within the treatment zone.
Thus, new seepage facilities (other than
existing portions that comply with the
Subpart F ground-water protection
requirements and other applicable
requirements) may not be permitted
under these regulations. EPA invites
public comment on its decision not to
authorize seepage facilities.
2. Absence of Leachate Collection and
Removal Requirements for Surface
Impoundments. Unlike piles and
landfills, surface impoundments are not
required to have leachate collection and
removal systems above the liners.
Surface impoundments are needed in
many industrial facilities to properly
treat wastewaters and thereby minimize
surface water pollution. These
impoundments are often designed to
handle large flows, in many cases
exceeding one million gallons per day.
Often, rather long retention times are
required to ensure appropriate treatment
of the wastewaters. Since a surface
impoundment is intentionally designed
to hold liquid wastes, often in extremely
large volumes, it makes little sense to
require a virtual drain at the bottom.
The liquid removed from the drainage
layer would itself need to be managed,
very likely in a second impoundment.
No environmental purpose would be
served by such a liquids management
program.
The key liquids management goals, for
impoundments as well as piles and
landfills, are to prevent migration of
waste during the unit's operating life
and to minimize migration afterwards.
The former goal is achieved by the liner.
The second goal is best achieved, in the
case of a surf ace'impoundment, by
dewatering, solidifying, or removing the
contents, of the impoundment at closure.
The regulatory approach for surface
impoundments achieves environmental
results analogous to those achieved for
piles and landfills. In most cases, these
units must be designed, constructed, and
installed so that no migration occurs
during the active life of the facility. In ,
the case of piles and landfills, which
contain relatively small amounts of
liquids, leachate collection and removal
is practicable and results in a reduced
volume of hazardous constituents
available for post-closure migration. In
the case of surface impoundments, for
which the collection and removal of
relatively large amounts of liquids is not
practicable, removal or solidification of
liquid wastes at closure likewise results
in a reduced volume of hazardous
constituents available for post-closure
migration.
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3. Liner Requirements (Section
264.221'(a)). The regulations for liners in
surface impoundments (as well as
landfills and piles) include several
subsidiary performance standards
intended to assure that each liner will
meet the performance goal of preventing
the migration of wastes to adjacent
subsurface soil or ground water or
surface water at any time during the
Impoundment's active life. These
standards consist of general common-
sense engineering goals, leaving the
details to be specified on a case-by-case
basis in permits.
First, the liner must be constructed of
materials that will resist degradation.
Synthetic liners can be degraded by
exposure to imcompatible wastes or
leachate and in some cases by excessive
exposure to sunlight. Clay liners can
develop highly increased permeabilities
(sometimes by several orders of
magnitude) when exposed to certain
types of chemicals. The regulation thus
requires appropriate materials to be
used to avoid such problems. When the
permit is issued, the appropriateness of
the liner material will be considered in
the specific context of the wastes to be
placed in the impoundment.
Second, liner materials must be of
sufficient strength and thickness to
prevent failure due to physical stresses
(e.g., earth-moving equipment, dredging
equipment, and the weight of large
volumes of liquid wastes). While this
requirement applies to all liners, it is
especially crucial for synthetic liners,
which can rupture if they are
mishandled or are too thin. Most
synthetic liners need to be at least 30
mils (thousandths of an inch) thick to
assure that this requirement is complied
with.
Third, the foundation underneath the
liner must be capable of supporting the
liner and resisting pressure gradients. If
the support system settles, compresses,
or uplifts, the liner may rupture or crack.
Finally, the liner must cover all
surrounding earth likely to be in contact
with the waste or leachate. This assures
that liners will be placed not only
underneath the wastes but also on the
sides of the wastes. Thus, lateral as well
as vertical migration will be prevented.
4. Control of Overtopping (Section
264.221(c)). Section 264.221 requires that
a surface impoundment be designed,
constructed, maintained and operated to
prevent overtopping (the flow of liquids
over the top and out of the
impoundment) resulting from normal or
abnormal operations; overfilling, wind
and wave action; rainfall; run-on;
malfunctions of level controllers, alarms
and other equipment; and human error.
This language reflects the variety of
potential causes of overtopping.
Constructing dikes to provide a large
amount of freeboard above expected
levels in the impoundment is one means
of controlling overtopping. Operating
practices such as adjusting inflows and
outflows to regulate the impoundment
level, or using ;automa tic level
controllers or alarms, will also help
prevent overtopping when potential
problems, such as unusually large
storms, occur.
The regulatory language differs from
that contained in the January 12
regulations, which required 2 feet of
freeboard or any alternative amount of
freeboard based on documentation
acceptable to the Regional
Administrator showing that no
overtopping will occur. In substance,
however, the new standard is similar. It
sets forth a general performance
standard to prevent overtopping, and
leaves to the Regional Administrator the
task of specifying the specific design
features and operating practices in the
permit.
The term "prevent" is absolute and
quite stringent, reflecting the Agency's
view that outflow of liquid hazardous
wastes over the top of an impoundment
poses a potentially very serious threat to
human health and the environment. Not
only is there the very real threat posed
by the actual escape of hazardous
wastes, but also overtopping can
threaten the structural integrity of the
dike itself, creating the potential for
catastrophic damage. EPA realizes,
however, that certain events or '
combinations of events that can cause
overtopping will be so improbable that
they must and should be ignored. Some
of these might even-be considered to
border on the absurd, e.g., the possibility
that all of the production storage tanks
and basins associated with a
manufacturing operation will break at
once, releasing the contents to a surface
impoundment, causing it to overflow.
The Agency does not intend that
overtopping resulting from highly
improbable events be protected against.
One common event that will frequently
have to be addressed is overtopping
potential resulting from drainage of
stormwater into the impoundment. In
this case EPA believes the impoundment
should be designed and operated to
prevent overtopping resulting from at
least the flow generated by the 24-hour,
100-year storm event. This storm event
is recommended since it is the rarest
event for which data are readily
available.
EPA had deleted a requirement
contained in the January 12 regulations
that run-on be diverted away from a
surface impoundment. We agree with
commenters who noted that run-on is
acceptable so long as the design and
operation of the impoundment are such
as to ensure that run-on does not cause
overtopping. Therefore, EPA has simply
included run-on as a factor to be
addressed in preventing overtopping.
5. Structural Integrity of Dikes
{Sections 264.221(d) and 264.226fcJ).
Surface impoundments must have dikes
that are designed, constructed, and
maintained with sufficient structural
integrity to prevent massive failure. This
requirement is essentially the same as in
the January 12 regulations, with one
exception.
The January 12 regulations provided
that structural integrity of the dikes
should be maintained without
dependence on any liner system
included in the surface impoundment
design. This requirement reflected the
importance of absolutely preventing any
dike failures, which have in the past
resulted in sudden release of very large
quantities of liquid wastes from
impoundments. Even though these
regulations require that liner systems
not leak during the active life of the unit,
some liners will leak due to physical or
chemical damage. It is not prudent,
therefore, to depend on the integrity of
the liner system as a necessary
condition for dike stability. Therefore,
dikes must be constructed to prevent
collapse due to scouring or piping in the
event of liner leakage.
However, the January 12 language
failed to distinguish between cases
where the liner is a part of the dike and
cases where it is not. In some cases, on
the one hand, several feet of compacted
clays may be used as part of the dike in
a storage surface impoundment and may
contribute to structural stability in ways
other than retarding leakage. On the
other hand, a synthetic liner would not
normally be considered by engineers in
the field to provide strength to the dike
itself, and even a clay liner may fail to
provide additional structural integrity if
it is not intentionally designed to
achieve that purpose.
In light of the variety of circumstances
summarized above, today's regulations
simply contain a performance standard
requiring structural integrity to prevent
massive failure. The extent to which a
particular liner should or should not be
considered in assuring structural
integrity will be determined on a case-
by-case basis.
Due to the importance of structural
integrity, § 264.223(c) requires that prior
to permit issuance, the owner or
operator must obtain a certification from
a qualified engineer that the dike has
structural integrity. Furthermore, a
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
recertification is Required if an
impoundment is about to begin
operation after it has been out of service
for six months or more. The
recertification is necessary to assure
that no changes to the dike (e.g., erosion
during the shut-down period) have
impaired its structural integrity. The
period of six months is based on EPA's
judgment that significant changes may
occur during a period of that length.
The certification must cover two
aspects of structural integrity: (1) The
force exerted on the dike by the
contents of the impoundment and (2) the
dike's resistance to scouring and piping
in the event that the liner leaks. The
former ensures that the dike will not
collapse or be swept away simply as a
result of the pressure exerted against it
by its contents. The latter assures that
the dike will not collapse .or be washed
away if liquid begins to seep through it.
While seepage through a dike is
important from the standpoint of its
inherent pollution potential, ft also can
cause the dike's constituents (usually
soil) to become more Quid, to move, and
to flush through, creating a hole and
massive collapse—a very serious
consequence. Although evaluations of
structural integrity are, not foolproof, the
Agency believes mat ah evaluation and
certification provides an important
measure p.f protection.
a Monitoring and Inspection (Section
284.226(c)). Section 264.226 contains
several types of inspection
requirements, apart from the
certification of dike structural integrity
already discussed in Section VII.F.5.
above. First, liners and caps must be
inspected during construction and
installation for uniformity, damage and
imperfections, and after installation to „
insure tightness of seams and joints and
the absence of tears, punctures, and
blisters.
EPA considers the liner inspection to
be very important. Properly constructed
or installed synthetic liners should
prevent any migration of wastes for
many years. However, improperly
constructed or installed liners can result
in migration of wastes almpst
immediately after startup of the unit.
Section 264.226 also requires
inspections, weekly and after storms, of
design features and equipment
necessary to prevent overtopping; for-
sudden drops in the level of the
impoundment's contents; for the
presence of liquids in leak detection
systems; and of dikes. These inspections
are not very expensive or time
consuming; thus weekly inspection of
these important features is reasonable.
However, EPA does agree with the
commenters who argued that the daily
inspections required hi the January 12,
1981, rules were unnecessarily frequent
and burdensome.
7. Emergency Repairs (Section
264.227). The January 12 regulations
required that whenever there is a
"positive indication of a failure of the
containment system," the impoundment
must be removed from service. "Positive
indication" was described as including
waste detected in the leachate detection
system or a breach (e.g., hole, tear,
crack, or separation) in the liner.
Commenters argued that the harsh
remedy of immediately removing an
impoundment from service should only
be required to prevent or remedy
massive or catastrophic failure and not
to deal with relatively small-scale liner
breaks. EPA agrees and has modified
the regulatory language to deal only
with the truly emergency situtations.
Section 264.277(a) requires removal of
an impoundment from service when the
level of liquids in the impoundment
drops suddenly and the drop is not
known to be caused by changes in the
flows into or out of the impoundment. In
such a case, rapid discharge through the
liner must be presumed. For example, it
may be that the liner is leaking and that
channels in the underlying soils are
permitting rapid migration of wastes out
of the impoundment. EPA does not
anticipate that these circumstances will
occur in many cases. A second and
probably more likely situation requiring
removal from service is a leaking dike.
This indicates the potential for massive
dike failure. Even though dikes are
required to be constructed to prevent
failure, even in the event of leakage, our
ability to predict structural integrity of
dikes is not perfect and the potential
damage associated with dike collapse is
so great that the Agency believes
immediate action is necessary in the
event active leakage is discovered.
Minor deterioration of the dike (e.g.,
erosion) which can be easily repaired
would not require the removal of the
impoundment from service.
Removal of the impoundment from
service is defined in § 264.227(b) as
consisting of several steps: (1) Stopping
the addition of wastes to the
impoundment; (2) containing surface
leakage; (3) stopping future leakage; (4)
taking other necessary steps to prevent
catastrophic failure; (5) if necessary to
stop the lealror prevent catastrophic
failure, emptying the impoundment, and
(6) notifying the Regional Administrator
of the problem. Section 264.277(c)
requires that the contingency plan for
the impoundment include procedures for
complying with these requirements.
If the impoundment is returned to
service after removal from service under
§ 264.277(a), the dike's structural
integrity must be recertified. If it has
been removed from service due to a
sudden drop in liquid level and it has a
liner which was installed to comply with
§ 264.221, the repaired liner must be
certified as complying with the
applicable conditions.
- If an existing impoundment which is
exempted from the liner requirements,
has experienced a sudden drop in liquid
level, then a liner that complies with
§ 264.221 must be installed prior to its
return to service. Due to the extreme
failure of the impoundment, installing a
liner is absolutely essential to ensure
that substantial leakage to ground water
will not occur in the future.
If the impoundment is not returned to
service, § 264.227(e) requires that it must
be closed. This requirement is necessary
to assure that the failed impoundment is
not left with liquid wastes in it for an
unnecessary period of time.
8. Closure and Post-closure Care
(Section 264.228). Section 264.228 offers
owners or operators of surface
impoundments two alternatives for
closing their facilities. The first
alternative is to remove or
decontaminate all wastes at closure.
The second is to leave the wastes in
place, eliminate free liquids, stabilize
the wastes, place a cap (final cover) on
top of the waste, and conduct post-
closure monitoring and maintenance.
If the owner or operator elects the
first alternative, he must remove or
decontaminate all wastes, waste
residues, contaminated system
components such as liners,
contaminated subsoils and
contaminated structures and equipment.
This is necessary because under this
option, no post-closure care or
monitoring is required. The
impoundment is a storage unit leaving
no hazardous constituents in the ground
after closure. All the removed residues,
subsoils and equipment must be
managed as hazardous wastes unless
the provisions of § 261.3(d) are complied
with.
• If the owner or operator makes all
reasonable efforts to comply with his
closure plan and to remove or
decontaminate all residues and
contaminated subsoils [e.g., he removes
or decontaminates all waste and waste
residues above the liner as well as some
contaminated subsoil) and then finds
that he cannot comply with his closure
plan because, he is unable to remove or
decontaminate all of the remaining
contaminated subsoils, he must close
the unit under the second option and
perform post-closure care as described
below. This situation is likely to occur
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32321
often in the case of existing portions
that do not have liners or have
inadequate liners. In a few cases, liners
installed in accordance with the
requirements of § 264.221 of these
regulations may also fail. In any of these
cases, contamination may have
migrated a considerable distance from
the impoundment and possibly even
entered the ground water. This situation
necessitates closure under the second
alternative to minimize the rate of
migration and monitor for potential
ground water contamination. In •
contrast, facilities with good liners that
do not fail will be able to avoid post-
closure responsibilities.
The second alternative for closing a
surface impoundment requires several
steps. First, free liquids must be
eliminated, by removing liquid wastes
and/or solidifying the remaining waste
residues. As discussed above in Section
VII.F.2, this is an important step in
minimizing the rate of leachate
migration. •
Second, the remaining wastes must be
stabilized to a bearing capacity to
support final cover (including the top
liner and earth materials placed above
that liner to protect the liner, allow the
growth of shallow-rooted vegetation, ,
and promote drainage). Failure to do so
is likely to result in substantial
differential settlement of the final cover
over time, thereby creating channels
through which liquids can enter the
impoundment and eventually leach the
waste constituents into the ground
water.
Third, a final cover must be placed
over the closed impoundment. The cover
must be designed and constructed to
provide long-term minimization of the
migration of liquids into the closed
impoundment. In addition, the cover
muit b« at least as impermeable as the
bottom liner. The purpose of these
requirements has been discussed in
Section VI. E. 5. of this preamble.
The final cover must also be designed
to minimize erosion, since erosion would
result in exposure of the covered wastes
and increased infiltration. Such
protection is provided by installing •
proper sloping, covering wijh
appropriate vegetation, and other
construction techniques. Finally, the
cover must accommodate settling and
subsidence so that its integrity is
maintained.
Several practices can help minimize
and accommodate settling and
subsidence at some closed
impoundments and especially at closed
landfills (which are subject to the same
general closure requirements as surface
impoundments]. These include placing
wastes and fill material (especially if
biodegradable material) uniformly
throughout the unit and constructing the
final cover with a slightly greater slope
than ultimately desired. Another
potentially useful approach involves
phasing of final closure. For example,
the permittee may place an interim,
partial, or temporary cover (cap) on the
unit and, after the initial (and likely
most severe) subsidence and settling
have occurred, install the final cover. In
such a case, the Regional Administrator
can extend the 180-day closure period of
§ 264.113(b), provided that the interim
cover will adequately minimize
infiltration or that the bottom liner is
still functioning.
Once the final cover has been
installed and compliance with the
closure provisions has been certified,
the post-closure period begins. Post-
closure care consists of maintaining the
final cover and performing monitoring.
Generally, monitoring consists of
continued ground water monitoring and,
if necessary, corrective action under
Subpart F just as was required during
the unit's active life. In a case where the
impoundment has a double liner and
leak detection system, leak detection,
rather than ground water monitoring,
must be continued during the post-
closure period. If a leak is discovered,
the owner or operator must notify the
Regional Administrator, who will then •
modify the permit to require compliance
with the ground water protection
requirements of Subpart F. (After
closure, repair or replacement of a
leaking liner would involve at least a
temporary destruction of the final cover,
resulting in the potential for significant
infiltration of liquids, and thus is not
desirable.) The presence of a final cover
on top of the unit should minimize
infiltration of liquids into the unit and
the discharge of liquid out of the unit.
Thus, detection monitoring should be in
place well before any ground water
contamination could occur.
9. Financial Responsibility for Piles
and Surface Impoundments from which
Wastes are Removed at Closure
(Sections 264.228(d) and 264.258(d)). As
noted above, an owner or operator of a
pile or surface impoundment who
removes (and properly disposes of) or
decontaminates all wastes, waste
residues, and contaminated equipment
and soils, has no further closure or post-
closure obligations (except to have
closure properly certified (§ 264.115)).
However, the regulations recognize mat
complete removal may not be
practicable in some cases and provide in
such cases for placing a final cover over
the unit and conducting post-closure
monitoring and maintenance.
If capping and post-closure care
become necessary, funds must be
available for those tasks. In preparing.
the regulations, EPA became concerned
that units whose owners or operators
planned to remove or decontaminate all
wastes at closure would have closure
plans that address only removal and
would have no post-closure plans.
Correspondingly, these units would have
financial responsibility only for the
expected means of closure. Yet, further
closure activities and postclosure care
might be necessary in some cases due to
unanticipated difficulty in removal or
decontamination.
The above concerns presented a
dilemma. On one hand, if EPA does not
require owners and operators to have
closure and post-closure plans to
provide for capping the units and
performing post-closure monitoring and
maintenance, then sufficient funds might
not be available to take these actions in
appropriate circumstances. On the other
hand, if EPA requires owners or
operators to have financial
responsibility for these activities, those
who successfully remove all
contamination at closure will have
• unnecessarily expended extra funds to
demonstrate financial responsibility for
capping and post-closure care.
EPA has attempted to balance these
two competing considerations by
correlating the financial responsibility
requirements for capping and post-
closure care to the likelihood that such
activities will actually become
necessary at particular piles or storage .
impoundments. Therefore, EPA
separately considered two types of
units: (1) Those that do not have liners
that comply with the design standard of
preventing migration (i.e., most existing
portions), and (2) those that do have
such liners.
Piles and storage surface
impoundments that lack liners meeting
the design standards, by definition do
not prevent the migration of wastes to
the subsurface soil or ground or surface
water. At best, they minimize such
migration, and at worst, they provide
little or no control. At these units, it will
often not be possible to remove all
contaminated soils at closure. In some
instances, leachate may already have
contaminated the ground water. It is
thus reasonable to conclude that these
units will often need to be covered at
closure and will require post-closure
maintenance and monitoring. Therefore,
EPA is requiring that such storage piles
and storage impoundments have: (1)
Closure plans to remove or
decontaminate the wastes, waste
residues, and contaminated equipment
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32322 Federal Register / Vol. 47, No. 143 / Monday, July 26,. 1982 / Rules and Regulations
and soils; (2] contingent closure plans to
cover the units; and (3) contingent
postclosure plans to perform post-
closure monitoring and maintenance.
The contingent plans must be followed
only if compliance with the primary
closure plan does not result in the
removal of all contaminated soils.
The financial responsibility
requirements for these units (contained
in §§ 264.228(d) and 264.258(d), with
conforming amendments in Subparts G
and H) cover only the contingent plans.
(If the owner or operator uses a trust
fund for financial responsibility, he must
pay for the waste removal or
decontamination and no money is paid
out from the fund to reimburse him for
this activity unless he successfully
completes removal or decontamination.)
Thus, the owner or operator must
demonstrate financial responsibility
only for final cover and post-closure
care. If the owner or operator is unable
to pay for closure, funds will be
available to cover the unit and provide
post-closure care. Although the wastes
will not have been removed in this
event, society will be in no worse a
position than it would have been if the
unit had been permitted and closed as a
disposal unit.
The Agency is aware that in some
cases, it may be cheaper to close surface
impoundments (or piles) as a disposal
facility. Thus, this rule would result in
less financial assurance than if coverage
of closure as a storage impoundment (or
pile) were required. The Agency
believes that in these cases, owners or
operators will simply apply for a permit
as a disposal operation anyway. And, in
the final analysis, it is ultimate
protection that is sought; this can be
provided by ensuring adequate closure
as a disposal facility.
Piles and storage surface
impoundments that have liners designed
to prevent migration during their active
lives should, in the normal course of
events, succeed in such prevention if
they plan to remove or decontaminate
their wastes, etc., at closure. Therefore,
EPA is not requiring contingent closure
plans to cover the units or contingent
post-closure plans to maintain or
monitor the units. Consistent with this
approach, financial responsibility for
such activities is also not required.
However, in some cases, a liner will fail
to meet its design objective of
preventing migration throughout the
unit's life. In such a case, the owner or
operator will need to obtain a permit
modification that imposes final cover
requirements as well as post-closure
monitoring and maintenance
requirements.
10. Special Requirements for Ignitable
or Reactive Waste- and Incompatible
Wastes (Sections 264.229 and 264.230).
Sections 264.229 and 264.230 continue
the good-operating-practice provisions
contained in the January 12,1981,
Subpart K regulations concerning the
appropriate handling of ignitable and
reactive wastes and incompatible
wastes. The comments contained in
those regulations have been deleted,
however, since they merely reiterated
the requirements of §§ 264.13, 264.17,
and 264.73.
G. Waste Piles (Part 264, Subpart L)
Subpart L contains the design and
operating standards for wastes piles
used to store or treat hazardous wastes.
Waste piles may not be used to
intentionally dispose of wastes. If the
owner or operator of a pile wishes to
dispose of wastes, he must apply for a
landfill permit and manage the pile as a
landfill.
The basic requirements for waste
piles are: (1) a liner to prevent migration
of wastes out of the pile and into the
subsurface soils and ground water or
surface water during the pile's active life
(with an exemption for existing
portions); (2) leachate collection and
removal; (3) control of run-on and run-
off; and (4) removal of wastes at closure.
Two exemptions from the ground-water.
protection requirements of Subpart F are
provided. One is for piles that have
double liners and leak detection
systems. The other is for any pile that
has a single liner from which the'wastes
are periodically removed so that the
liner can be inspected for cracks, leaks
or potential leaks. In addition, an
exemption from both the Subpart L liner
and leachate collection and removal
standards and the Subpart F ground-
water protection requirements is
provided to dry piles that are inside or
under structures protected from
precipitation, run-on and wind dispersal.
Finally, a variance from the liner and
leachate collection and removal
requirements is provided if the owner or
operator demonstrates to the Regional
Administrator that hazardous
constituents will never migrate from the
pile into ground water or surface water.
Many of the features of the Subpart L
regulations (liners, leachate collection
and removal systems, and double liners
and leak detection systems to obtain
exemptions from Subpart F) are
explained in the general discussion of
design and operating standards (see
Section VII.E.2. of this preamble) or in
the discussion of analogous provisions
in Subpart K for surface impoundments
(see Section VII.F. of this preamble) and
will not be discussed again here.
Features that relate specifically to piles
are discussed below. •
1. Relationship to Previously
Promulgated Design and Operating
Standards for Piles. These rules
supersede the 'Subpart L design and
operating standards for piles that were
promulgated on January 12,1981 (40 CFR
Part 264 Subpart L. 46 FR 2802), and
amended on November 6,1981 (46 FR
55110). The January 12,1981 regulations
contained two sets of standards for piles
that are contained, in revised format, in
today's regulations. First, today's
regulations, like the January 12
regulations, cover double-lined piles
with leak detection systems between the
liners. Second, they address single-lined
piles that are periodically removed from
their liners so that the liners may be
inspected for puncture, cracking, or
.other similar damage. In addition,
requirements for leachate collection and
removal are contained, as are
exclusions from ground-water protection
requirements. (However, as discussed
previously, today's regulations contain
hew provisions for imposing ground-
water protection requirements in case of
liner failure, unless the liner is repaired
or replaced.)
An additional set of standards that is
continued in today's regulations is the
November 6,1981 regulations for
"indoor" piles (see 45 FR 55111). Those
regulations provided that a pile is
exempt from liner and leachate
collection requirements if it (1) Is inside '
or under a structure that provides
protection from precipitation so that
neither run-off nor leachate is generated;
(2) receives no free liquids; (3) is.'
protected from run-on; and (4) will not
generate leachate through
decomposition or other reaction. In
addition, such piles were not subject to
ground-water protection requirements.
Today's § 264.250(b) contains this set of
standards.
Today's regulations provide greater
flexibility than the January 12,1981
standards by providing a set of
standards authorizing the permitting of
piles that have single liners and that are
• not periodically removed for liner
inspection, provided that they comply
with the Subpart F ground-water
protection requirements. This additional
standard is consistent with the basic
regulatory philosophy for landfills and
surface impoundments.
2. Design and Operating
Requirements (Section 264.251). a.
Liners and Leachate Collection
Systems—Waste piles (except for
existing portions) must have liners and
leachate collection and removal systems
above the liners. To reduce pressure
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Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32323
head on the liner, the leachate collection
and removal system must be designed
and operated to assure that leachate
depth over the liner does not exceed one
foot. The appropriate technologies
needed to meet this requirement depend
on the size of the pile, waste
permeability, and climatic conditions. If
the pile is small or the waste is
permeable; a separate drainage layer
below the waste may not be needed.
Instead, merely using a relatively
impermeable liner and sloping the liner
so that any leachate will flow can
provide a leachate collection and
removal system which will meet the
maximum one-foot head requirement.
For larger piles and less permeable
wastes, a separate drainage layer of
relatively permeable material and,
perhaps, a tile drainage system, will be
needed to meet the maximum one-foot
head requirement. Other techniques
include diversion of run-on and covering
the pile to prevent rain infiltration.
All leachate collection systems, but
most importantly those incorporating
drainage layers and tile drains, must be
designed and built so that they will
continue to function. More specifically,
they must be capable of (1) withstanding
the chemical attack that can result from
contact with leachate; (2) withstanding
the forces exerted by wastes,
equipment, earth pressures, etc.; and (3)
operating without clogging. Any of these
phenomena (chemical attack, external
forces, or clogging) can reduce or
destroy the efficiency of these systems.
b. Control of run-on and run-off—
Section 264.251 (c)-(e) contains specific
requirements regarding run-on and run-
off. To minimize leachate generation, the
owner or operator must design,
construct, operate and maintain a run-on
control system capable of preventing
flow onto the active portion of the pile
during peak discharge from at least a 25-
year storm. To minimize hazards from
run-off of contaminated liquid, a runoff
management system must collect and
control the water volume resulting from
at least a 24-hour, 25-year storm. Finally
the collection and holding facilities
associated with run-on (if any) and run-
off control systems must be emptied or
otherwise managed expeditiously after
storms to maintain capacity of the
system. This last requirement, not
contained in the January 12,1981
regulations, is intended to ensure that
capacity of the system is not consumed
by successive storm events.
The basic run-on and run-off control
standards are similar to the January 12,
1981 requirements, except that the
design storm to be protected against are
now specified in the regulations. This
specification responds to commenters '
who argued that the previous
requirements were so vague as to leave
owners and operators uncertain as to
the extent of their responsibilities.
EPA chose the 25-year storm as the
storm size which should be protected
against in run-on and run-off systems for
both piles and landfills. EPA is unaware
of any hard data to quantify the relative
degrees of risk reduction provided by
differently sized run-on and run-off
control systems. Differences in cost can
be calculated more easily. EPA
estimates that managing a 100-year
storm requires a 7 to 25 percent increase
over the cost required for a 25-year
storm, depending on location, watershed
size arid unit size and design. For
example, for1 a typically sized landfill,
the cost difference might typically
amount to $10,000. While this does not
seem to be a prohibitive expense, EPA
does not wish to require the additional
protection if the potential benefits are
de minimis. It can be argued, for
example, that a storm more severe than
a 25-year storm would produce such a
large volume of run-off and such a short
contact time with the waste that any
hazardous constituent levels in the run-
off would be very low.
' However, in the absence of
substantial data base, EPA remains
concerned that, at least in some
situations, designing only to
accommodate a 25-year storm is
inadequate. For example, if a pile or
landfill has a 25-year active life, there is
at least a 50-percent chance that the
design capacity of the system will be
exceeded during the unit's active life.
Therefore, EPA requests information,
including any available data, on the
following questions:
(1) What relative benefits (in terms of
types and magnitude of averted damage)
can be expected from designing for a
100-year storm event versus designing
for a 25-year event?
(2) What are the relative costs for 25-
year and 100-year storm designs for
variously sized and located piles and
landfills?
(3) Under what circumstances and
conditions does overflow of run-off and
run-off control systems cause an
adverse environmental or human health
impact? Are there sensitive areas or
conditions under which more stringent
design is warranted? Can these be
succinctly and clearly defined?
Readers should note that the selection
of a 25-year criterion for run-on and run-
off controls differs from the selection of
a 100-year criterion set in the floodplain
standards in § 264.18. Flooding is a
potentially more serious event than
either run-on or run-off, since a flood is
capable of washing away large
quantities of bulk wastes and drums of
wastes, and may transport them
considerable distances. Therefore, EPA
believes that protection against a 100-
year flood is necessary.
The final design and operating
standard contained in § 264.251
continues the January 12,1981
requirement that wind dispersal be
controlled (e.g., by cover or wetting).
The language has been modified to
clarify that only particulate matter must
be controlled. As explained in section
VI.C. of this preamble, EPA is not
regulating volatile emissions in the
design and operating standards being
promulgated today.
3. Exemption of Certain Piles From
the Ground-water Protection
Requirements of Subpart F (Section
264.253). Apart from the exemption from
Subpat F for pHes, impoundments and
landfills that have double liners and
leak detection systems, discussed above
in Section VII.E.8. of this preamble,
§ 264.253 provides a special exemption
from Subpart F for any waste pile that is
periodically removed from the liner so
that the liner may be inspected for
cracks, erosion, or other conditions that
could result in leakage. This exemption
relies on inspection of the liner to assure
that the liner is intact and is not
allowing leachate to migrate through the
liner. This inspection procedure obviates
any need to monitor the ground water.
The liner must prevent migration of
wastes into the subsurface soil or
ground or surface water during the
active life of the unit. Thus, it must be a
low-permeability liner. Furthermore, it
must be. of sufficient strength and
thickness to prevent failure due to
puncture, cracking, tearing, or other
physical damage from equipment used
to place waste on the liner or remove
waste from the liner for inspection.
Synthetic membrane liners are not
likely to be capable of withstanding
damage from repeated removal and
replacement of wastes during liner
inspections. Clay liners will also be
unsuitable in many cases, because when
exposed to air, they tend to dry out to
some extent and crack, resulting in the
development of channels through which
leachate may migrate. Therefore, EPA
expects that reinforced concrete with
appropriate coatings will be the liner
material chosen by most owners and
operators wishing to qualify for a
Subpart F exemption under § 264.253.
For piles obtaining a Subpart F
exemption pursuant to § 264.253, the
regulations further provide that the
inspection plan generally required by
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32324 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
§ 264.15 include a schedule of inspection
which includes periodic removal of the
waste pile and testing of the liner to
ensure that it has not deteriorated to the
point at which it is no longer capable of
containment or is already leaking.
This exemption is intended for, and as
a practical matter will apply to, small
piles, especially small piles where the
normal operation of the pile periodically
or routinely results in removal of the
waste. The removal of the waste from
other than small piles on a periodic and
routine basis to inspect the liner, as
required by the rule, would normally be
impractical because of handling and
storage difficulties. As discussed above
in Section G.2.a., larger piles of less
permeable wastes in Wetter climates
will need a relatively permeable
drainage layer (e.g., gravel or sand] and
possibly a tile drainage system in order
to comply with the one-foot head
requirement. To remove the wastes and
drainage layers from such piles in order
to meet the inspection requirement, will
normally be impractical. Usually, only
small piles will have sufficient drainage
to the sides of-the pile to meet the one-
foot head requirement without a
drainage layer. Exceptions might include
large piles that are covered, located in
areas of low rainfall, or that contain
waste which is impermeable. The
regulations do not specify the pile size in
an exemption, but the practicality of
both inspecting the liner and meeting the
one-foot head requirement will limit the
size in practice.
Finally, the rule requires that if the
liner is leaking, the owner or operator
must notify the Regional Administrator
and either repair or replace the liner or
else begin a detection monitoring
program under Subpart F if such a
program has already been incorporated
in the pile's permit as a contingency.
These two options are identical to the
two options available for double-lined
piles, impoundments and landfills that
are exempt from Subpart F. (See
discussion above in Section VII.E.8. of
this preamble.)
4. Monitoring and Inspection (Section
264.254). Section 264.254 contains
requirements for inspections of liner
systems before and after installation.
These are similar to the liner inspection
requirements for surface impoundments
discussed above in Section VII.F.7. of
this preamble. Special inspection
requirements for piles exempted from
the Subpart F ground-water protection
requirements are set forth in § § 264.252
and 264.253.
5. Special Requirements for Ignitable
or Reactive Wastes and for
Incompatible Wastes (Sections 264.256
and 264.257). The language of the
January 12,1981, regulations for
ignitable or reactive wastes has been
modified to conform to the language
contained in the analogous surface
impoundment requirements in § 264.228.
However, the substance of the
regulations is unchanged. The regulatory
language of the January 12,1981 version
of § 264.257 (incompatible wastes) has
been retained, but the comments to that
section have been deleted because they
were merely explanatory and lacked
regulatory effect.
6. Closure and Post-closure Care
(Section 264.258). Since piles are storage
facilities, all waste residues, and
contaminated subsoils and equipment
must be removed or decontaminated at
closure. This requirement is identical to
the first alternative for closing surface
impoundments under § 264.228(a)(l),
and is discussed in more detail in
Section VII.F.9. of this preamble.
If the owner or operator removes or
decontaminates all waste residues and
makes all reasonable efforts to remove
or decontaminate all Contaminated
containment systems, subsoils,
structures, and equipment and finds
after such efforts that some
contamination remains that he cannot
remove or decontaminate, then the pile
will be considered a disposal unit under
these regulations and must be closed in
accordance with the closure
requirements for landfills. Thereafter,
the owner or operator must comply with
the landfill post-closure requirements.
The procedure is the same as for a
surface impoundment whose owner or
operator has planned to remove all
wastes at closure and, because he finds
that he cannot practicably remove or
decontaminate all contaminated soil at
closure, becomes a disposal unit subject
to the second closure alternative under
§ 264.228(a)(2) and to post-closure
requirements.
A "reasonable effort" to remove all
contaminated subsoils includes removal
of all wastes and waste residues in the
unit, all contaminated liners and
equipment, and at least some subsoil.
After making reasonable attempts to
remove all contaminated subsoil and
failing thereby to remove all
contaminated subsoil, the owner or
operator may then cease further removal
attempts but must close the unit and
perform post-closure activities as he
would do in the case of a landfill.
7. Small Piles. Several commenters on
the January 12,1981, regulations
suggested that small, low-hazard
temporary waste piles should be
exempted from Subpart L requirements.
While EPA believes that there may be
some merit to these comments, it has not
to date received enough information to
be able to define the size, duration and
contents of piles that might deserve such
an exemption. EPA solicits information
that would pertain to the
appropriateness of such an exemption.
In addition, the Agency solicits
information supporting the possibility of
exempting certain type of piles from
particular design and operating
requirements or Subpart F ground-water
protection requirements.
H. Land Treatment (Part 264, Subpart
M)
EPA believes that land treatment can
be a viable management practice for
treating and disposing of some types of
hazardous wastes. Land treatment
involves the application of waste on the
soil surface or the incorporation of
waste into the upper layers of the soil in
order to degrade, transform or
immobilize hazardous constituents
present in hazardous waste. The success
of land treatment particularly depends
upon the operational management of the
units. Unlike many landfills or surface
impoundments, for example, land
treatment does not use highly
impermeable liners to contain wastes.
Rather, land treatment relies on the
dynamic physical, chemical, and
biological processes occurring in the
upper layers of the soil for the
degradation, transformation, and
immobilization of hazardous
constituents. In this sense, land
treatment can be viewed as an "open"
system.
Because land treatment depends upon
a number of soil/waste interactions for
success, it is especially important that
the units be carefully operated.
Maintenance of proper soil pH to
optimize microbial action and metal
immobilization, careful management of
waste application rate to prevent
exceeding the soil's treatment capacity,
and control of surface water run-off to
prevent untreated hazardous waste from
leaving the facility are several of the key
operational aspects. In addition, well-
managed land treatment includes •
monitoring in the unsaturated zone to
provide information that the owner or
operator will use in modifying his
operating practices to maximize the
success of treatment processes.
As described in other sections of this
preamble, one of the principal objectives
of the design and operating
requirements applicable to each type of
unit is to provide effective management
of liquids at the facility to minimize the
risk of ground-water contamination. At
surface impoundments, landfills and
piles this objective is principally served
by the construction of barriers that
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32325
prevent liquids from entering the units
and from entering the soil.
The general approach must be
modified somewhat for land treatment
units. Land treatment units are
dissimilar to other land disposal units in
that they are not designed and operated
to minimize all releases to ground water.
On the contrary, they are open systems
that freely allow liquid to move out of
the unit. The goal of land treatment,
therefore, is to reduce the
hazardousness of waste applied in or on
the soil through degradation,
transformation and immobilization
processes.
The land treatment regulatory
approach, however, does seek to
minimize the uncontrolled migration of
hazardous constituents into the
environment. This is accomplished by
using a defined layer of surface and
subsurface soils (referred to as the
"treatment zone") to degrade, transform
or immobilize the hazardous
constituents contained in the leachate
passing through the system. Such
treatment processes achieve the same
general objectives as the liquids
management strategy used at other
types of land disposal in that they act to
prevent hazardous constituents from
migrating into the environment.
1. Applicability (Section 264.270). The
regulations in this Subpart apply to
owners and operators of new and
existing land treatment units. There is
no exemption for "existing portions" as
found in the regulations for other types
of land disposal. The requirements for
land treatment units do not require the
placement of liners under the waste and,
thus, should not pose major retrofitting
problems for existing portions.
2. Treatment Program (Section
284.271). The key element of a land
treatment unit is the program which the
owner or operator establishes to
degrade, transform or immobilize the
hazardous constituents in the wastes
managed at the unit Today's regulations
indicate that there are three principal
elements to the treatment program that
will be specified in the facility permit.
First, the permit will specify the wastes
that may be handled at the unit. (The
Regional Administrator will base his
selection of the wastes allowed at the
unit on the treatment demonstration
under § 264.272.) EPA is concerned that
parties who engage in uncontrolled
dumping of waste not be allowed to
claim that they are conducting a land
treatment operation simply because
some breakdown of waste constituents
occurs when the waste is dumped.
Therefore, EPA believes that land
treatment should be reserved for those
hazardous wastes having hazardous
constituents that can be completely
degraded, transformed, or immobilized
through land treatment.
At present, the Agency believes that
land treatment should be confined to
wastes that are primarily organic and
that can be greatly reduced in volume
by physical, chemical, and biological
decomposition in surface soils. The
Agency also believes that the smaller
inorganic or persistent organic fractions
of these wastes can also be effectively
treated in surface soils. Hazardous
constituents such as heavy metals and
persistent organic compounds are either
unaffected or are only slowly affected
by the primary treatment mechanisms—
degradation and transformation.
Instead, these hazardous constituents
can be treated by immobilization in
surface soils.
Effective immobilization of hazardous
constituents at land treatment units can
occur through chemical or physical
processes. Hazardous constituents may .
be effectively immobilized via chemical
reactions, such as precipitation,
complexation, and cation exchange
reactions, or via physical attenuation
processes which entrap hazardous
constituents within the soil matrix.
Dilution, however, does not constitute
an acceptable treatment process.
Dilution does not provide chemical,
biological, or physical "treatment" (i.e.,
degradation, transformation or
immobilization) of hazardous
constituents. Rather, dilution allows
wide dispersal of hazardous
constituents in the soil matrix. Since
they remain untreated, such constituents
may eventually migrate and concentrate
to unacceptable levels in ground water
or surface water.
Second, the land treatment program
will include a- set of design and
operating measures that are necessary
to maximize degradation,
transformation and immobilization of
hazardous waste constituents. (The
Regional Administrator will also base
his selection of these design and
operating conditions on the treatment
demonstration under § 264.272.)
The waste application rate and the
timing of such applications are two of
the most important elements of a
program for managing a land treatmejit
unit. The Regional Administrator will,
therefore, explicitly address these two
factors in the facility permit. Another
critical factor is pH control. Soil pH has
a major influence on the magnitude of
microflora populations, which are
essential for degradation, and on the
mobility of mefals. There are many unit-
specific operations that will be
necessary to achieve the intended
performance, such as proper tilling
frequencies, maintenance of microbial
populations (perhaps by the addition of
fertilizers), and careful management of
the water content of the treatment zone.
These specifics of unit operation will
also be addressed in the facility permit.
Third, the treatment program will
include an unsaturated zone monitoring
program. The purpose of this program is
to determine the success of treatment in
the treatment zonerThe information
provided by this monitoring will help in
making modifications to the operating
practices at the unit to maximize the
success of treatment. Thus, the purpose
of the monitoring is to assist in "fine-
tuning" the land treatment program. The
elements of the unsaturated zone
monitoring program will b'e discussed in
more detail later in this preamble.
As part of the development of the land
treatment program, the Regional
Administrator will define a list of
hazardous constituents that are of
concern. These are the constituents that
the owner or operator must seek to
degrade, transform or immobilize. As in
Subpart F, the basic universe from
which hazardous constituents are
selected is the list of constituents in
Appendix VIII of Part 261. (The
preamble discussion of Subpart F
explains the basic rationale for using
Appendix VHI).
In the land treatment regulations, the
hazardous constituents are those
Appendix VIE constituents that are
reasonably expected to be favor derived
from, waste placed in or on the
treatment zone. The owner or operator
must assist in establishing what the
hazardous constituents will be at the
facility by conducting a thorough waste
analysis of the wastes that will be
handled at the facility. (This step is
required under the general waste
analysis provision of § 264.13 because
such information is necessary to ensure
compliance with Subpart M.) It may be
possible to develop waste analysis
procedures that attempt to characterize
broad classes of waste; if so, it will not
be necessary to analyze each batch of
waste that might be handled at the unit.
Another, basic element of the
treatment program is a clear definition
of the treatment zone, the portion of the
unsaturated zone in which the owner or
operator intends to accomplish
degradation, transformation and
immobilization of hazardous
constituents. The Regional
Administrator will specify the vertical
and horizontal dimensions of the
treatment zone.
One of the crucial concerns about the
treatment zone is its depth. EPA
considered several options for defining
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32326 Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations
the appropriate depth of the treatment
zone. One option was to make the
treatment zone the "zone of
•incorporation." (This was the approach
included in the February 5,1981
proposed rules.} Commenters pointed
out, however, that liquid hazardous
wastes are sometimes spread on the
surface of the soil and thus are not
incorporated. In such cases a "zone of
incorporation" is not a meaningful
concept. Therefore, EPA decided not to
use this approach.
A second option was to let the owner
or operator define the treatment zone as
long as it was above the water table.
While .this approach had the advantage
of flexibility, EPA was concerned that
an owner or operator could defeat the
basic purpose of the unsaturated zone
monitoring program by selecting a deep
treatment zone. The purpose of the
unsaturated zone monitoring program is
to give relatively prompt feedback on
the success of treatment in the treatment
zone. If the treatment zone was deep,
there would be a considerable lag time
(possibly several years) between the
tune that waste was applied and the
time that the failure of the treatment
process was detected. EPA, therefore,
concluded that there needed to be a
maximum depth for the treatment zone.
Ultimately, EPA concluded that the
treatment zone should be no deeper
than 1.5 meters (5 feetJ.This depth from
the initial surface soil elevation was
chosen as a maximum depth for the
treatment zone because soil conditions
below this depth are generally not
conducive to degradation and
immobilization of hazardous
constituents. Under the anaerobic and
reducing conditions which occur in most
soils below 1.5 meters, the solubility of
most heavy metals increases. Also, the
anaerobic conditions limit survival of
the soil microflora necessary for
degradation of most wastes. The 1.5
meter depth, as a maximum, should
enable nearly all land treatment units
the opportunity to operate successfully.
Today's regulations place one more
constraint on the depth of the treatment
zone. The Agency is today requiring a
minimum distance of One meter (3 feet)
between the bottom of the treatment
zone and the seasonal high water table.
This minimum distance is necessary to
(1) allow for installation and
implementation of the unsaturated zone
monitoring, and (2) provide some
minimum buffer to account for
fluctuation in the seasonal high water
table.
Unsaturated zone monitoring at land
treatment units must include soil
monitoring and soil pore-liquid
monitoring immediately below the
treatment zone. At least 15 cm (6 inches)
of soil depth below the treatment zone is
needed for adequate soil sampling.
Thirty cm (12 inches) of soil will be
sufficient, hi most cases, for placement
of the soil pore-liquid sampling device
wholly below the treatment zone.
However, due to the difficulties
associated with field monitoring, sample
collection will often occur somewhere
above or below the desired depth.
Hence, sufficient soil depth (above the
seasonal high water table) must be
available to account for the inherent
errors associated with field monitoring.
The Agency believes that a one meter
soil depth will accomplish this.
The seasonal high water table, as
specified in local soil surveys (which
have often been conducted jointly by the
Soil Conservation Service and the State
Agricultural Extension Agency), will
often fluctuate over time. The degree of
fluctuation will vary depending on the
hydrologic and geologic characteristics
of a particular site. In most cases, the
Agency believes that a one meter soil
buffer will adequately account for this
fluctuation.
3. Treatment Demonstration (Section
264.272). The first step in the
establishment of a land treatment
program is to conduct a treatment
demonstration. The purpose of this step
is to establish what combination of
operating practices at the unit (given the
natural constraints at the site such as
soild characteristics and climate) can be
used to completely degrade, transform
or immobilize the hazardous
constituents in the wastes that the
owner or operator seeks to manage at
the unit.
The treatment demonstration is used
to define two elements of the land
treatment program. First, it establishes
what wastes may be managed at the
unit. The owner or operator may only
apply those hazardous wastes that he
has shown can be degraded,
transformed or immobilized such that
hazardous constituents are not expected
to emerge from the treatment zone.
Second, the treatment demonstration
will define the initial set of waste
management practices (including waste
application rates) that will be
incorporated into the facility permit.
These practices may be modified over
time as data from the unsaturated zone
monitoring program indicates the need
for adjustments.
The treatment demonstration occurs
before the unit is at full-scale operation
under a permit. The information
generated from the demonstration will.
be submitted to the Regional
Administrator and will be used to set
permit conditions.
The treatment demonstration presents
issues that are analogous to those that
EPA has addressed for trial burns in the
hazardous waste incinerator regulations.
A treatment demonstration may involve
field testing of particular wastes on a
sample soil plot, or it may involve
laboratory testing. (These are not the
only methods of making a treatment
demonstration, as will be discussed
later in this preamble.) Where field
testing or laboratory analyses are used,
hazardous waste disposal or treatment
is occurring and RCRA provides that
such an activity requires a permit. EPA
has provided a limited mechanism under
the permit regulations, in § 122.27, for
the issuance of phased land treatment
permits that will allow some owners and
operators to make a treatment
demonstration using field testing or
laboratory analyses without first
receiving a disposal or treatment permit
separate from the actual facility permit.
The basic criterion used in evaluating
a treatment demonstration is that it
must be possible to achieve complete
degradation, transformation or'
immobilization of the hazardous
constituents in a waste if that waste is
to be applied at the unit. Within the
limits of the tests used in the
demonstration, this is a standard that
requires 100% treatment. EPA believes
that land treatment should be limited to
wastes for which complete treatment is
possible; therefore, the "100% treatment"
criterion is most appropriate. EPA
recognizes that it will not always be
possible to achieve 100% treatment at an
operating unit because of variations in
climatic and other conditions not fully
under the control of the owner or
operator. Thus, the failure to achieve
100% treatment at an operating unit does
not necessarily constitute a permit
violation but rather it will often be
grounds for modifying permit conditions
to maximize the success of treatment at
the unit.
The treatment demonstration can be
accomplished using information derived
from published literature, laboratory
studies, field studies or actual facility
operating experience (i.e., monitoring
results). Successful demonstrations will
most often involve data obtained from
several of the above sources.
A literature search on the particular
waste in question should first be
conducted. Information in the published
literature may assist in the design of
laboratory or field experiments, or
significantly reduce or eliminate the
need for additional experimentation.
However, the Agency believes that, for
most land treated hazardous wastes, an
inadequate data base is available in the
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Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations 32327
literature to predict unit-specific waste-
soil interactions.
Laboratory studies may be used as
rapid screening techniques for
examining, within a reasonable time
frame, the effects of various factors on
treatment effectiveness. Extrapolation of
this data to field conditions, however,
may often be difficult because of the
complex interactions occurring in the
field. Therefore, field studies often will
be necessary to verify certain lab-
generated results.
Fa- existing units, actual operating
data (i.e., monitoring results) can also be
effectively used to demonstrate
treatment. The monitoring data must
include results from soil-core, soil pore-
liquid, and ground-water monitoring.
All data used to demonstrate the
treatability of the hazardous
constituents in a specific waste in a
particular land treatment unit must be
generated under conditions similar to
those present at the unit. At a minimum,
the following unit-specific
characteristics and conditions must be
simulated in the treatment
demonstration:
(1) Characteristics of the land-treated
waste;
(2) The depth and characteristics of
the treatment zone;
(3) Topography of the treatment zone;
(4) Climate of the area; and
(5) Operating practices (such as waste
application method and rate, tilling
depth and frequency, and soil
conditioning practices [eg., pH
adjustment, fertilization, etc.)).
Specific guidance regarding the
necessary elements of the treatment
demonstration is provided in the RCRA
Land Treatment Guidance Document.
4. Design and Operating
Requirements (Section 264.273). In
§ 264.273, the regulations indicate what
general design and operating
requirements apply to land treatment
units. The principal design and
operating measures are those that are
required as part of the land treatment
program, These requirements can
include limits on waste, application rates
and methods, measures to control soil
pH, measures to enhance microbial or
chemical reactions (e.g., fertilization,
tilling) and measures to control the
moisture content of the treatment zone.
The Regional Administrator will specify
these design and operating conditions in
the facility permit based on the results
of the treatment demonstration under
§ 284.272.
In addition, there are other general
design and operating requirements that
apply to land treatment units that are
analogous to those required at other
types of land disposal units. The unit
must have effective run-on and run-off
management systems. These control
systems are essential in limiting the
transport of hazardous constituents
either through the treatment zone
toward ground water or off of the
surface of the unit in an untreated
condition where they may contaminate
surface water or an off-site location.
Run-on controls are particularly
important at land treatment units. EPA
believes that proper treatment requires
careful management of the soil's
moisture content. Excess water in the
treatment zone caused by run-on can
significantly limit the treatment
effectiveness and can also hinder such
operations as tilling. In addition, run-on
will increase the amount of water
flowing down through the treatment
zone and, therefore, increase the
likelihood of the transport of hazardous
constituents out of the treatment zone
towards ground water.
Today's regulations provide that the
owner or operator must design,
construct, operate and maintain a run-on
control system that is capable of
preventing flow onto the active portion
of the unit during the peak discharge
from at least a 25-year storm. The peak
discharge will have to be determined on
a unit-specific basis and will depend on
the rainfall patterns in the region as well
as the size and terrain of the watershed.
The rationale for the 25-year storm
event is explained in the preamble
discussion of the design and operating
standards (Section VH.G.).
Today's rules also require that owners
and operators of land treatment units
must design, construct, maintain, and
operate a run-off management system
capable of collecting and controlling a
water volume at least equivalent to a 24-
hour, 25-year storm. The preamble
discussion of the design and operating
standards (Section VH.G.) contains
further discussion of the rationale for
this design.
, Besides the general requirements to
establish run-on and run-off systems/
today's regulations require that the
owner or operator manage the treatment
zone in a manner designed to minimize
run-off. In order for hazardous
constituents to be properly treated, it is
necessary that these constituents not be
allowed to run off the surface of the unit.
Minimization of run-off can be achieved
through proper unit siting and design,
particularly with regard to soil
characteristics and slope, as well as
through proper management of unit
operation, including the method, rate,
and scheduling of waste application.
Another requirement calls for control
of wind dispersal at the unit if the
treatment zone contains particulate
matter that is subject to wind dispersal.
Wind dispersal can be a serious concern
at land treatment units because
hazardous waste is generally placed on
or barely under the soil surface.
Measures to control wind dispersal will,
however, be somewhat different than
those used at other types of land
disposal units. Potential control
measures for land treatment units
include establishment of vegetative
cover, maintenance of proper surface
soil moisture, and the use of chemical
soil stabilizing agents.
5. Food-chain Crops (Section 264.276).
In some cases an owner or operator may
grow food-chain crops on a land
treatment unit. This practice raises
public health concerns. Accordingly,
EPA has placed restrictions on the
growth of food-chain crops on land
treatment units. The Agency believes
that food-chain crops can be safely
grown on land treatment units if these
standards are met.
Today's regulations on food-chain
crops are basically the same as the
restrictions found in the interim status
standards. Growth of food-chain crops
is not allowed unless the owner or
operator complies with two primary
criteria. First, he must demonstrate (for
every hazardous constituent except
cadmium) that hazardous constituents
will not occur in greater concentrations
in or on the crop grown on the unit than
in or on the same crop grown on
untreated soils under similar conditions
in the same region. Second, if cadmium
is a hazardous constituent at the unit,
the owner or operator must comply with
certain specified management practices
that are designed to limit the entry of
cadmium into the food chain.
The owner or operator must make the
demonstration necessary to meet the
first criterion before the crop is actually
planted. This demonstration must
describe the crop to be planted, the soil
characteristics of the treatment zone
(e.g., pH, cation exchange capacity) and
describe the procedures used in
conducting any tests of crops, including
the sample selection criteria, the sample
size, the analytical methods and the
statistical procedures used. Any tests
attempting to measure crop uptake must
be based on the specific wastes and
application rates being used at the unit
because these are critical factors in the
validity of the test. The owner or
operator may make this demonstration
using field tests, greenhouse studies,
available data, or, in the case or existing
units, operating data. Of course, if the
owner or operator wants to use field
tests or greenhouse studies to make the
demonstration, and he is not the owner
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32328 Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations
or operator of an existing unit already
growing the specific crop, he will have
to obtain a permit for conducting such
activities.
The analysis provided by the owner
or operator must show that hazardous
constituent levels in the crop grown at
the unit will not exceed those found in
the same crop grown on untreated soils
under similar conditions in the same
region. (This test does not, however,
mean that the comparison crop would
be from another hazardous waste land
treatment unit; data from such units
cannot be used as the basis for
comparison.)
The basic philosophy of this
requirement is similar to that used in
Subpart F for ground-water protection.
In the absence of specific standards for
hazardous constituents in food, EPA
believes it reasonable to assure that
there will be no significant increase of
such constituents in the human food
chain as a result of hazardous waste
disposal.
In defining the crop to.be used for
comparison purposes, EPA considered
several options. These included (1)
dropping the "in the same region" test or
(2) revising the test to call for
comparisons to a national average of
hazardous constituents found in crops
grown on untreated soils. EPA rejected
the first option because it does not want
to encourage owners and operators to
"shop around" for comparison data from
the region of the country where the
crops contain the highest levels of
certain metals or other constituents.
This might allow more highly
contaminated food-chain crops to be
marketed from land treatment units.
The Agency rejected the second
alternative because it believes that there
is not yet an adequate national data
base for most hazardous constituents in
crops grown on untreated soils.
Therefore, because the Agency has been
unable to identify less burdensome but
adequately protective demonstration
alternatives, the alternatives in today's
rules are the same as those in the
interim status standards.
EPA has not provided for a health-
based variance from the food-chain crop
standard based on narrative criteria.
EPA believes that specific contaminant
limits for.food should be established in
national rulemaking to allow for input
from Federal agencies like the Food and
Drug Administration, which are chiefly
responsible for setting such standards.
Today's regulations differ from the
interim status standards in identifying
the constituents of concern under the
standard. The interim status standards
require that the comparison must be
made for constituents listed in Appendix
VII and in Table I of § 261.24. Today's
rules, however, require this same
demonstration to be made for all
hazardous constituents (i.e., all
Appendix VIII constituents) that are
reasonably expected to be in, or derived
from, the waste being land treated.
The Agency has made this
demonstration more comprehensive in
light of several comments stating that
the safety of food-chain crops grown on
land treatment units could not be
ensured if the required demonstration
included only Appendix VII and Table I
constituents. Commenters have
observed that may hazardous
constituents not listed in Appendix VII
or Table 1 of § 261.24 could threaten
human health if present in food-chain
crops from land treatment units. The
Agency agrees with these commenters
and has decided, because of the high
level of risk that could be associated
with inadvertent or undetected non-
compliance with the standards for food-
chain crops, to require this more
comprehensive demonstration.
If the owner or operator demonstrates
that the food-chain crops grown at the
unit will not have contaminant levels
above those found in similar crops
grown on untreated soils under similar
circumstances in the same region, the
Regional Administrator will indicate in
the facility permit that these crops may
be grown at the unit. The owner or
operator may not plant any food-chain
crop not identified in the permit. ~
The second component of the food-
chain crop standard applies only to
cadmium. The regulations set forth two
sets of management practices that can
be used to ensure that cadmium will not
cause any adverse effects on human
health or the environment. These
requirements are nearly identical to
those established in the Criteria for the
Classification of Solid Waste Disposal
Facilities and Practices (40 CFR Part
257). The rationale for the requirements
are .the same.
It should be noted that today's
regulations provide for "phasing in" the
limits on annual application rates
according to the same schedule found in
the Criteria. On February 5.1981 EPA
had proposed to eliminate this phasing-
in approach from the Part 264
regulations. EPA has decided, however,
to retain the phasing approach to
maintain equity between solid and
hazardous waste facility owners and
operators. Since both standards address
aggregate cadmium levels in the waste,
hazardous w'astes present no greater
risks to food-chain crops than solid
wastes if the standards are met.
6. Unsaturated Zone Monitoring
(Section 264.278). As indicated earlier,
the purpose of unsaturated zone
monitoring is to provide feedback on the
success of treatment in the treatment
zone. The information obtained from
this monitoring will be used to adjust
the operating conditions at the unit in
order to maximize degradation,
transformation and immobilization of
hazardous constituents in the treatment
zone.
For example, if a significant increase
of a hazardous constituent is detected in
unsaturated zone monitoring, the owner
or operator will examine more closely
the facility characteristics that
significantly affect the mobility and
persistence of that constituent. These
significant facility characteristics may
include treatment zone characteristics
(e.g., pH, cation exchange capacity,
organic matter content), or operational
practices {e.g., waste application method
and rate). Modifications to one or more
of these characteristics may be
necessary to maximize treatment of the
hazardous constituent within the
treatment zone and to minimize
additional migration of that constituent
to below the treatment zone.
It should be emphasized that
unsaturated zone monitoring is not a
substitute for ground-water monitoring.
Both are required at land treatment
units. Ground-water monitoring is
designed to determine the effect of
hazardous waste leachate on the ground
water. Unsaturated zone monitoring
cannot perform that function as a
general matter. Instead, unsaturated
zone monitoring simply gives an
indication of whether hazardous
constituents are migrating out of the
treatment zone.
Likewise, unsaturated zone
monitoring is not equivalent to the leak
detection monitoring that is used at
some other types of disposal units [e.g.,
double-lined surface impoundments).
Leak detection monitoring is used in
. conjunction with a relatively "closed"
design {e.g., two liners with a drainage
layer between them) that is designed to
pick up any liquid migrating from the
unit. EPA believes that such a design
can be a substitute for the ground-water
monitoring and response program of
Subpart F.
Unsaturated zone monitoring,
•however, operates in an open system
that allows liquids to pass through the
unsaturated zone. While EPA believes
that unsaturated zone monitoring is
generally reliable, it cannot provide the
same level of certainty about the
migration of hazardous constituents
from the facility that a double-lined
surface impoundment (with a leak
detection monitoring program) can
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32329
provide. Therefore, unsaturated zone
monitoring cannot be a substitute for
ground-water monitoring.
Some commenters have expressed
concern about the reliability and
practicality of unsaturated zone
monitoring, particularly soil-pore liquid
monitoring. EPA believes that adequate
technology and expertise is available to
develop effective and reliable systems.
The Agency also believes that the
inconvenience cited by some
commenters can be avoided.
Commenters stated that the placing of
lysimeters (one type of device for
monitoring soil-pore liquid) on the active
portion of a land treatment unit would
hinder site operations. However, the
Agency knows of a number of existing
land treatment units with monitoring
systems engineered so that the above-
ground portion of the device for
sampling soil-pore liquid is located off
the actual treatment zone. This and
other methods can be used to avoid any
inconvenience associated with the
location of these devices.
The unsaturated zone monitoring
program must be designed to determine
the presence of hazardous constituents
below the treatment zone. Generally this
means that the owner-or operator must
monitor for the hazardous constituents
Identified for each hazardous waste that
is placed in or on the treatment zone.
EPA believes, however, that there
may be some situations where this
general monitoring burden may be
reduced without compromising the
objectives of the unsaturated zone
monitoring program. Some hazardous
constituents will be more difficult to
degrade, transform or immobilize than
others. Therefore, if the owner or
operator monitors for the constituents
that are difficult to treat and can
demonstrate that such constituents are
not migrating from the treatment zone,
then EPA can be reasonably certain that
other hazardous constituents are being
adequately treated.
The Regional Administrator may
address this situation by selecting
principal hazardous constituents (PHCs)
for the unit. A PHC is a hazardous
constituent contained in the waste
applied at a unit that is difficult to
degrade, transform or immobilize in the
treatment zone. The owner or operator
may ask the Regional Administrator to
establish PHCs at the unit if the owner
or operator can demonstrate to the
Regional Administrator's satisfaction
that degradation, transformation or
immobilization of the PHCs will assure
adequate treatment of the other
hazardous constituents in the waste.
The RegionalAdministrator will be
particularly concerned with two factors
when deciding whether to establish
PHCs. First, he will be concerned with
the mobility of the constituent. Since
PHCs will be monitored in the area
below the treatment zone, the Regional
Administrator will want to assure that
the PHCs give an early warning of the
failure of the treatment process.
Therefore, a PHC must be one of the
most mobile constituents in the
treatment zone. Second, a PHC must be
one of the most concentrated and
persistent constituents in the treatment
zone. This is to assure that the
constituent provides a reliable
indication of the success of treatment in
the treatment zone.
In the selection of principal hazardous
constituents, the Regional Administrator
will evaluate the results of waste
analyses, literature reviews, laboratory
tests, and field studies. Waste analyses
will be used to identify the hazardous
constituents in the waste. Information
obtained from literature reviews,
laboratory tests, and field studies
(including monitoring results for existing
units) will be used to assess the relative
mobility and persistence of the various
hazardous constituents. The extent of
data needed to support the selection of
one or more principal hazardous
constituents for a particular waste will
be determined by the Regional
Administrator.
Both soil-core and soil-pore liquid
monitoring are required in today's rules.
These two monitoring procedures are
intended to complement one another.
Soil-core monitoring will provide
information primarily on the movement
of "slower-moving" hazardous
constituents (such as heavy metals),
whereas soil-pore liquid monitoring will
provide essential additional data on the
movement of fast-moving, highly soluble
hazardous constituents that soil-core
monitoring may miss.
The general elements of the
unsaturated zone monitoring program
are patterned after those required for
ground-water monitoring in Subpart F.
As in the detection monitoring program,
the unsaturated zone monitoring
program is designed to determine
whether the level of hazardous
constituents in the soil or soil-pore
liquid below the treament zone shows
statistically significant increases over
the background levels of those
constituents in the soil or soil-pore
liquid. In addition, today's regulations
include requirements for monitoring
systems, sampling frequency and
sampling and analysis procedures and
methods that are analogous to those in
Subpart F. Some modifications of the
Subpart F monitoring program must be
made, however, to make it compatible
with land treatment.
First, the basis for establishing
background values differs. In the
ground-water monitoring program,
background values are based on data
taken from upgradient monitoring wells.
Such a concept is not applicable to land
treatment units. Background values at
land treatment units are established by
sampling the soil and soil-pore liquid in
a background plot. A background plot is
generally a segment of the soil near the
unit that has characteristics similar to
that of the treatment zone and that has
not been contaminated by hazardous
waste. At a new unit, however, the
owner or operator could use the actual
treatment zone prior to waste
application as the background plot. The
key characteristic of the background
plot is its similarity to the treatment
zone.
Second, the unsaturated zone
monitoring program will rely on
statistical procedures that are somewhat
different than those used for detection
monitoring programs under Subpart F. In
order to account for seasonal variations
in soil-pore liq"uid quality, background
values will be based on one year of
quarterly sampling as in the detection
monitoring program. Since background
soil levels are not likely to change
significantly during such a time frame,
today's rules allow that background soil
levels may be established following a
one-time sampling. Unsaturated zone
monitoring is similar to compliance
monitoring, however, in that there may
be several constituents to be monitored.
Thus, the probability of an experiment
error rate is high. Therefore, the
statistical procedures used in the
unsaturated zone monitoring program
will be based on a narrative standard as
used in the compliance monitoring
program.
This standard seeks to provide
"reasonable confidence" that the
migration of hazardous constituents
from the treatment zone will be
indicated after balancing the risk of
false positives and the risk of false
negatives. (This preamble discusses the
rationale for this standard in Section
VII.D.10.) If the number of constituents
to be monitored is small, then this
standard can be met by the use of the
Student's t-test protocol described in
§ 264.97(h).
While EPA believes that the standard
for statistical procedures just described
should be adequate for most situations,
EPA intends to further analyze the
appropriateness of other statistical
procedures for. unsaturated zone
monitoring. For example, EPA is
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32330 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
considering whether other factors that
might affect background levels of soil
pore-water quality should be
specifically addressed in devising the
monitoring protocols. EPA specifically
asks for public comment on this issue.
Third, the unsaturated zone
monitoring program does not call for
measurements of the flow and direction
of ground water. The gradient in the
ground water is not relevant to
unsaturated zone monitoring and, thus,
such information is not necessary.
Fourth, the response to the detection
of a statistically significant increase in
Subpart M differs from the response
required in Subpart F. The results of
unsaturated zone monitoring are to be
used in the modification of the operating
practices at the unit. Thus, the required
response is the submission, within 90
days, of a permit modification
application that sets forth how the
owner or operator will adjust his
operating practices (including waste
application rates) to maximize
degradation, transformation and
immobilization of hazardous
constituents in the treatment zone.
However, an opportunity exists in
today's rules for not submitting the
permit modification application, but.
only if the owner or operator can
successfully demonstrate to the
Regional Administrator that the
statistically significant increase results
from an error in sampling, analysis, or
evaluation. This error demonstration
must be submitted to the Regional
Administrator within 90 days of the
owner or operator's knowledge of the
statistically significant increase.
As indicated earlier in this preamble,
the appearance of hazardous
constituents below the treatment zone
does not in itself constitute .a violation
of the regulations. (This is analogous to
the fact mat a landfill liner which has
been designed not to leak does not
violate the design standards if the liner
fails at some future time.) Under the
regulatory strategy in these regulations,
contaminants that are not controlled by
the design and operating measures will
be addressed by the monitoring and
response.program in Subpart F.
7. Recordkeeping (Sections 264.279).
Today's rules state that the operating
record for the unit (as required in
§ 264.73) must include information on
the dates and rates of the application of
hazardous wastes. Waste application
dates and rates are two vital factors, as
discussed earlier in this preamble,
which the owner or operator must
carefully track arid manage in order to
achieve proper waste treatment
8. Closure and Post-closure Care
(Section 264.280). The closure and post-
closure care requirements in today's
.regulations are quite similar to those
that are required in the interim status
regulations. The interim status
regulations, however, expressed the
requirements as a set of considerations
that were designed to achieve general
environmental objectives stated in the
regulations. Today's regulations state
the general design and operating
"considerations" as actual duties that
the owner or operator must meet. Those
duties are designed to achieve the same
general environmental objectives as the
interim status requirements.
During the closure period the owner or
operator must continue the operating
practices that are designed to maximize
degradation, transformation, and
immobilization at the unit. Operating
practices designed to maximize
treatment include tilling of the soil,
control of soil pH and moisture qontent,
and fertilization. These practices must
generally be continued throughout the
closure period. In addition, during the
closure period, the owner or operator
must continue those practices that were
designed to minimize run-off from the
treatment zone and to control wind
dispersion (if needed). The run-on .and
run-off systems must be maintained. The
owner or operator must also adhere to
the restrictions on food-chain crops
specified in the permit.
The owner or operator must continue
to operate the unsaturated zone
monitoring program as provided for
under §264.278 with one exception. Soil-
pore liquid monitoring may be
terminated 90 days after the last
application of waste at the unit. EPA
expects that the fast-moving
constituents that the soil-pore liquid
monitoring system is designed to detect
should migrate out of the treatment zone
soon after these constituents are applied
if they are to migrate at all. EPA
believes that any such migration is
likely to occur in less than 90 days after
the waste is applied. After the 90 days,
the soil-core monitoring program
becomes the principal mechanism for
detecting migration out of the treatment
zone.
The major element of the closure
procedures at a land treatment unit is
the placement of a vegetative cover that
is capable of maintaining growth
without extensive maintenance. Section
264.280(a)(8) requires the owner or
operator to establish a vegetative cover
at such time that the cover will not
substantially impede degradation,
transformation, or immobilization of
hazardous-constituents. Thus, the
vegetative cover must not be established
until sufficient treatment has occurred
so that the placement of the cover and
termination of certain operating
practices (e.g., tilling) will not
substantially inhibit treatment
processes.
Once the vegetative cover is
established, certain general practices
designed to maximize treatment
processes (e.g., tilling) cannot be
conducted without damaging or
destroying the vegetative cover. Such
practices should not, therefore, continue
once the cover is established.
Accordingly, today's regulations provide
in § 264.280(a)(l) that those practices
aimed at enhancing degradation,
transformation, and immobilization of
hazardous constituents that would be
inconsistent with the establishment of
the vegetative cover under
§ 264.280(a)(8) should not be continued
once the cover is established.
A vegetative cover consists of any
plant material established on the
treatment zone to provide protection
against wind or water erosion, or to aid
in the treatment of hazardous
constituents. The major function of the
vegetative cover during closure and
post-closure care is to minimize wind
and water erosion. Perennial grasses are
often used because they can be rapidly
established into a thorough cover.
However, the best suited plant species
will depend on the season and region of
the country. Agronomists from the State
Agricultural Extension Service, USDA,
or nearby universities can be valuable
sources of information regarding crop
selection and cultivation practices
which are best suited to a given region.
Section 246.115 of the general
requirements for closure requires that
the owner or operator submit a
certification from an independent
registered professional engineer that a
unit has been closed in accordance with
the approved closure plan specified in
the permit. In the case of land treatment
units, EPA believes that a qualified soil
scientist should be as qualified as a
professional engineer to evaluate the
adequacy of such measures as
vegetative cover. Therefore, today's
regulations provide that an independent
qualified soil scientist may make the
certification.
During the post-closure care period,
the owner or operator must continue
many of the activities required during
the active life (including the closure
period). These include control of wind
dispersal, maintenance of run-on and
run-off systems and continuance of
food-chain crop restrictions. The owner
or operator must also continue soil-core
monitoring but may suspend soil-pore
liquid monitoring 90 days after the date
of the last waste application. (This time
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32331
•period may have already passed during
the closure period.) In addition, the
vegetative cover established during
closure must be maintained.
The owner or operator must also '
continue to take actions that foster
degradation, transformation and
immobilization processes in the
treatment zone. These operating
measures must be tempered somewhat
during the post-closure care period.
Only those measures that do not
interfere with the other post-closure care
requirements should be continued. Thus,
the application of lime to maintain the
pH in the treatment zone is an
acceptable practice but tilling of the soil
that destroys the vegetative cover at the
unit should not be continued. The
Regional Administrator may wish to
state In the facility permit, the level of
treatment, particularly degradation or
transformation, required at a particular
site prior to the start of post-closure
care. This would greatly influence the
type and extent of actual "treatment"
activities necessary during the post-
closure care period and may assure
greater control over completion of these
treatment processes. Guidance for
specification of levels of treatment is
provided in the RCRA Land Treatment
Guidance Document. (See Section Vn.G.
of this Preamble.)
The post-closure care regulations also
set out a variance that would allow the
owner or operator to be relieved from
compliance with the post-closure care
requirements as well as the closure
requirement for establishment of a
vegetative cover. This variance can be
obtained if the Regional Administrator
finds, based on a demonstration by the
owner or operator that the level of
hazardous constituents within the
treatment zone does not exceed the
background values for those
constituents by statistically significant
amounts. Such a demonstration may be
made at any time after the last
application of waste is made at the unit,
The sampling and data evaluation
standards, including the requirements
for evaluation of statistical significance,
are specified in today's rules. These
requirements are almost identical to
corresponding standards contained in
§ 284.278. They include only soil
monitoring and analysis, however, not
' soil-pore liquid monitoring.
It is important to note that an owner
or operator who can successfully make
the showing that hazardous constituents
are no longer present in the treatment
zone at statistically significant amounts
may be eligible for a further exemption
during the post-closure care period. If
the owner or operator can also
demonstrate that no hazardous
constituents have migrated below the
treatment zone during the active life of
the land treatment unit, there is little
prospect that corrective action measures
under Subpart F would be necessary.
Accordingly, the regulations provide
that an owner or operator that can make
both such demonstrations to the
Regional Administrator may be
exempted from Subpart F.
9. Special Requirements for Ignitable
or Reactive Waste (Section 264.281). As
is required for the other types of land
disposal units, today's regulations
restrict land treatment of ignitable and
reactive waste. The rationale for this
provision is the same for land treatment
as it is for the other types of disposal
units.
10. Special Requirements for
Incompatible Wastes (Section 264.282).
As is required for other types of land
disposal units,, today's regulations
restrict land treatment of incompatible
waste. The rationale for this provision is
the same for land treatment as it is for
the other types of disposal units. It
should be recognized, however, that one
way a waste is incompatible with a land
treatment unit occurs when it operates ,
to undermine treatment processes in the
treatment zone [e.g., by destroying
microbial populations).
I. Landfills (Part 264, Subpart N)
Subpart N contains the design and
operating standards for landfills used to
dispose of hazardous wastes. The basic
requirements are: (1) A liner to prevent
migration of wastes out of the landfill
and into the subsurface soil or ground
water or surface water during the
landfill's active life (with an exemption
for existing portions, such as cells, or
trenches that already contain wastes);
(2) a leachate collection and removal
system; (3) control of run-on and run-off;
and (4) capping the wastes at closure
and conducting post-closure care. An
exemption from the ground-water
protection requirements of Subpart F is
provided for landfills that .have double
Liners and leak detection systems. A
waiver of the liner and leachate
collection and removal requirements is
provided if the owner or operator
demonstrates to the Regional
Administrator that hazardous
constituents will never migrate from the
landfill into ground or surface water.
Many of the features of the Subpart N
regulations (liners; leachate collection
and removal systems; and double liners
and leak detection systems installed to
qualify for exemptions from Subpart F)
are explained in the general discussion
of design'and operating standards (see
Section VILE, of this preamble) or in the
discussion of analogous provisions in
* Subparts K and L for surface
impoundments and piles (see Section •
VII.F. and VH.G. of this preamble). They
will not be discussed again here. The
few remaining issues that are unique to
landfills will be discussed below.
1. Special Requirements for Ignitable
or Reactive Wastes and for
Incompatible Wastes (Sections 264.312.
and 264.313). Sections 264.312 and
284.313 are based upon the analogous
Part 265 interim status standards.
Section 265.312 was amended on June
29,1981, and § 264.312 is based on the
amended version. A discussion of the
basis for the current restriction on
landfilling ignitable and reactive wastes
is set form in the preamble to those
standards at 46 FR 33402 (June 29,1981).
2. Special Requirements for Liquid
Waste (Section 264.314). Section 264.314
restricts the disposal of liquids in
landfills. It is based upon the analogous
Part 265 interim status standards,
including portions which were recently
promulgated on March 22,1982 (47 FR
12316).
• 3. Special Requirements for
Containers (Section 284.315). Section
264.315 provides that containers (except
for very small containers) must be either
(1) at least 90 percent full when placed
in a landfill, or (2) crushed, shredded, or
similarly reduced hi volume to the
maximum practical extent before burial
in the landfill. The purpose of the rule is
to minimize subsidence in the landfill
resulting from decaying containers
having void spaces.
The analogous interim status standard
in § 265.315 provides only that an empty
container must be crushed, etc., before
placement in the landfill. However, it
fails to define the term "empty" (and
"full") and to address the subsidence
that may be caused by the disposal of
partially empty containers. Today's
promulgation of § 264.315 (and the
proposal of a parallel modification of
§ 265.315) addresses these regulatory
gaps.
In the February 5,1981 proposal, EPA
proposed that to be considered full,
containers have either 3 inches or less of
void space or 10 percent or less volume
of void space, whichever is less. Some
commenters argued for less stringent
numbers. Other commenters argued that
crushing or shredding empty containers
is impractical. These commenters did
not provide EPA with data to support
their comments.
The Agency believes that by allowing
only full containers or those that have
been crushed or otherwise reduced in
void space to be placed in a landfill,
disruptive subsidence of the final cover
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
resulting from the placement of partially
filled containers in landfills can be
avoided. The Agency disagrees with the
commenter who suggested that crushing
or shredding empty containers is
impractical. Several landfills are
currently doing so and container
crushing equipment is readily available.
Those owners or operators having
containers which are partially filled may
either (a) fill them to greater than 90
percent of their capacity, (b) empty them
and then crush or shred them to the
maximum extent practical,, or, (c) to the
extent technology and safety allow,
reduce the volume of the partially full
containers. The provision allowing
landfilling of containers that are 90% full
means that there could be about 4
inches of void space in the typical 55-
gallon drum.
The Agency would prefer to set a
performance limit on the required
effectiveness of volume reduction and
has considered imposing a requirement
limiting maximum remaining void space
after crushing to 10 percent of the
precrushed volume. EPA presently lacks
the data necessary to determine the
practicality of such a limit. The Agency
is, therefore, seeking comment,
particularly from those currently
crushing drums and those manufacturing
crushing equipment, as to what numeric
performance level may practically be
required.
One commenter suggested that all
containers which are so small that void
spaces in them would not significantly
affect the stability of a landfill should be
allowed. The Agency agrees and is,
therefore, exempting very small
containers, such as an ampule.
' 4. Disposal of Small Containers of
Hazardous Waste in Ovecpacked Drums
(Lab Packs) (Section 264.316). Section
264.316 provides that small containers of
hazardous wastes in overpacked drums,
commonly known as "lab packs," may
be placed in landfills if certain .
requirements are met. This provision
allows disposal of ignitable or liquid
wastes in drums in accordance with
these special conditions. This regulation
is based upon the recently promulgated
interim status standard for lab packs (46
FR 56592, November 17,1981).
/. Interim Status Conforming Changes
(Part 265)
Some of the regulations promulgated
today in Part 264 suggest conforming
changes to parallel sections of Part 265.
The Part 265 requirements were
previously promulgated in interim final
form and interested parties have
commented on them. The changes made
today are necessary to ensure
consistency in application of policy
decisions or to ensure a lack of conflict
between the provisions of the two parts.
Some changes, however, must be
proposed because they contain
significant changes to existing rules and
the public has not had an opportunity to
comment on the appropriateness of
applying them during the interim status
period. These are proposed in another
section of today's Federal Register.
A careful side-by-side reading of the
Part 264 rules promulgated today and
the existing Part 265 rules, will identify a
number of additional differences which
are not substantive. Most of these
differences are necessary because Part
265 is intended to be largely self
implementing, whereas the Part 264
requirements are implemented with
substantial interaction with the Agency
through the permitting process.
Therefore, conforming changes have not
been made to address those differences.
Some other differences represent EPA's
effort to make the new Part 264
requirements more easily understood.
Conforming changes that are solely a •
matter of exposition are not made in this
rulemaking (except when associated
with some other change].
1. Waste Piles—Containment (Section
265.253). In the Part 264 regulations, the
addition of the 25-year storm event as
the design criterion for run-on and run-
off control systems resulted from
comments on the interim status and
permitting requirements which contain
only narrative design criteria. EPA has,
therefore, adopted the same storm event
as the design criterion for interim status
as well. The Agency has also adopted as
an interim status requirement the Part
264 provision that run-off collection
systems be emptied expeditiously to
maintain capacity.
2. Waste Piles—Closure and Post-
closure Care (Section 265.258). The
interim status requirements for waste
piles contained no closure requirements.
At the time they were written, the
Agency thought that the requirements
would be obvious. Since the rules
applied only to storage piles, the wastes
would have to be removed at closure in
accordance with Subpart G. Any pile
which would remain at closure is
considered to be a landfill and would be
subject to the closure and post-closure
requirements of Subpart N. However,
some comments and questions received
by EPA indicated some confusion on
this point. Therefore, a section to clarify
the closure requirements is being added
to both the Part 264 standards and to the
interim status requirements.
3. Land Treatment—General
Operating Requirements (Section
265.272). This section is being changed
to add the 25-year storm design criterion
for run-on and run-off control systems
and to require them to be emptied or
managed expeditiously to prevent
successive storm events from filling
them up, reducing available capacity.
The same changes are being made to the
pile requirements (see paragraph 1
above), and the rationale is the same as
for the corresponding Part 264 changes.
In addition, a requirement is being
added to ensure control of wind
dispersal of particulate matter at land
treatment units. A similar requirement is
contained in the requirements for waste
piles and landfills. The Part 265
requirements currently contain a
requirement that the owner or operator
must consider wind dispersal controls
as a part of closure.
4. Land Treatment—Food Chain
Crops (Section 265.276). Previously, this '
section of Part 265 required that future
property owners be notified by a
stipulation in the land record or property
deed which stated that food chain crops
should not be grown due to a possible
health hazard. One commenter on the
May 19,1980 standards suggested that
the stipulation state that, rather than not
allowing food chain crops to be grown
on the site in the future, food chain
crops could be grown but only in
compliance with the requirements of
§ 265.276(c)(2). The Agency agrees with
this commenter, as it believes that
compliance with § 265.276(c)(2)
whenever food chain crops are grown
provides adequate public health and
environmental protection.
5. Land Treatment—Recordkeeping
(Section 265.279). The redundancy
caused by the inclusion of certain
recordkeeping requirements in both
§§ 265.73 and 265.279 has been
eliminated. Since records are required
under § 265.73 of the quantity and
location of each hazardous waste placed
in the unit, there is no need for the same
requirements to appear in § 265.279.
Section 265.279 now only addresses the
keeping of records on hazardous waste
application dates and rates. These are
additional recordkeeping requirements
to those specified in § 265,73.
6. Land Treatment—Closure and post-
closure care (Section 265.280). Several
changes have been made to the closure
and post-closure care requirements of
§ 265.280 in order to make the interim
status requirements more consistent
with the closure and post-closure care
requirements for land treatment units.
In today's rules, under § 265.280(d),
several monitoring, maintenance, and
control activities are required of land
treatment unit owners or operators
during the closure period. These are, for
the most part, extensions through
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32333
closure of activities which are required
during earlier unit operations. The
unsaturated zone monitoring system
must be maintained and operated in
compliance with specifications to be
provided in the closure plan. (As in the
Part 264 regulations, the owner or
operator may terminate soil-pore water
monitoring 90 days after the last waste
application.) The run-on and run-off
management systems required under
§ 265.272 (b) and (c), respectively, must
be maintained. These new requirements
constitute minimum operation and
maintenance standards for unit closure
and replace the earlier § 265.280
standards requiring that these
operations only be "considered" for
inclusion in the closure plan. In addition,
control of wind dispersal of hazardous
waste during closure (as well as post-
closure) is now required.
In response to a comment received on
the May 19,1980 standards, today's
rules allow the use of an independent •
qualified soil scientist to verify that the
unit has been closed in accordance with
the specifications in the approved
closure plan. A qualified soil scientist
will have a knowledge of the factors
most likely to influence the fate and
.transport of hazardous waste
constituents in the soil.
The existing 8 265.280 requirement
that the unsaturated zone monitoring
system be operated and maintained
during the post-closure care period is ,
also being revised today. Under today's
rules, both Parts 264 and 265, only soil
core monitoring and not soil-pore wafer
monitoring is required during the post-
closure care period. Because waste is no
longer being applied to the unit during
the post-closure care period, the Agency
believes that soil-pore water monitoring,
which is primarily intended to detect the
movement of the more mobile hazardous
constituents, is unnecessary. Soil-core
monitoring should provide all the
monitoring information necessary to
determine whether hazardous
constituents are migrating toward
ground water during the post-closure
care period.
7. Land Treatment—-Special
requirements for ignitable or reactive
> waste (Section 265,281). In response to a
comment on the May 19,1980
regulations, a paragraph has been added
to § 265.281 to allow the land treatment
of ignitable or reactive wastes if they
are protected from conditions leading to
Ignition or reaction. This clause provides
greater flexibility to the owner or
operator. The Agency does not think,
however, that such ignition, or
especially reaction, can be prevented
very easily in a land treatment unit
unless the wastes were rendered non-
ignitable or non-reactive.
8. Landfills—General operating
requirements (Section 265.302). As with
the waste pile and land treatment
regulations, the interim status
requirements for landfills are being
modified to adopt the 25-year storm
criterion for design of run-on and run-off
control systems (see paragraphs 1 and 3
above). The common sense requirement
that these systems be expeditiously
emptied after storms to maintain
capacity has similarly been added.
9. Landfills—Special requirements for.
ignitable or reactive wastes (Section
265.312). As a result of a delayed
compliance date for the restriction on
landfilling of liquid waste in containers
(§ 265.314(c)), the language in the
regulations respecting ignitable waste is
more complicated and confusing than is
necessary. Accordingly, these provisions
have been simplified in both Parts 264
and 265. The change divorces
consideration of the physical state of the
waste (i.e., whether it is a liquid or a
solid) from the management
requirements regarding its ignitability.
Requirements respecting ignitability are
covered in §§ 264.312 and 265.312, and
those requirements relating to liquids
are covered in § § 264.314 and 265.314.
This does not represent a substantive
change, only a clarification. Previous
rulemaking actions on this topic have
indicated EPA's intent to address the
problems associated with the ignitable
characteristic pf a waste under § 265.312
and the liquid nature pf a waste under
§ 265.314. The restrictions on liquid
wastes in general, coupled with the '
requirements that ignitable wastes be in
containers when landfilled, as a
practical matter, result in a virtual ban
on the landfilling of liquid ignitable
wastes.
10. Landfills—Special requirements
for liquid wastes (Section 265.314). The
standards adopted in § 264.314
concerning the acceptance of bulk
liquids in landfills are slightly different
from the interim status requirements
promulgated May 19,1980. The language
has been changed to specify that bulk
liquids can be placed in landfills only
when the facility is equipped with a
liner system (underline! and leachate
collection system) that meets the
requirements of the regulations '
(§ 264.302(a)). The same, change is also
being made to the interim status
requirements (§ 265.314). The new
language replaces the May 19,1980
requirement that a facility receiving bulk
liquids have a liner system which is
chemically and physically resistant to
the liquid and a functioning leachate
detection system capable of removing
the percolating liquids. Since that
requirement does not specify the design
or required effectiveness of the liner
system in any way, the Agency is
concerned that a substantial portion of
the added liquids would be allowed to
pass through the liner and escape. The
changes made today specifying
compliance with the liner performance
standards of Part 264, will ensure that
bulk liquids will be placed in landfills
only when the liner system has been
designed to fully contain the wastes so
that all leachate can be collected and
removed. According to EPA's
information, only a relative few existing '
landfills are equipped with appropriate
liners and leachate collection units.
Therefore, bulk disposal of liquids in
many existing landfills may be curtailed
upon the effective date of these
requirements, at least until new,
appropriately designed cells can be built
at those landfills.
K. Permitting Requirements (Part 122)
On May 19,1980, EPA promulgated
the consolidated permit regulations (40
CFR Part 122,45 FR 33418) which
include requirements for permitting
hazardous waste management facilities
under RCRA. Owners and operators of
facilities which treat, store, or dispose of
hazardous waste must obtain permits
from EPA, and EPA must issue those
permits in accordance with the Part 122
and Part 124 regulations.
1. Introduction. Part 122 provides for
a'two-part hazardous waste permit
application; Part A and Part B.
Requirements for the content of Part A
of the permit application remain
unchanged from the May 19,1980
promulgation. (40 CFR 122.24, 45 FR
33434). Requirements for the content of
Part B of the permit application were '
amended January 12,1981 (40 CFR
122.25, 46 FR 2889) to provide specific
information requirements for owners
and operators of hazardous waste
treatment and storage facilities. Today's
. amendments to § 122.25 specify the
contents of Part B of the permit . .
application for new and existing waste
piles, surface impoundments, land
treatment units, and landfills. In order to
receive a RCRA permit for any of these'
types of units, owners or operators must
submit sufficient information in Parts A
and B to enable EPA to determine
whether the unit is in compliance with
the Part 264 standards, or for a new unit,
whether it will be in compliance with
those standards.
2. Background. On May 19,1980, EPA
promulgated certain general regulations
under Parts 264 and 122 applicable to
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32334 Federal Register / Vol. 47, No. 143 /Monday, July 26, 1982 /. Rules and Regulations
hazardous waste management facilities
to be permitted under RCRA (45 FR
33221, 33434). The Part 264 regulations
contained administrative and technical
standards for operating permitted
facilities. The Part 122 regulations,
among other things, specified what
information owners or operators of
facilities had to submit to EPA in their
permit applications to demonstrate their
compliance with the Part 264 standards.
Sections 122.4,122.24 and 122.25 set "
forth the required content of Parts A arid
B of the permit application, respectively.
On January 12,1981, EPA
supplemented the May 19,1980 rules by
promulgating specific standards for
several types of hazardous waste
treatment and storage facilities, among
them surface impoundments and waste
piles (Part 264, Subparts K and L, 46 FR
2868-2872). At that time, EPA also
added companion requirements to
§ 122.25, directing permit applicants for
treatment and storage facilities to
submit information in their Part B's
pertinent to the new Part 264 standards
(46 FR 2889-2891).
On February 13,1980, EPA
promulgated temporary standards for
permitting new land disposal facilities
(40 CFR Part 267, 46 FR 12429). Those
regulations included technical and
administrative requirements for new
disposal surface impoundments, new
land treatment units, and new landfills.
No specific permit application
requirements were promulgated at that
time.
As explained earlier in this preamble,
today's amendments to Part 264
Subparts K, L, M and N subsume and
replace the specific standards for
surface impoundments, waste piles, land
treatment units, and landfills as
promulgated January 12,1981, and
February 13,1981. Similarly, today's
new Part B permit application
requirements subsume and replace the
Part B requirements of January 12,1981,
for surface impoundments and waste
piles, and add new Part B requirements
for land treatment units and landfills.
3. Contents of Part B for Surface
Impoundments, Waste Piles, Land
Treatment Units, and Landfills. "The
required content of Part B of the permit
application is specified in three
subsections in § 122.25. Paragraph (a) •
lists general information required for all
types of units. Paragraph (b) lists
information required for individual
types of units (e.g., waste piles,
landfills). Paragraph (c) lists ground-
water monitoring information required •
for surface impoundments, waste piles,
land treatment units, and landfills.
Section 122.25(a) remains
substantially unchanged from the
January 12,1981 promulgation.
(Conforming cross-references have been
added to paragraphs (a)(5) and (a)(13).)
Thus, applicants for RCRA permits for
waste piles, surface impoundments, land
treatment units, and landfills must
address in their Part B permit
applications the general information •
requirements (paragraph (a)) published
in the January 12,1981 Federal Register,
as wefl as the specific information
requirements (paragraph (b)) published
today for each respective unit type, and,
where applicable, the ground-water
monitoring information requirements
(paragraph (c)) published today. Part B
requirements pertaining to ground-water
monitoring apply to all four types of
units unless they are exempted by
§ 264.90 (applicability of Subpart F).
As in the January 12,1981,
promulgation of § 122.25(b), today's
specific Part B requirements are each
tied to a Part 264 standard and,
wherever possible, parallel the structure
of the respective Subparts in Part 264. In
general, the Part B requirements in
today's rules state the form and subject
matter of the information required (e.g.,
detailed plans of liner systems) and
refer to the companion regulation in Part
264 which is germane to the permit
application. , . ,
In the Part B submission, the permit
applicant must submit information in
sufficient detail to enable the Regional
Administrator to judge whether the unit
will be in compliance with the Part 264
standards, and thus eligible for a RCRA
permit. The applicant must address each
aspect of design and operation included
under individual Part 264 standards. For
example, § 122.25(b)(7)(ii) requires that
detailed plans and an engineering report
be submitted which describe the liner
system to be used in a landfill, as
required under § 264.301. Section 264.301
lists, among other things, a number of
design standards for liners, including the
strength, thickness, and chemical
properties of the liner material. Each of
these characteristics of the liner
material must be addressed in the Part B
submission for landfills. If the applicant
submits a Part B which does not address
each requirement with enough detail so
that the Director1 can make an informed
judgment as to whether the unit will
meet the Part 264 standards, the
applicant will be asked to clarify his
submission by providing more
information (see § 124.3(c)).
•The term "Director" is used in EPA's permitting
regulations to mean the Regional Administrator in
any State where EPA is running the RCRA
hazardous waste program, and the State Director in
any State with authorization to run its hazardous
waste program [or a part of its program) in lieu of
EPA's running the Federal program.
4. When to Submit Parts A andB, As
provided in § 122.21 hi EPA's May 19,
1980 hazardous waste regulations (45 FR
33432), the submission of Part A of the
permit application is a condition of
'^interim status" for existing hazardous
waste management facilities. That
regulation further provides that the
Director shall set a date, giving at least
six months notice, for submission of Part
B of the permit application for existing
facilities. Therefore, owners and
operators of existing facilities are not
required to submit Part B until requested
by EPA, although they may voluntarily
submit Part B of the permit application
before it has been requested by EPA.
Owners and operators of new facilities
must submit Part A and Part B of the
permit application at least 180 days
before physical construction is expected
to commence. Owners and operators
may not commence construction of new
facilities until a permit has been issued.
5. Special Permitting Procedures for
Land Treatment Units. Section 264. 272
provides that a treatment demonstration
must be made prior to the permitting of
any land treatment unit. The purpose of
the treatment demonstration is to show
that hazardous constituents hi the waste
can be completely degraded,
transformed, or immobilized in the
treatment zone. The § 264.272
requirements allow the owner or
operator to use, among other means,
field tests or laboratory analyses to
make the treatment demonstration.
Therefore, the owner or operator of a
new land treatment unit, or the owner or
operator of an existing unit who wants
to land treat new waste, needs the
opportunity to use field tests or
laboratory analyses to make this
demonstration. However, field tests and
laboratory analyses can only be
performed under a permit because they
involve the treatment and disposal of
hazardous waste.
Paragraph (c) has been added to
§ 122.27 to allow an owner or operator
who needs to make a treatment
demonstration to obtain a phased permit
which will cover not only the field test
.and laboratory analyses but also facility
construction and operation. In this way,
the owner or operator may not have to
obtain a permit separate from the actual
facility permit to conduct field tests or
laboratory analyses. If the Director
finds, based on the information
submitted by the owner or operator in
Part B of the permit application for a
land treatment unit, that substantial
information exists upon which to base
the issuance of an operation permit (i.e.,
the applicant has submitted information
indicating a likelihood that he can
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32335
achieve complete treatment at his
facility), the Director may issue a two-
phase facility permit.
The issuance of a two-phase facility
permit would avoid the necessity of two
separate permitting procedures—the
first for permitting the field tests or
laboratory analyses for the treatment
demonstration, and the second for
design, construction, operation, and
maintenance of the actual land
treatment unit. However, if the Director
finds that owner or operator has not
submitted substantial information
indicating a likelihood that he can
achieve complete treatment at his
facility [based, for example, on land
treatment of very similar waste) a two-
phase facility permit will not be issued.
In this latter case, the owner or operator
must apply for and receive a
demonstration permit to conduct the
field tests or laboratory analyses and
perform these tests or analyses prior to
the Director's consideration of a-facility
permit. Section 122.27(c)(l) provides that
a demonstration permit need only
contain conditions implementing the
requirements of § 264.272(c). Thus the
conditions that would be included in
any demonstration permit would be the
same as those that would be included in
the first phase of a two-phase land
treatment facility permit. Minimum
conditions are specified, but the Director
may include any conditions he finds
may be necessary to protect human
health and the environment.
An owner or operator who wants to
receive a two-phase permit to
accommodate conducting field tests or
laboratory analyses, must include a
treatment demonstration plan in Part B
of his permit application. See
§ 122.25[b)(6)(i). The demonstration plan
must propose that the field tests or
laboratory analyses be performed under
conditions similar or directly relating to
those present in the treatment zone of
the unit. Specific conditions for which
similarity or direct relevance are
necessary are listed in § 264.272(c).
These include: waste characteristics,
climate, topography, soil characteristics
(including treatment zone depth), and
operating practices (including
unsaturated zone monitoring). It is
important to note that any waste
constituents listed in Appendix VIII of
Part 261 that are reasonably expected to
be in, or derived from, waste to be land
treated at the actual unit are those
constituents for which a treatment
demonstration is required. An owner or
operator may, of course, use a
combination of field tests, and
laboratory analyses, and other data to
demonstrate that all Appendix VIII
constituents contained in the waste can
be treated completely.
Following receipt of the Part B
application, including the treatment
demonstration plan, the Director will
process the two-phase facility permit
completely through the Part 124
procedures, including preparation of a
draft permit and an opportunity for
public comment and hearing, assuming
he has enough information on which to
base draft permit conditions for the
design, construction, operation and
maintenance of the unit. After
completion of this process, and if the
Director deems it appropriate, the two-
phase facility permit will be issued. The
first phase of the permit will become
effective as provided in § 124.15(b). The
second phase will not be effective until
after the owner or operator has
successfully completed the treatment
demonstration and the Director has
• made any modifications necessary to
ensure compliance with all Subpart M
requirements.
Included in the first phase of the
permit will be the conditions for
performance of the treatment
demonstration. The conditions will be
established based upon the treatment
demonstration plan submitted by the
owner or operator. These permit
conditions will include design and
operating parameters (including the
duration of the tests or analyses and, in
the case of field tests, the horizontal and
vertical dimensions of the treatment
zone), monitoring procedures, post-
demonstration clean-up activities, and
all other Part 264 requirements which
the Director finds appropriate. In order
for the owner or operator to proceed
with actual construction and operation, "
i.e., proceed into phase two of the
permit, it is necessary that he complete
the treatment demonstration
satisfactorily.
The Director will include, as
conditions in the second phase of the
facility permit, all Subpart M
requirements pertaining to unit design,
construction, operation, and
maintenance, as well as all other
applicable Part 264 requirements. The
Director will establish the conditions in
the second phase of the permit based
upon the substantial but inconclusive or
incomplete information contained in the
Part B application.
Following completion of the field tests
or laboratory analyses, the owner or
operator must submit to the Director a
certified statement, signed by a person
authorized .to sign a permit application
or report under § 122.6, that the tests or
analyses were carried out in accordance
with the conditions specified in phase
one of the permit. All data collected
during the field tests or laboratory
analyses must also be provided to the
Director.
The Director will then determine
whether the results of the field tests or
laboratory analyses, together with any
other data submitted by the owner or
operator relevant to the treatment
demonstration, meet the requirements of
§ 264.272, i.e., that the hazardous
constituents in the waste can be
completely degraded, transformed, or
immobilized under conditions similar to
those of the treatment zone. If the
Director determines that the hazardous
constituents can be completely treated,
he will (1) modify the second phase of
the permit to incorporate any additional
requirements which he finds will be
necessary for operation of the unit in
compliance with Part 264, Subpart M,
based upon the data from the completed
treatment demonstration and (2) make
the second phase of the permit effective.
The permit modification to include
changes based upon the completed
treatment demonstration may proceed
as a minor modification under § 122.17,
if any such change is minor. Otherwise,
it will proceed as a permit modification
under § 122.15(a)(2).
The Agency thinks that adjustments
to a number of the operating procedures
at land treatment units will, in many
cases, be considered minor
modifications. For example,
modifications to (1) waste application
rate, technique, or frequency, (2) liming
or fertilization practices, or (3) tilling
depth and frequency would usually be
considered minor modifications, except
where there were substantial increases
in the waste application rate or
frequency. Examples of modifications
likely to be considered "major" -include
significant changes in (1) characteristics
of the land treated wastes (e.g., moisture
content) and (2) treatment zone
characteristics (e.g., depth of soil, soil
texture, slope).
If the results of the first treatment
demonstration are inconclusive and the
owner or operator wants to do
additional field tests or laboratory
analyses, the Director may modify the
permit (whether it is an individual
permit that covers only a treatment
demonstration or whether it is the
treatment demonstration phase of a
two-phase permit) to authorize such
additional tests, incorporating in the
permit those terms and conditions
necessary to meet § 264.272(c} '
requirements. The modification of a
permit to allow a second treatment
demonstration may be made 35 a minor
modification, provided the conditions
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32336 Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations
for the second demonstration are
substantially the. same as the conditions
for the first demonstration.
A permit applicant seeking a.
demonstration permit (rather than a
two-phase facility permit) must also
submit a treatment demonstration plan
in Part B of his application. Such a
permit applicant should consult with the
Director before submitting his Part B
information because the Director may
allow him to submit less information hi
bis Part B application than would be
required for a two-phase facility permit.
Once a complete application has been
received, the Director will process it
under the Part 124 procedures using the
substantive standards in § 264.272(c).
6. Clarification of the Scope of the
RCRA Permit Requirement. EPA is
today making two clarifying changes to
§ 122.21(d), "scope of the RCRA permit
requirement". The first change .clarifies
that owners and operators of hazardous
waste management facilities are
required to have permits during any
post-closure period (see § 264.117) and
any compliance period (see § 264.96)
apph'cable to their facilities, as well as
during the active life of the units
(including the closure period).
a. Post-closure Permits—EPA has
always intended that owners and
operators be required to have permits
during the active life of their units and,
for disposal units, through the
post-closure care period as well. EPA
could have issued regulations (like the
Part 265 interim status standards) that
are enforceable independent of a permit
to impose many of the requirements that
apply to a facility after closure, but
imposing standards through the permit
allows EPA and facility owners and
operators a much greater opportunity to
tailor the requirements to individual
facilities. Such individualized
requirements provide a greater
assurance of human health and
• environmental protection because they
allow site specific implementation of
general standards (such as the location
of ground-water monitoring wells).
Using a permit as the vehicle for
imposing post-closure care requirements
also means that EPA has an existing
system—the permitting procedures and
' requirements hi 40 CFR Parts 122 and
124—to use when interaction between
EPA and the facility owner or operator
is necessary during the post-closure care
period. For example, this would be
necessary if the Regional Administrator
wanted to extend the post-closure care
period under § 264.117(a)(2)(ii) because
of data obtained after facility closure.
Such interaction would also be critically
important under the Subpart F ground-
water monitoring standards
promulgated today. If an owner or •
operator found hazardous constituents
in ground water under his facility while
. doing detection monitoring, he then
would be required to establish a
comph'ance monitoring program. If he
were violating the ground-water
protection standard for his facility while
doing compliance monitoring, he would
then need to establish a corrective
action program. EPA think that the
establishment of such ground-water
monitoring programs should be done
through the permitting process. That
process ensures procedural protections
for owners and operators of hazardous
waste management facilities and also -
ensures an opportunity for public
participation as mandated under Section
7004(b)ofRCRA.
Although EPA's intent, as evidenced
in the Parts 122 and 264 regulations,2has
always been that disposal facilities are
required to obtain permits during the
post-closure care period, that was not
stated as clearly as it might have been
in the regulations. EPA is remedying that
deficiency today by amending the Part
122 regulations to expressly provide that
disposal facilities are required to get
permits for the post-closure care period.
EPA intends that all disposal
facilities, including those that close
during interim status, be required to
have post-closure permits. This is a
logical corollary to the definition of
"regulated unit" included in today's Part
264 regulations. EPA believes that, to
assure adequate protection of human
health and the environment, it is
important that any wastes disposed
after today's Part 264 standards become
effective be subject to those standards,
although the standards will not be
directly applied until a permit is issued
for the unit. The fact that an owner or
operator may close a unit or his entire
facility before EPA issues him a permit
should not preclude the Agency from
issuing a permit that incorporates
applicable Part 264 post-closure care
standards, including Subpart F ground-
water monitoring requirements.
In addition to sacrificing some
measure of human health and
environmental protection, the Agency
thinks that it would be inequitable to
allow the owner or operator of one
hazardous waste disposal unit to
operate under the less protective interim
status requirements, then close when
2 For example, § 264.118 requires a post-closure
care plan that must be approved as part of the
permitting process and becomes a condition of the
permit. Section 122.15(a)(7) notes that allowable
permit modifications include changes in the period
for post-closure care and permission to disturb the
integrity of the containment system under
§ 264.117(c).
EPA required him to submit Part B of his
permit application, and thereafter be
subject only to the interim status
requirements, while another operator
would be subject to the stricter Part 264
requirements because his Part B
application was requested earlier. Such
a system would create inequities
whereby persons whose permits were
processed last could get a significant
competitive advantage.
As noted above, today's regulations
do limit the applicability of the Part 264
regulations to "regulated units"—i.e.,
units that continue to receive wastes
after the effective date of the
regulations. To be consistent, post-
closure permits will be limited to the
same class of units. Thus, disposal units
which stop accepting waste before the
effective date of today's regulations will
not have to get permits covering the
post-closure care period. However,
those disposal units that continue to
receive waste after the effective date of
today's regulations will be required to
have post-closure permits, even if they
close before receiving an initial RCRA
permit.
A conforming change to § 122.10,
Schedules of compliance, is also being
made to clarify how and when permit
applicants or permittees cease
conducting regulated activities at
hazardous waste disposal facilities. The
change to that section points out that
owners and operators of treatment and
storage facilities have closure
responsibilities and that owners and
operators of disposal facilities have both
closure and post-closure responsibilities.
b. Permits for Individual Units. The
second change EPA is making to the
scope of the RCRA permit requirement
clarifies that EPA can issue or deny a
permit to one or more units at a facility
without affecting the interim status of
any remaining units for which a permit
has not been issued or denied. EPA
normally would permit all of the
hazardous waste management activities
at a facility simultaneously but there
may be circumstances where this would
be impossible or undersirable. For
example, an owner or operator might
want to add a new surface
impoundment to his facility, but he may
also be storing hazardous waste in an
underground tank that cannot be
entered for inspection, a process for
which EPA has not issued permitting
standards. In such a situation, EPA
would want to be able to proceed with
permitting the new surface
impoundment without affecting the
interim status of any unpermitted units
such as the facility's underground tank.
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Federal Register / Vol. 47, No. 143 / Monday, ]uly 26, 1982 / Rules and Regulations ,32337
The Agency is making a conforming
change to § 122.15(a)(7) to provide that
any permit issued to a facility for less
than all of the units at the facility may
be modified to include conditions
applicable to units that are permitted
later.
7. Changes to the Conditions Under
Which EPA May Modify Permits, EPA
is today adding four causes for permit
modification to § 122.15(a)(7) (in
addition to the conforming change
described above) and three causes for
minor permit modifications to
§ 122.l7(e). The circumstances under
which these causes for modifications
would be invoked are discussed in the
preamble to the accompanying
regulations in Subparts F and M of Part
264.
8. Request for Part 122 Comments.
Today's amendments to § § 122.10,
122.15,122.17,122.21,122.25, and 122.27
are promulgated in interim final form.
EPA solicits comments from the public
on all of these amendments. The Agency
would especially welcome comments on
the Part B requirements for surface
impoundments, waste piles, land
treatment units and landfills, and on the
special permitting procedures for land .
treatment units. Comments pertaining
specifically to regulatory amendments to
Part 122 should be sent to "Docket
3005—permitting requirements for land
disposal facilities." The Agency will
consider all timely comments before
promulgating these regulations in "final
final" form.
VIII. General Solicitation of Public i
Comments
EPA generally solicits comment on
today's rules and their supporting
rationale provided in this preamble. On
many regulatory issues, the Agency is
particularly interested in the public's
response and has highlighted these
areas throughout the preamble. For
convenience, the areas on which the
Agency has specifically requested
comments are catalogued below. EPA
seeks comment on:
1. Requiring financial assurance for
corrective action to remedy ground-
water contamination at facilities and
how to structure these requirements.
2. Promulgating regulations that would
consist of general environmental
performance standards similar to those
contained in 40 CFR § 267.10 to be used
in permitting unique facilities that do not
fit into the descriptions of classes of
facilities we now have standards to
„ cover (containers, tanks, surface -
impoundments, waste piles, land
treatment units, landfills, and
incinerators.)
3. Exempting from Subpart F (Ground-
water Protection Standard) facilities
located over an uppermost aquifer
which is so dirty that it would never be
used for any purpose and which,
regardless of any future level of
contamination is not capable through
hydraulic connection of significantly
contaminating another usable aquifer or
surface water.
4. Factors that can be employed to
demonstrate that no adverse health and
environmental effects can potentially
result from a flood washout if a variance
from the floodplain requirement for
designing to prevent washout is to be
granted.
, 5. How to construct a statistical test
procedure that when used in a ground-
water monitoring program involving a
large number of comparisons will have
low probability of falsely identifying a
non-contaminating unit, yet provide high
probability of identifying a truly
contaminating unit.
6. How to give further specificity to
the general criteria for evaluating
statistical procedures employed' in
ground-water monitoring. •
7. Alternatives to. the coefficient of
variation in defining when ground-water
monitoring data are likely to be
normally distributed.
8. Crafting the liner and/or leachate.
collection system exemption for existing
portions of units to better address those
situations where substantial retrofitting
would not be necessary and no
exemption is warranted, and to better
handle those situations where upgrading
at an old site may provide very little
additional environmental protection and
an exemption may be desirable.
9. The decision by the Agency not to
grant a waiver from the facility closure
standards where a site may foe able to1
show location characteristics that may
make it unnecessary for ground-water
protection. (EPA still wants to have a
cover designed in accordiance with the
closure requirements, to provide air and
surface water protection.).
10. EPA's decision not to provide a
waiver now from the design and
operating requirements to any sites over
State-exempted aquifers that are
contaminated and that are not protected
under the Underground Injection Control'
Program.
11. Where seepage facilities maybe
appropriate.
12. Where small or short-term piles
not currently exempted from Subpart F
ought to be exempted;
13. The relative benefits and cost's of
designing piles and landfills, to protect
against the 25-year and 100-year storm
event.
14. The circumstances and conditions
where overflow of run-on and run-off
control systems may cause an adverse
environmental or human health impact. *
15. Exempting small, low hazard,
temporary waste piles from Subpart L
requirements.
16. Alternative statistical procedures
to be used in the conduct of unsaturated
zone monitoring at land treatment units.
17. The reasonableness of the . •
requirement that containers destined for
landfill be either (1) at least 90 percent
full or else (2) crushed, shredded, or
similarly reduced in volume.
Specifically, EPA seeks data on the
quantitative relationship between
landfill void space and subsidence. EPA
also seeks data from manufacturers and
users of drum-crushing equipment.'
18. Part B permit application
requirements for surface impoundments,
waste piles, land treatment facilities, •
and landfills, and on the special
permitting procedures for land treatment
units.
IX. Regulatory Analysis •
A. Executive Order 12291: Regulatory
Impact Analysis
Executive Order 12291 requires each
Federal agency, "to the extent permitted
by law," to prepare and consider a
Regulatory Impact Analysis (RIA) in
connection with every major rule. The
order further requires that a final RIA be
transmitted .to the Office of Management
and Budget (OMB) at least 30 days
before the Agency publishes the major
rule. EPA has determined that the land
disposal regulation promulgated today is
a major rule. However, EPA has
concluded that the existing facility
portion of this rule is exempt from the
requirement that a final RIA be
submitted to OMB 30 days prior to
promulgation. Section 8 of the Executive
Order, Exemptions, states that the
"procedures prescribed by this Order
shall not apply to:... (2)'Any
regulation-for which consideration or
reconsideration under the terms of this
order would conflict with deadlines
imposed by statute or'by judicial order."
Completing an RIA and transmitting it
•to OMB 30 days before EPA publishes
these regulations for existing facilities
would conflict with judicial deadlines. A
court order in State of Illinois v.
Gorsuch (D.D.C., Civil Action No. 78-
1689), signed on November 13,1981,
directed EPA to promulgate regulations
for existing hazardous waste land
disposal facilities on or before February
1,1982. Although the order was
temporarily stayed, the appeals court
has now ordered that these regulations
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32338 Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations
be promulgated by July 15,1982. If EPA
were to delay promulgation until
completing the RIA and transmitting it
to OMB, it would violate the deadline
ordered by the Court. Therefore, EPA is
exempt from compliance.
EPA began work on an RIA for land
• disposal facilities before November 13,
1981, but preparing the analaysis , -
requires collecting data that are
currently unavailable in-house and then
analyzing these data. The effort is now
in its data gathering stages. When
complete, the RIA will examine the need
• for the regulation, alternative -
approaches, and the costs, benefits,, and
distributional effects of the alternative
approaches. EPA expects to complete a
draft of this analysis in May of 1983, and
will consider these results to determine
whether any changes to the land
disposal standards are warranted.
Within time and data constraints, EPA
was able to address some of the
analytical requirements of the Executive
Order. The Agency prepared
preliminary estimates for the range of
costs these regulations may impose on
regulated units of particular kinds and
sizes, on facilities, and for the total costs
of the regulations. EPA then allocated
these, costs to particular waste
generating industries and compared
them to other economic parameters to
obtain measures of the relative
significance of the costs resulting from
this rule. The results are summarized in
D through H of this section:
D. Individual Unit Costs; E. Closure
Analysis; F. Total Costs; G. Industry
Analysis; and H. Sensitivity Analysis.
The docket for this rulemaking and the
EPA regional libraries contain a more
extensive report on this analysis.
Athough the Agency has not -
completed its formal benefits analysis
for land disposal regulations, it expects
these regulations to provide important
benefits. First, they will promote
' economic efficiency. By internalizing the
costs of waste management, the
regulations promote the allocation of
resources to the area of their highest
social value through the free market
pricing system. Second, they will
promote equity. Currently, people living
near hazardous waste facilities bear
some of the cost of disposal in the form
of risk of ground-water contamination
and the damages that can result to
property values and to health. These
regulations will provide-a uniform,
nation-wide protective floor that
requires the owners of hazardous waste
facilities to take steps that will reduce
the likelihood that populations will be -
exposed to harmful ground-water
contamination. They will thus shift some
of the cost of land disposal from those
who live near the sites to users of the
products that generate the waste. -
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.} requires each Federal
agency to prepare a final Regulatory
Flexibility Analysis (RFA) when it
promulgates a final rule. (5 U.S.C. 604).
The purpose of the RFA is to describe
the effects the regulations will have on
small entities and examine alternatives
that may reduce these effects. An
agency head may delay completing the
analysis for up to 180 days after
publishing the rule in the Federal
Register, if he publishes a finding that
the final rule is being promulgated in
response to an emergency that makes
timely compliance impracticable. (5
U.S.C. 608):
EPA intends to study the impact of
today's regulations on small entities.
However, as hi the case of the RIA,
developing an RFA is a difficult and
time-consuming task. EPA finds that the
court-ordered deadline constitutes an
emergency and that completing the RFA
by the Court-ordered deadline has not
been practicable. EPA will publish the
RFA within 180 days of today's
publication, in compliance with the
Regulatory Flexibility Act.
C. Paperwork Reduction Act
In accordance with the Paperwork
, Reduction Act of 1980 (44 U.S.C. 3507),
EPA will submit the reporting and
recordkeeping provisions that are
included in this final rule to OMB for
approval. They will not become
effective until EPA obtains OMB
approval. A notice of the effective date
of the reporting and recordkeeping
provisions of this interim final'rule will
be published in the Federal Register
when OMB approval is obtained.
D. Individual Unit Costs
EPA estimated unit costs using
engineering models. A number of
engineering models were developed
because the unit costs and costs per unit
of waste vary significantly with the size
and type of unit. The resulting unit costs
provide the basis for the total cost of the
design and operating standards.
Although we show costs for corrective
action following, EPA based
calculations of the total cost of
corrective action on a facility basis
rather than on a unit basis.
1. General Approach. The cost
estimation procedure for model units
has three components: estimating costs
for design and operating changes,
estimating costs for a range of corrective
action scenarios, and transforming costs
into "annual revenue requirements." All
cost .estimates are in 1981 dollars.
First, to' estimate costs for design and
operating measures, the steps owners
and operators of hazardous waste
disposal units might take to comply with
the regulations were identified. Since
some of the these measures were
already required under the Interim
Status Standards (ISS regulations), the
analysis separated these requirements
in order to estimate the cost of the
additional requirements resulting from
this Part 264 rulemaking.3 The analysis
also separated pre-ISS costs for landfills
and surface impoundments. The ISS
baseline costs used in this analysis do
not reflect state requirements.
Where the under-liner requirements of
the design and operating standards were
applicable, the Agency examined three
possibilities: (1) Owners and operators
would install only the single synthetic
liners needed under the regulations, (2)
they would install the double liner
(synthetic/clay) system suggested by the
guidance, or (3) they would install
double synthetic liners to enable them to
avoid monitoring the ground water."
Second, EPA estimated the costs of
corrective action activities using three
different timing assumptions for the
length of corrective action and two
counterpumping strategies reflecting
hydrogeologic conditions. Timing will
depend on how well units and facilities
perform, and on how quickly ground-
water quality can be restored. The
counterpumping strategy used will
reflect the judgments of owners or
operators, Regional Administrators and
State Directors; technical conditions will
affect but not control those decisions.
To keep the total number of cost cases
presented manageable a single set of
unit cost estimates and a "median" set
of hydrogeologic assumptions were
. used. The hydrogeologic assumptions
were used as averages although they do
not necessarily reflect average
nationwide conditions. EPA believes
that the values used are the best
. available for estimating total costs,
given time and resource constraints.
However, actual facility costs in
particular cases may be higher or lower
than the estimates presented in this
section. To present a more complete
picture of potential costs, the sensitivity
analyses examine the effects of varying
Key technical assumptions. In addition,
the docket report contains a more
~ detailed description of the assumptions
3 ISS requirements currently in place were used.
No adjustments were made to reflect conforming
changes to ISS regulations published with today's
rule.
-------
Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32339
used in preparing these estimates,-and
includes analysis of the sensitivity of
results to alternative unit cost
assumptions.
Third, the stream of costs over time
was converted into "annual revenue
requirements" using discounted cash
flow analysis. Annual revenue
requirements are the added revenues a
facility would have to obtain (through
increased prices for its products or for
its waste management services) in each
year of facility operation, in order to
cover the costs of these regulations. This
approach provides a consistent basis for
presenting and comparing relevant
costs. However, it implicitly assumes
that future costs can be predicted, and
recovered at an even rate over a
facility's operating life.4 Since each
facility will face great uncertainty about
corrective action costs, and different
competitive conditions, revenue
requirements estimated using this
perfect amortization assumption are not
necessarily good predictors of actual
pricing behavior under Part 264
regulations.
Because annualizing smooths uneven
cash flows, this analysis also reports
first year costs to provide an indication
of the maximum cash flow burden that
facilities could face for design and
operating requirements, and for
corrective action if necessary.
Costs for regulatory requirements
related to bulk and containerized
liquids, and the permitting process are
not included in the estimates reported
here. These costs may be significant, but
additional data are needed before
reliable estimates can be made. Costs
for floodplain standards are addressed
in the sensitivity analysis.
2. Design and Operating Standards.
To comply with the design and
operating standards, new storage and
disposal facilities and lateral
expansions of'existing units must install
liners, and in the case of piles and
landfills, leachate collection systems.
While the regulations do not absolutely
require a synthetic liner for landfills,
waste piles, and surface impoundments,
in nearly all cases, at least a single
synthetic liner is the practical result of
the regulatory requirement. Those
installing double liner systems with a
leak detection system between them are
exempt from ground water monitoring
and the other requirements of "Subpart F.
Additionally, waste piles may be placed
on a sturdy impermeable base and
regularly inspected in lieu of the
requirements of Subpart F.
Owners and operators will choose to
install the liner system that is most
advantageous for them. This will not
necessarily lead them to install the
lowest cost liner that EPA will allow,
since greater investment in the liner
system should lower the probability that
corrective action will need to be taken.
The probability that corrective action
will be needed depends on the
containment system used, and on
hydrogeologic conditions, but EPA is
currently unable to quantify these
relationships. The Agency believes that
some owners and operators will choose
each of the different liner systems,
reflecting their local hydrogeologic
conditions and their differing'estimates
of the relationship between liner
investments and the probability of
having to perform corrective action. To
indicate the range of potential liner
costs, the cost for each of the liner
systems is shown.
3. Corrective Action Costs and
Timing. The costs associated with
corrective action for a unit or facility
depend on when contamination is
discovered, the specific contaminants,
the magnitude of the plume, and
numerous site-specific hydrogeologic
factors. The Agency can estimate
corrective action costs for simple sets of
conditions, but does not know what
conditions are actually like for the
average of all facilities. For this analysis
it was assumed that ground water
begins 10 feet down, that plumes reach a
depth of 75 feet, and that the aquifer can
be characterized by "median"
hydrogeologic conditions.5
The Part 264 regulations require
removal of contamination from ground
water, at the "waste boundary" for new
plumes, and to the property boundary
for existing plumes. For this analysis,
EPA chose to make the conservative
assumption that corrective action would
need to deal with well-established
plumes. Cost estimates are based on
counterpumping, and include costs for
treating pumped water, preparing
corrective action plans, and monitoring
ground water as required in the
regulations.
Costs for corrective action are
sensitive to assumptions about when
corrective action begins and how long it
must continue in order to remove all
statistically significant contamination.
To bound the range of actual costs an
owner or operator could encounter, EPA
developed costs for three scenarios:
action beginning in year zero and
continuing 150 years,6 action beginning
in zero and continuing for 20 years, and
action beginning in year 49 and
continuing for 20 years. (The 20 year
figure was chosen to match the
assumption that operating lives are 20
years.)
The analysis also used two different
counterpumping strategies because
corrective action costs are also fairly
sensitive to the pumping strategy
required. Where hydraulic gradients are
unidirectional, (i.e., in "simple" cases)
recovery wells can be located at the
downgradient toe of the plume. This is
Strategy 1, and involves minimum costs
for a counterpumping program. The
simple conditions needed for this
approach probably are not very
common. Where hydraulic gradients are
not unidirectional,7 another strategy is
needed to assure that all contamination
is contained. Wells are located inside
the plume and pumping is maintained at
a rate sufficient to reverse all gradients
in the vicinity of the plume. This is
Strategy 2, and it involves higher costs.
The range of cost estimates that
results from these alternative
assumptions reflects EPA's uncertainty
about conditions at actual facilities."To
4 In computing annual revenue requirements a 3K
real discount rate and a twenty-year facility
operating life were used In all cases.
"Plume depths of 75 feet will be typical only for
well-established plumes; new plumes will be
shallower and less expensive to control. The
median hydrogeologic conditions used were
hydraulic gradient (change in ground water
"elevation") of 5 feet per mile, and transmissivity
(flow rate across a one. square mile cross-section,
per foot of hydraulic gradient) of 100,000 gallons per
foot per day. These assumptions result in an aquifer
discharge (total ground water flow volume) of 0.5
million gallons per square mile of aquifer cross-
section per day.
6 The discounted present value of costs incurred
over a long but finite furture period is essentially
identical to the discounted costs incurred in
pumping "forever," if costs are incurred as
expenditures are made. A corrective action period
of 150 years captures about 99% of the cost of
continuing the action forever.
'This can occur due to complex hydrogeology, the
pressure of emplaced wastes on the aquifer, or
pumping at off-site wells surrounding the plume.
6 The unit cost data, hydrogeologic assumptions
and algorithms used here to estimate containment
costs have been subjected to some peer review and
testing, and EPA believes the cost estimates that
result from use of this model are the best estimates
available at this time. However, the algorithms and
data must still be considered to be incompletely
verified and validated.
Several key assumptions should be noted. (1) A
simplified treatment cost model was used that may
significantly underestimate costs for higher
concentrations and more complex mixtures of
contaminants, and may somewhat overestimate
costs for smaller plumes and for treatment of
volatiles. (2) Cost estimates are probably less
reliable for facilities with small waste piles and the
smallest surface impoundments than for other
facilities because corrective action costs for plumes
of less than one-half acre in area were not
modelled. (3) The cost estimating model is directly
applicable only within the limits established by the
assumptions made to facilitate cost estimation. The
use of two couiilerpumping strategies compensates
for this simplification to some extent. (4) In
addition, the alogrithms do not account for
replacement or retirement of wells or treatment
facilities. Wells can become unuseable within
months, or lust for years, depending on corrosivity
and other characteristics of the plume. Treatment
muy be required as long as pumping continues, or
may be unnecessary during the latter stages of
corrective action. For economic analysis purposes
EPA assumed that wells will last for 30 years and
that treatment facilities will be used for as long us
remedial action continues.
-------
32340 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
display the alternative cases, the
relevant tables have columns displaying
each timing scenario discussed above.
For each timing case, the range of costs
shown reflects cost differences between
Strategy 1 and Strategy 2,
To estimate the cost of
counterpumping it was necessary to
estimate the size of the plumes to be
contained. Plume width is the most
sensitive parameter within the
modelling framework used for corrective
action cost estimates, and their is reason
to expect that unit width serves as a
conservative estimate of plume width. If
a unit fails becuase of age, then a
general failure across the unit is likely
so that the width of the unit might
approximate the width 'of the plume; if a
unit fails due to a localized problem or
single rupture, then the plume width
should be smaller than the unit width.
Thus, using unit width as a proxy for
plume width should result in a
conservative measure of the cost of
counterpumping.9
Corrective action costs will occur only
to the extent that ground water is
contaminated and to the extent that
protection of the environment requires
taking corrective action.
4. Cost for Landfills. Table 1 shows
the annual revenue requirements needed
to compensate .for the cost of Part 264
requirements for on-site landfills of
different sizes without corrective action.
. It covers the annual revenue
requirements associated with the cost of
required liners, final cover and leachate
collection systems. It assumes that
waivers are not obtained, and that no
landfills currently use any of the
features required under Part 264. This
tends to overstate costs since tkere are
landfills that are at favorable locations
that would qualify for some site specific
waivers or include these features.
TABLE i.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 REGULATIONS WITHOUT
CORRECTIVE ACTION: ' LANDFILLS BY UNIT
SIZE
Size
(MT Vyr)
500
2,000
5.000
7.000
Single
synthetic liner
Per
Year
($000)
$31
49
79
98
15.000 ! 149
35.000......
60,000
277
379
Per
MT« '
$62
25
46
14
10
8
6
Double liner
(synthetic/
clay)
Per
Year
($000)
$52
94
184
207
323
622
862
Par
MT2
$104
47
33
30
22
18
14
Double
synthetic liner
Per
Year
($000)
$43
82
145
184
£90
561
779
Per
MT"
$86
41
29
26
19
16
13
TABLE 1.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 REGULATIONS WITHOUT
CORRECTIVE ACTION: * LANDFILLS BY UNIT
SIZE—Continued
Size
(MT Vyr)
123.000....
Single
synthetic liner
Per
Year
($000)
S66
Per
MTa
5
Double liner
(synthetic/
day)
Per
Year
($000)
1,306
Per
MT»
11
Double
synthetic liner
Per
Year
($000)
1.180
Per
MT8
10
'Costs shown are those estimated for on-site landfills in
these size categories. They are slightly different from costs
estimated for off-site 'landfills. If costs were based on off-site
landfills, double Jiner '(synthetic/clay) costs would be lower
than double synthetic liner costs.
2MT indicates metric ton.
Table 2 shows the additional annual
revenue requirements associated with
corrective action if it is needed.
TABLE 2.—ANNUAL REVENUE PER UNIT REQUIRED TO OFFSET INCREMENTAL COSTS DUE TO PART
264 CORRECTIVE ACTION REGULATIONS: LANDFILLS BY UNIT SIZE
Size (metric tons per year)
500
2 000 ~
5 000
7 000
}5 000
35 000 >
60 000
123000 ~
Detect year 0 pump
150 years
Per year
($000)
138-198
149-225
172-267
178-275
194-309
216-361 .
232-391
252-422
Per
metric
ton
276-396
75-113
34-53 ,
25-39
13-21
6-10
4-6 !
2-3
• Detect year 0 pump
20 years.
Per year
($000)
65-95
71-109
82-128
85-132
93-148
104-174
113-190
123-206
Per
metric
ton
130-190
36-55
16-26
12-19
6-10
3-5
2-3
1-2
Detect year 49
pump 20 years
Per
year
($000)
17-24
18-27
21-31
21-32
24-36
26-42
28-46
30-50
Per
metric
ton
34-48'
9-14
4-6
3-5
2-2
1-1
'-1
i_i
1 Less than 50 cents.
SMT indicates metro tons.
Thus, if a 15,000 MT/year landfill with
a double synthetic liner didjiot
contaminate ground water to the extent
that corrective action was necessary,
the incremental annual revenue
requirement would be $290,000 or $19
per metric ton. If contamination were
detected immediately resulting in
immediate counterpumping for 20 to 150
years, an additional revenue
requirement of between $93,000 to
$194,000, or $6 to $13 per ton would be
added to the basic Part 264 costs (using
Strategy 1 counterpumping).
To help put these costs in perspective,
costs estimated in the absence of
regulations (pre-ISS) range from $11 to
$240 per metric ton for the large and
small on-site landfills, respectively. ISS
incremental cost estimates for these two
sizes range from $6 to $128 per metric
ton. Prices at commercial landfills in
1981 ranged from $55 per metric ton to
$240 per metric ton, depending on the
type of waste and whether it was in
drums, or bulk. This does not include
transportation, which averaged about
$0.15 per ton mile.
Table 3 shows the costs that existing
landfills could incur in the first year as a
result of the Part 264 requirements.
Potential first year costs for design and
operating requirements {D&O} using a
double liner (synthetic/day) and for
immediate corrective action are
reported separately for Strategy 1 and
Strategy 2.10In the example discussed
above, the first year cost is $305,000 if
no corrective action is needed, and 'an
additional $315,000 to $465,000 if
counterpumping is undertaken
immediately.
TABLE 3.—FIRST YEAR COSTS PER UNIT DUE
TO PART 264 REGULATIONS: LANDFILLS BY
UNIT SIZE
Size (metric tons per year) .
500 '.
2000
5 000
7000
15,000 _
35^0
60000 ;
123,000
'Basic cost:
no
corrective
action/
double
Hner1
$50
91
156
196
305
584
610
1,226
Corrective
action cost:
immediate
counterpumping
1$000)
S18S-S295.
205-365
255-405.
265-415
315-465.
375-585.
425-685
475-795.
'(Synthetic/clay.)
5. Costs for Surface Impoundments.
EPA estimated costs for existing surface
impoundments using basically the same
methods that were used to estimate the
cost for landfills, but varied some
features to reflect differences in the
regulations and the units affected, and
estimated two additional cost cases. It
was assumed that surface
impoundments close as landfills in all
cases. {Costs for units where all waste,
liners and contaminated subsoils are
removed at closure, and for clay-lined
storage impoundments, are not
reported.}
9 When estimating corrective action costs for
facilities, EPA assumed that facility width, rather
than unit width, approximates the plume width.
10 First year Part 264 D&O costs are
approximately the same as annual revenue
requirements because the major incremental cost
element in the cost model is the cell liner, which is
installed for one cell in each .year of fhe landfill's
operating life..
-------
Federal Register / Vol. 47, No. 143 / Monday, July 26, '1982 / Rules .and Regulations
The no-corrective-action case was
estimated in much the same way as the
no-corrective-action case for landfills.
However, surface impoundments
generate dredged material that must be
landfilled; " the incremental cost of
disposing of this material in a Part 264
landfill rather than in an ISS landfill is
counted as a surface impoundment cost
in this section.12 In addition, operators
of existing surface impoundments may
choose to (1) continue operations
without installing liners; (2) close the
existing unit and construct a new
impoundment lined with one of the three
liners described earlier; or (3) retrofit the
11 For this analysis It was assumed that dredged
material is disposed of in a 123,000 MT/yr. landfill.
Landfill disposal costs vary depending on the type
of liner system. It was assumed that the landfill
would not need corrective action. If corrective
action were necessary, costs would be slightly
higher.
"Because these higher lundfilling costs are also
included In the landfill cost estimates, landfill and
surface impoundment costs cannot simply be added
lo got total costs.
existing impoundment with any of these
three liners. Costs are estimated for all
of these cases. The retrofit case includes
the costs of disposing of contaminated
material from the existing
impoundments, and the replacement
case including closure and post closure
care costs for existing units. Neither
case includes land costs nor the
economic costs of disrupted plant
operations, which are likely to vary a
great deal across sites.
Tables 4, 5, and 6 summarize these
results. Costs are reported on the basis
of the size of the impoundment rather
than per unit of waste because the
amount of liquid processed through an
impoundment of a given size can be
highly variable. The cost for an
impoundment will depend on the
compliance elements .that the unit
selects or is required to undertake—no
scenario would include more than one
kind of corrective action or more than
one kind of alteration.
TABLE 4.—ANNUAL REVENUE PER UNIT REQUIRED TO OFFSET INCREMENTAL COSTS DUE TO PART
264 REGULATIONS WITHOUT CORRECTIVE ACTION: SURFACE IMPOUNDMENTS BY UNIT SIZE
Size (acres)
0,25 _. ...... .„..„,„..,„ „
0,5
1,0... ™™«..™,...m „
50,,,, ,„„
lt.0™™. .™_.-_ _ _
Base
cost
(SOOO)
S4-6
6-9
10-16
16-25
48-81
95-157
Retrofit cases
Single
syn-
thetic
liner
(SOOO)
S9
15
25
48
92
228
Double
liner
(SOOO)
• $13
22
37
71
148
348
Double
syn-
thetic
liner
($000)
$9
18
34
71
157
374
Replacement cases
Single
syn-
thetic
liner
($000)
$19
26
35
59
106
252
Double
liner
($000)
$23
31
45
78
153
354
Double
syn-
thetic
liner
(SOOO)
$18
27
42
76
156
367
TABLE 5.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 CORRECTIVE ACTION REG-
ULATIONS: SURFACE IMPOUNDMENTS BY UNIT
SIZE.
TABLE 6.—FIRST YEAR COSTS PER UNIT DUE
TO PART 264 REGULATIONS: SURFACE IM-
POUNDMENTS BY UNIT SIZE
Size (acros)
0,25 & O.S '„_„.._.....
1 :0. ............................
2.O.,,,,...,™.™.,...™...
5,0,m«««w«..w«w«,,..
1 1 ,0. ,...........„_...,.........
Daiect
year 0
pump 150
years
(SOOO)
S122-S163..
128-180,,,...
138-198
149-225™.
169-261
Detect
yearO
pump 20
years
(SOOO)
S58-S77
61-86
65-95 „ »
71-109
•81-125
Detect
year 49
pump 20
years
(SOOO)
S15-S19.
16-22.
17-24.
18-27.
20-31.
Size
(acres)
.25
.5
1.0
20
60
11.0
Basic cost:
no
corrective
action
(3)
51
2
3
8
18 .. .
Corrective
action
cost'
counter-
pumping
S159-S209
159-209
169-254
189-299
209-369
. 254-339
Facility a
Retrofit
liner
$123
226
442
862
a 141
4,622
teralion '-
Replace
facility
$142
220
390
718
1,765
3,868
'Costa for plumes associated with surface Impoundments
siwltof than O.S acre wore not estimated. Cost reported is
RM a O.S acr» impoundment.
Thus, if a 2-acre surface impoundment
did not contaminate ground water to the
extent that corrective action was
necessary, the incremental revenue
requirement would by $16,000 to $25,000
pe • year, depending on the type of liners
1 Assumes corrective action is taken in Year Zero.
•Assumes double synthetic liner
3 Less than $500.
used by off-site landfills where the
dredged material is disposed of. If the
owner chooses to retrofit, the
incremental annual cost will be $48,000
to $71,000; if he replaces the
impoundment, the incremental annual
cost will be $59,000 to $78,000,
depending on the type of liner system
installed.
If corrective action is necessary and
counterpumping is undertaken
immediately, an additional annual
revenue requirement of $65,000 to
$138,000 would be added to the basic
Part 264 cost (under Strategy 1
counterpumping).
The first year cost for the basic
requirement is $3,000; if counterpumping
is undertaken, the first year cost is
$189,000 to $299,000; and if the unit
elects to retrofit the first year cost is
$862,000.
Current prices that could provide
perspective for these costs are not
readily observed, because most surface
impoundments are on-site. However, it
was possible to estimate the total
revenue requirements for new
impoundments constructed and
operated to comply with ISS
requirements, using assumptions
consistent with those used for Part 264
cost estimates. These annualized
revenue requirements ranged from
$42,000 for the smallest facility, to
$424,000 for the largest, including
revenue requirements of $6,000 to
$174,000 in the absence of any
regulation.
6. Costs for Land Treatment Units.
The Agency estimated costs for land'
treatment units on a model plant basis,
as for landfills and surface
impoundments, and calculated
corrective action costs in an identical
fashion (i.e. for action by all facilities in
Year Zero or Year 49), though for units
of different sizes. It was necessary to
make assumptions about the numbers of
units that would be required to
undertake certain operating
modifications under Part 264 rules. EPA
assumed that ten percent of land
treatment units would require a pH
adjustment, 90 percent would require
irrigation and a crop cover to control
wind dispersal, 25 percent would need
to increase their soil monitoring and
number of lysimeters. EPA assumed that
all units would conduct one waste field
test, and that all would close with
hazardous constituents in the treatment
zone. It was also assumed that ten
percent of all units would encounter
problems during operation (i.e., they
would fail ongoing tests of soil core and
soil pore liquids), resulting in operating
modifications: three percent of all units
(30 percent of those with problems)
would adjust their pH, five percent
would expand the treatment area, and
two percent would reduce their waste
-------
32342 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
loadings. Tables 7, 8, and 9 summarize
the results.
TABLE 7.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 REGULATIONS. WITHOUT
CORRECTIVE ACTION: LAND TREATMENT BY
UNIT SIZE , ' . -
Size (acres)
17 * . .
6.5 „
20 1
74 3
247 1 ;
.Basic cost (no
corrective action)
Per year
($000)
$17
19
45
122
361
Per
metric
ton1
$48
14
n
8
7
1 Based on an average application rate of 206 MT per
^cre per year. In practice the amount of waste processed
per acre is highly variable.
TABLE 8.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 CORRECTIVE ACTION REG-
ULATIONS: LAND TREATMENT BY UNIT SIZE
Size
(acres)
1.7™.
6.5 ....
20.1 ....
74.3 ....
247.1 ....
Detect year 0
pump 150
years
$134-187
1S4-236
178-276 .
225-371 „...
285-472
Detect year 0
pump 20
years
$63-89..'.
73-114
85-133
109-180...
140-234™
Detect year 49
pump 20 years
$16-22.
19^28.
21-33.
27-44
34-56
TABLE 9.—FIRST YEAR COSTS PER UNIT DUE
TO PART 264 REGULATIONS: LAND TREAT-
MENT BY UNIT SIZE
Size (acres)
1.7
6.5
20.1 _
74.3. .
247.1 „
Basic cost
No corrective
action ($000)
$76
81
103
134
226
Corrective action
Immediate
counterpumping
'($000)
$173-265
205-365
266-425
395-625
565-1,025.
Thus, if the operator of an average
size (20.1 acre) land treatment unit •-
applies waste at an average rate (206
MT per acre per year) and does not
contaminate ground water to the extent
that corrective action is necessary, the
incremental annual revenue requirement
would be $45,000 or $11 per MT. If
contamination is detected immediately
resulting in immediate counterpumping,
$85,000 to $178,000 per year or $21 to $45
pef'MT would be added to this basic
Part 264 cost (under Strategy 1
counterpumping).
As shown in Table 9, the first year
cost if no corrective action is needed for
this size unit is $103,000. If corrective
action is needed immediately, the first
year cost increases by $265,000 to
$425,000. '
To put these costs in perspective,
prices for commercial land treatment in
1981 ranged from $5 to $24 per metric
ton.
7. Costs for Waste Piles. Waste pile •
unit cost estimates assume that all
existing waste piles would be managed
as storage rather than disposal units.
Accumulated wastes must periodically
be removed and disposed of in a landfill;
therefore, the incremental costs of using
a Part 264 rather than an ISS landfill are
included here as a waste pile cost.
(These costs are also reflected in the
landfill cost estimates, so unit costs are
not additive.) The analysis assumes that
all piles are exposed and are at or above
grade. Costs for enclosed pile's
(including the cost of enclosure) could
be significantly lower, and costs for
below grade piles are likely to be higher
(in practice, many large below grade
piles would probably close as landfills).
The analysis looked at three
alternative compliance paths to reflect
the options available to waste pile
owners or operators under the
regulations: (1) Retain the ISS sturdy
impermeable base and undertake
ground-water monitoring; (2) inspect the
ISS base periodically (assumed to mean
annually) without ground-water
monitoring; or (3) install a new base
with a double liner system and leachate
collection system and dispense with
inspections and ground-water
monitoring (until leakage is detected).
For waste piles, it was again assumed
that corrective action consists of .
counter-pumping in Year.Zero or Year
49.
Tables 10,11, and 12 summarize the
results. The annual revenue
requirements shown in Table 10 include
the cost of disposing of the waste pile
and base at the time of closure in a Part
264,123,000 MT/yr off-site landfill with
a double (synthetic/clay) liner that does
not require corrective action.
TABLE 10.—ANNUAL REVENUE PER UNIT RE-
QUIRED TO OFFSET INCREMENTAL COSTS
DUE TO PART 264 REGULATIONS WITHOUT
CORRECTIVE ACTION: WASTE PILES BY UNIT
SIZE l
Size (SOOO ft5)
2
10
25 ; ...
100
500 '.
1 000
Compliance option
Ground-
water
montor-
ing
(SOOO)
$15
17
21
27
27
26
Base
inspec-
tion
($000)
. $7
9
13
20
23
27
Liner
and
leachate
collec-
tion
system
(SOOO)
S7
9
13
19
17
15
'Costs for waste piles sized at 2,000 to 25,000 cubic feet
assume a 1 year operating life. Costs for a 100,000 cubic
foot pile assume a 2 year operating life, costs for a 500,000
cubic foot pile assume a 10 year operating life, and costs for
a 1,000,000 cubic foot pile assume a 20 year operating life.
' Because operating lives differ, costs as a function of size do
not increase monotonically.
TABLE 11 .—ANNUAL REVENUE PER UNIT RE-
QUIRED To OFFSET INCREMENTAL COSTS
DUE TO PART 264 CORRECTIVE ACTION REG-
ULATIONS: WASTE PILES BY UNIT SIZE >
Size (SOOO ft3)
2-500
1,000
Detect year 0
pump 150 years
($000)
S150-S196
153-207..
Detect
• year 0
pump 20
years
(SOOO)
$71 -$93...
78-98
Detect
year 49
pump £0
years
(SOOO)
$18-$23.
18-24.
1 Costs for plumes associatod with waste piles smaller
than 500,000 cubic feet were not estimated. Cost reported is
for a 500,000 cubic foot pile.
TABLE 12.—FIRST YEAR COSTS PER UNIT DUE
TO PART 264 REGULATIONS: WASTE PILES
BY UNIT SIZE
Size
($000
. ft")
2
10
25
100
500
1tOOO
Ground-
water
monitor-
ing
($060)
$44
44
44
44
44
44
Inspect
base
(SOOO)
S4
4
4
4
4
4
Liner
and
leachate
collec-
tion
system
(SOOO)
$12
12
12
~* 12
14
17
Immediate
counterpumping
($000)
0
t1)
(')
(J)
165-S237.
170-265.
'Not estimated. Costs for 500,000 cubic foot pile provide
an upper bound.
Thus, if the operator of a 100,000 cubic
foot waste pile decides to inspect the
unit's ISS base rather than monitor
ground water or change to a liner and
leachate collection and removal system,
and does not contaminate ground water,
the additional annual revenue
requirement is $20,000. If contamination
is detected in year zero and
counterpumping is necessary, additional
annual revenue requirements of $71,000
to $150,000 would be added to the basic
Part 264 cost (under Strategy 1
counterpumping).
First year costs for the three Part 264
options are shown in Table 12. Without
corrective action, these costs for the unit
discussed above are $4,000 to $44,000,
depending on the D&O option chosen.
Corrective action taken in Year Zero
could add up to $165,000 to $237,000 to
these costs.
E. Closure Analysis
This section examines the economics
of closing small on-site landfills and
shipping wastes to commercial sites and
replacing existing on-site surface
impoundments. Small on-site landfills
may become uneconomic compared to
larger commercial facilities as a result of
these regulations. Small surface
impoundments may close to avoid
liability for corrective action (related to
past leakage) that could otherwise be
imposed through the permit process.
-------
Federal Register / Vol. '47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32343
If small landfills choose to close or if
small surface impoundments are
replaced, a substantial portion of all
hazardous waste units will have been
significantly affected by these
regulations. EPA estimates that there
are about 255 small (500 MT/yr. or less)
landfills; this represents 44 percent of all
landfills. There are about 2,760 small
(one acre or less) surface
impoundments, or 65 percent of all
surface impoundments.
Results of the analysis on small
landfill closures indicate that operators
of small on-site landfills would in many
cases be better off closing and shipping
their wastes to off-site commercial
facilities for disposal. For small surface
impoundments, the economics favor
replacing existing units under most
circumstances if clostKefla^Jhe existing
impoundment eliminate^an obligation
to undertake corrective action. Each of
these issues is summarized below.
Table 13 indicates that under the Part
264 regulations, owner/operators of
small on-site landfills could expect their
annual revenue requirements to increase
by about $62/ton assuming a single
synthetic liner design and no corrective
action. TlTis is used as the base case.
(With a double liner [synthetic/clay],
this figure would be $104/ton, or $86/ton
with a double-synthetic liner). If
corrective action is considered likely,
the increases in expected revenue
requirements could range from $96 to
$458 per ton. These expected cost
increases understate the savings that
could actually be achieved by closing,
since major cost components of ISS like
closure, post closure, and financial
responsibility, as well as expenses for
basic trench or cell .construction, could
be avoided or recovered if the landfill
closed.
These incremental costs (which are
conservative estimates of incremental
savings from closure) compare with
actual 1981 prices for commercial
disposal that range from $55/ton to
$240/tbn. This sensitivity analysis
assumes that prices for commercial
services will not change as a result of
the Part 264 regulations. This
assumption is reasonable if commercial
facilities already meet most design and
operating standards and do not face
corrective action requirements, and if
commercial capacity is adequate to
meet demand at current prices^.
TABLE 13.—EFFECTS OF THE INCREMENTAL COSTS OF PART 264 REGULATIONS ON THE ECONOMIC
VIABILITY OF SMALL ON-SITE LANDFILLS'
Incremental cost for 500 metric ton/year on-site landfill..™ „. ...»
Equivalent distance2 to ship waste for disposal in commercial off-site (andfiit
Base
S62/
. ton.
0-47
miles.
Base cas
Low
$96/ton
0-273
miles.
e plus corrective
action
High
458/ton
1.453-2,687 mftes
'Base casa cost assumes single synthetic liner and no»corrective action and that increased demand for ofljato services
does not significantly raise prices. Low cost assumes that the small landfill undertakes counterpumping under strategy 1
conditions (or 20 years starting In year 49. High cost assumes that ths small landfill undertakes counterpumping under strateov
2 conditions lor 1SO years starting in Year Zero.
'Distance calculated using a range of commercial disposal prices of SS5 to S240/ton and a transportation cost of S0.15/ton
mBa.
Under the base case assumptions
used in Table 13, it would be
advantageous for a firm operating a
small on-site landfill to close the landfill
nnd ship its wastes to a commercial
Facility for disposal if the firm is quoted
disposal prices that are at the low end of
the actual range. Where the firm faces a
price of $55/ton for commercial
disposal, it could afford to ship wastes
up to 47 miles, assuming a
transportation cost of $0.15/ton mile. If
the firm is quoted prices closer to $240/
ton, it would be more cost-effective for
the firm to continue running its landfill.
Where the firm expects that corrective
action could be necessary at its landfill,
il could close the landfill and ship
wastes from 273 to 2687 miles for
disposal in a commercial landfill
charging $55/ton, instead of bearing the
costs and responsibility for corrective
action. Where the commercial disposal
price is closer to $240/ton, it may be
more cost-effective for the firm to
continue disposing its wastes on site,
but this would depend on the
hydrogeologic; conditions existing at the
site and the expected duration of
corrective action.
These economic factors may be offset
by concerns over liability potentially
associated with sending wastes off site,
or by concerns over potential pricev
increases at commercial facilities,
Similar comparisons can be madt.
between the costs of replacing 'small
surface impoundments to limit the
possibility that corrective action will be
needed, or doing nothing and hoping
that corrective action will not be
necessary. Actual decisions to close and
replace a surface impoundment will be
based on individual owner or operators
expectations regarding the probability
that their impoundments have been
leaking or will leak in the future.
Table 14 compares the incremental
costs of taking corrective action under
various conditions with the costs of
replacing 1/4 acre, 1/2 acre and 1 acre.
surface impoundments.
TABLE 14.—COMPARISON OF CORRECTIVE ACTION COSTS WITH CLOSE/CONSTRUCT COSTS FOR
SMALL SURFACE IMPOUNDMENTS; INCREMENTAL ANNUAL REVENUE REQUIREMENTS .
Impoundment size
& aero..™....,.,...,,.,..*.
i? acfe.» „
1 9cre ..„,„.
. . ~ - ..^ _... _ . , . .
In year zero for 150
years (SOOO)
S126-S167
S128-S169
S138-S190
Corrective action1
In year zero for 20
years (SOOO)
.... S62-S81
.... S64-S83
1... S71-S96
In year 49 for 20 years
($000)
S19-S23
S22-S28
S26-S32
!
i Close and construct 1
, (SOOO) .
j S19
.' 26.
1 35
•Low end of range of corrective action costs based on Strategy 1 conditions; high eno of rtmyp based on Strategy 2
- Assumes dounle line' design, most expensive of possible systems
-------
32344 Federal Register / Vol. 47, No. 143 / Monday. July 26. 1982 / Rules and Regulations
Based on Table 14, it .may often be
more advantageous to close existing
units and construct new ones where it
appears likely that this would eliminate
the need for corrective action. This may
be the case where an impoundment is
believed to have been leaking but has
not yet resulted in significant
contamination at the waste boundary.
(In this case, the owner/operator would
need to be able to distinguish
contamination from the closed and the
new unit, perhaps through use of tracers
added to new waste or based on the
arrangement of monitoring wells.) Of the
three corrective action timing cases
examined, electing to continue to
operate the existing impoundment when
corrective action, will be necessary is
only advantageous under the "best"
assumptions, i.e., when action is not
heeded until Year 49 [the year before
-owner/operatorresponsibility ends) and
continues for 20 years.
F. Total Costs
EPA estimates that the total
aanualized cost of these regulations (for
existing facilities 13) couldrange from
$150 to $1,145 million. Details on the
components of these cost estimates are
reported in table 15.
The broad range covered by these
estimates results primarily from the
uncertainty regarding the amount of
corrective action that will be needed.
ISS monitoring will eventually provide
an indication of the severity of current
environmental problems. Currently,
however, EPA is unable to predict
reliably the number of facilities able to
comply with the ground-water
protection standard specified in the
regulations. EPA cannot predict when
facilities will fail, or how long corrective
action will have to continue at a typical
site. Data on a host of other site specific
factors that will affect the cost of the
corrective action are also unavailable.
Finally, EPA cannot predict the number
of facilities affecting ground water that
might be able to avoid corrective action .
by showing that actual concentrations of
Appendix VHI constituents at the
. compliance point pose no threat to
human health or the environment.
To estimate total D&O costs EPA
estimated the size distribution of units'
from the Part A's.14For each model unit,
13 We were unable to estimate total costs for new
facilities due to the difficulty of projecting the
number of facilities that would-be affected.
Determining incremental costs for a single new
facility is difficult in any event, because EPA has
not previously estimated the costs of the Part 267
' regulations that now apply to these facilities.
"Complete details are,in the docket report. Based
on Part A of TSDF permit applications, EPA
estimates that there are S73 existing hazardous
waste landfills, capable of accepting about 12
EPA multiplied the revenue
requirements reported in Individual Unit
Costs by the;number of units, and
summedls to obtain an estimate of-total
D&O costs.
The lower bound estimate of D&O
costs assumes that landfills use single
synthetic liners, and that waste piles
choose to replace the containment
system to avoid the need for ground
water monitoring. The upper bound
D&O estimates assume that landfills
have double synthetic liners, that waste
piles monitor ground water, and that
surface impoundments are closed and
replaced by new units with double
synthetic liners.
To estimate total corrective action
costs, EPA grouped individual units into
facilities, and assumed that plume sizes
were related to the acreage of the total
waste management areas at the
facilities. Part A data provided
information on the number of facilities
with various combinations of units, and
allowed EPA to estimate the average
total acreage at sites with each
combination,16 EPA added 50 percent to
the calculated acreage to allow for
common areas, variations in plume
shape, and constraints on siting of
recovery wells.
EPA assumed that ajl facilities were
permitted simultaneously and
immediately. To the extent that some
facilities close rather than apply for
permits, others apply for but do not
receive permits, or permits are issued
over time, costs will differ from these
estimates.
Under the regulations, corrective
action is only required in those cases
where Appendix Vffl constituents
million tons of waste per year; 4240 surface
impoundments with 11,169 acres of surface area; 241
land treatment facilities with 12,100 acres of
operating area; and 608 waste piles with 87 million
cubic feet of wastes. Thus, D&O costs are based on
5,662 units. Surveys to verify these estimates are-
now underway, and it is likely that the final
estimates will be lower.
We were unable to simply add the capacities
reported on the Part A's, because capacities for
some types of units are reported in different units of
measure there than the units of measure used in this
analysis (i.e., landfills in acre-feet rather than metric
tons, and surface impoundments in gallons or liters
rather than acres of surface area. In addition, we
assumed that the remaining operating like of all
units was 20 years. Annual capacity figures for each
kind of facility should therefore be viewed as
estimated based on available data, rather than as
aggregates of reported capacities.
15 In adding costs for units to obtain totals an
adjustment was made to avoid double counting the
costs of landfilling surface impoundment sludge and
wastes removed from piles.
"Once again, it was necessary to make
assumptions in order to transform the units reported
on the Part A's into acres of surface area. However,
the corrective action cost estimates are based on
2484 facilities, the number of disposal facilities
which submitted Part A of the permit application.
increase in ground water, and where the
owner or operator is unable to show
that the actual concentration of those
constituents pose no threat to human
health or the environment. Total costs
as high as the high cost case are very
unlikely since it assumes that all
landfills install double synthetic liner
systems, all existing surface
impoundments close and build new
impoundments with double synthetic
liner systems, and that in spite of these
actions, all facilities require immediate
corrective action lasting 150 years and
using an expensive counterpumping
strategy. As the need for corrective
action increases, and as owners and
operators install more expensive liner
systems the total cost of the regulations
will increase from the low cost case
toward the high cost case.17
The lower and upper bound costs are
shown in Table 15. The annualized D&O
cost for the regulations ranges from $150
to $468 million per year. Depending on
the frequency, speed and concentration
with which Appendix VIII constituents
reach ground water, total incremental
annualized costs could be as high as
$1,145 million.
TABLE 15.—TOTAL ANNUAL REVENUE RE-
QUIREMENTS FOR PART 264 REGULATIONS:
ALL LAND DISPOSAL FACILITIES
[Dollars in millions]
Landfills D&O
Surface impoundments
D&O
(Adjustment for
landiilled material)
Waste piles D&O
(Adjustment for
landfilled material)
Land treatment D&O
Corrective action -.
Total
Baseline
(pre-
ISS + ISS)'
S
S301
534
(190)
16
(10)
51
702
Incremental part 264
Low
estimate
$81
102
(57)
7
(3)
20
150
High
estimate
$159
401
(118)
12
(6)
20
677
1,145
'The total baseline costs of $702 million Includes pre-ISS
costs of about $181 million for landfills and $180 million for
surface impoundments. Similar data are not available for
waste piles and land treatment units. Pre-ISS costs include
land, excavation, and infrastructure costs incurred in estab-
lishing a land disposal facility. ISS costs include more than
"good housekeeping" requirements. Approximately 72 per-
cent of the ISS costs of $341 million included In the baseline
are due to ISS closure (382 million), post closure ($40
million), ground water monitoring ($42 million), and financial
assurance ($82 million) requirements.
G. Industry Analysis
The economic impacts of these .
regulations will depend in part on how
17 Actually, the high cost case does not reflect the
highest possible costs and the low cost case does
not represent the lowest possible cost that could
occur under the regulations, because waivers are
potentially available for some requirements and
because we use median technical assumptions in
determining cost. It is, however, extremely unlikely
that the true cost of these regulations will fall
outside these boundaries.
-------
Federal Register /-Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 3
32345
the costs of the regulations are
distributed across industries and firms.
As described in Total Costs, EPA
calculated upper and lower bound cost
estimates. These two cost scenarios
were then applied to selected industries,
in order to obtain a preliminary
indication of whether economic impacts
might be significant. The industries
examined were selected because there
were large numbers of on-site land
disposal facilities in the industries, or
large quantities of waste shipped off-
site, or both.
Upper and lower bound costs were
allocated to industries using available
information on the use of land disposal
of hazardous waste in these industrial
sectors. This information is sufficient to
allow EPA to identify the industries on
which these regulations are most likely
to impose significant costs. However,
cost estimates for any given industry are
highly sensitive to the numbers and
sizes of facilities attributed to that
industry, and the data base used to
derive these factprs for individual
industries is imprecise.
Table 16 lists the industries EPA
examined, and their SIC codes. The
range of potential annual revenue
requirements is reported and compared
to total costs of production, value
added, and value of shipments in Table
17. The range of potential first year
expenditures is compared to an estimate
of annual capital expenditures for each
industry in Table 18. Table 19, at the end
of this section, provides estimates of the
range of potential annual revenue
requirements (in excess of pre-ISS costs)
for the combination of ISS (Part 265) and
Part 264 regulations. In all cases cost
ranges reflect the upper and lower
bound cases used earlier in this
analysis.
These comparisons do not constitute
an economic impact analysis at either
the industry Or firm level. At the
industry level, they do provide an initial
screening to judge whether economic
impacts might be large or small. If the
upper bound costs do not appear •
significant compared to economic
parameters for an industry, then the
analysis indicates that broad and
significant economic impacts are
unlikely. These comparisons are also
useful in identifying those industries
where the most significant impacts are
likely to occur. However, the high cost
case cannot indicate that there will in
fact be significant impacts, because
costs are probably overstated in the
high cost case.
To the extent that economic
aggregates such as value added are
representative of firms in the industry
sectors, the ratios reported here could
also provide some insight into potential
burdens for "typical" firms in each
industry. However, it should be
remembered that costs are likely to be
overstated in the high cost case,18 and
that there are no truly typical firms.
Four-digit SIC codes include highly
18 This scenario is appropriate for a firm with a
mix of on- and off-site disposal, required to
undertake corrective action lasting 150 years at an
early date at all of its on-site facilities after having
installed the most expensive technology modelled,
and simultaneously faced with higher off-site costs
due to the need for early corrective action at all
available off-site facilities.
diverse operations with widely varying
costs of production, value added and
value of shipments per unit of hazardous
waste generated. In addition, facilities
will use different mixes of on- and off-
site disposal for these wastes, and so
face different exposure to the
regulations.
The docket report contains a full
description of the methodology used to
construct these tables.
TABLE 16.—INDUSTRIES EXAMINED BY SIC
CODES
Industry name
Crop Planting and Protection
Oil and Gas Extraction
Wood Preserving
Alkalies and Chlorine
Inorganic Pigments
Industrial Inorganic Chemicals .'.
Plastic Materials and Resins
Synthetic Rubber '.
Celiulosic Man-Made Fibers
Organic Fibers, Noncellulosic :
Medicinals and Botanicals
Paints and Allied Products ,'
Gum and Wood Chemicals
Cyclic Crudes and Intermediates •„,
Industrial Organic Chemicals ,
Nitrogenous Fertilizers
Phosphatic Fertilizers
Agricultural Chemicals
Explosives
Chemical Preparations, NEC
Petroleum Refining
Lubricating Oils and Greases
Blast Furnaces and Stael Mills
Electro-Metallurgical Products
Steol Wire and Related Products
Gray Iron Foundries
Secondary Nonferrous Metals
Copper Rolling and Drawing
Plating and Polishing, Metal Coating and Allied
Services
Motor Vehicles and Bodies
Motor Vehicle Parts and Accessories
SIC
code
0721
1300
2491
2812
2816
2819
2821
2822
2823
2824
2833
2851
2861
2865
2869
2873
2874
2879
2892
2899
2911
2992
3312
3313
3315
33215
3341
33516
34719
3711
3714
TABLE 17.—COMPARISON OF ANNUAL REVENUE REQUIREMENTS DUE TO PART 264 LAND DISPOSAL REGULATIONS TO SELECTED INDUSTRY
MEASURES, BY SIC CODE
[Low and high cost cases]
0721 .«.««..«.... .... . .».
1300.. „. _...,.„
2491...
2912, ......„..,....,.., „
2316................
2819. ............ ,„„..„. ._
2821 ...................... _.„„..„„„,
2S22.,™.™™ „„„ .
2823,.ii..t«...tt....K ..........
2824............ .............................
2833, ...,,...,„....._.„ .„...„,.„.„.
2851 _..„ _.
2881 .....j.™^....,......,....,,,...
2865m,..,.,,.,..,,..
2869.... ™ .
2873. ................... ._
2fl74 »«. «. .
2978............. .......,.„..„............:..
2882 „„..„„..,„ ...
2800..w...wmmw....»..^..
29 1 1 ,..._....„..............................
2992... .................................
3312........ ..................................
S322-S3 309 . ,
1 392-8 104
774-15.572
3 187-16,944. . . ,
3,204-16,318 .
1,079-73,034
4 896-24 478
2,484-10,976
1,640-7,242 „
1303-7378. ... '
218-2706
696-5,739
1,037-6,575
2,617-15,885 _
3,756-23,435
1 ,003-7,201
151-2 347
2,595-12,793
850-7450
1,322-7,815...
23,938-116,687
1,068-5,230
8.495-37.153
Cost of production
0)
0)
.16-3.17
20-1 03
.44-2.26
.15-.97 ,
04-22
.18-.78
.12-.53 '.
05-27
02- 23
03- 20.
1 74-11 03
.12-.73
04-.27
.05-.36
01- 15 ~
.23-1.13 ...;
36-3 19
.23-1.37
.02-.08
.28-1 35
04- 19
Annualized cost as a percentage of —
Value added
(')
(')
.38-7.61
26-1 37
.68-3.49
.19-1.27
08- 41
.46-2.03
.33-1.46
08- 46 ...
02- 19
06- 34 .. ..
2.44-t6.45
.21-1.35
.07-.42 I.
.07-.49
02-31
.38-1.86
.38-3.35 .,
.33-1.94 t
.09-.43
.66-3.24
.10-.44
Value of shipments
(')
(')
.13-2.58.
13-.68
.31-1.57.
.10-.64.
03- 16
.14-.62.
.11-.48.
04-20
01- 12
.02-.14.
1 15-7.31.
.08-.53.
.03-. 18.
.03-.23.
01 10
.18-.87.
.24-2.06.
.15-.90.
.01-.07,
£1-1 04
.04-. 16.
-------
32346 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
TABLE 17.—COMPARISON OF ANNUAL REVENUE REQUIREMENTS DUE TO PART 264 LAND DISPOSAL REGULATIONS TO SELECTED INDUSTRY
MEASURES, BY SIC CODE—Continued
[Low and high cost cases] ,
3313
3315
3321 5
3341 A
33516
34719
3711
3714
593-4010 , ...
1 037-5 500 , ,.
1 ,327-6,998
1 984 10 337,
4721-20085 ...
6.208-31,520 ,
930-7 086
716-7 042
Cost of production
13-86. .. „ .
.20-1.07
1 2- 66
24-1 23 ....
22~.92 „..
.65-3.31
00-02
01-.09 . ...
Annualized cost as a percentage of —
Value added
38-2.59 ... .
.39-2.06 „ , • ,
.16-.85 ,....-.
94-491
.79-3.37
.84-4.24
01-07
02- 16
Value of shipments
11- 76
16-.84.
09-.48
20-1 06
19 79
47-2 41
00 02
01-07
'Necessary data unavailable.
TABLE 18,—COMPARISON OF FIRST YEAR EXPENDITURES DUE TO PART 264 LAND DISPOSAL
REGULATIONS TO YEARLY CAPITAL OUTLAYS BY SIC CODE
[Low and high cost cases]
SIC code
0721 '
1300 :
2491
2812 .-.
2816
2819
2821
2822
2823
2824
2833
2851........
2861
2865
2869
2873
2874 „ „....
2879 ' '
2892
2899
291 1 '. .;.
2992
3312
3313 ,
3315-.. _
33215
3341
33516 - _
34719
371 1
3714
First year expenditure ($000)
$182 $9430
$991-38,997
$474-42 900
S995-1 28,807
$754-152,243 :
$4 556-461 702 .. .
$3,090-123,594
$590-1 14,029 ,
$869-46,052 _
$435-53,985 „
$141 8 507
$774-14,883
$333-44 958
$698-116,540 „
$1 719-137204
S1 06-7 358... .
$1.115-83,884
$433-31,665 i
$787-31 433
$15,049-783,313
$663-11 883
$6,671-81 084
$297-19,944
$889-17.563 _
$949-1 5 039 .
$1.380-23,654
$3,216-84.597
$4,424-103,817
$155-46.625
$265-29.022
First year expenditure as percentage yearly
capital expenditures
2.37-124.75.
.25-41.58.
.73-141.54.
.72-65.01.
.23-8.05.
1.14-219.32.
1.51-90.74.
.11-24.31.
.07-3.49.
.12-4.27.
5.31-6/48.31.
.84-131.04.
.10-6.90.
.10 to 4.52.
.781064.21.
3.03 to 166.98.
1.97 to 62.38.
.35 to 17.42.
4.97 to 40.56.
.52 to 3.83.
.49 to 50.22.
3.48 to 52.33.
8.39 to 68.53.
3.31 to 34.61.
1.02 to 105.25.
1.33 to 98.34.
.02 to 4.68.
.05 to 4.38.
1 Necessary data unavailable.
-------
Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32347
TABLE 19.—COMPARISON OF ANNUAL REVENUE REQUIREMENTS DUE TO PART 264 LAND DISPOSAL REGULATIONS AND PART 265 LAND DIPOSAL
REGULATIONS TO SELECTED INDUSTRY MEASURES BY SIC CODE
[Low and High Cost Cases]
07?1
1330 „.,.._...._........._,......_.,..
2491... „ ™
?ai» -„,-„„„-»
2816 »
2610
28? 1
S822,.,,, „ , ,
28?3«.».«»«..,m...n«».. «..„.,.
2824
ZfM mil ,..,,.„.,.,„.,„.-„-,..„..-
2861
2£69««~. «.
?fl73 .,„,„..
2874 . ..._
»7fc.,.,..,,,......,,,,,.,,..,.,-,,,-,-,,-,,~
2832i««»«»««»»...>...»...,»n....».
2869
2911
3313 ..__...,„.....,..
¥)»1K ....„„„.,„--„---- ,-,-,-,
3341
33519 ., , .1. .. .'. . . .
3711
3714
52-S5
S6-S13
36-S21
S12-S26
S12-S25 . •
S4-S6
S17-S36 . ..
S9-S8.....
$5-$1 1
$5-$1 1
S1-S4-. - -. .....
$4-$8
$4-$9 „
,S10-$23
S15-S35 . .. „ ,
S4-$10. ........
S1-S4
S9-S19
$4_$1 0
S5-S1 1
S89-S181
S3-S7
S23-S52
S2-S6
S4-S8
$4-$10
S15-S31
S4-S1 1
S3-S10
Cost of production
( >)
(i)
1 .24-4.25
78-1 66
1 65-3 46
59-1 42
.15-.32
84-1 25
.S8-.79 .*...
.19-.41
12-34
13-29 ,
6.35-15.64
45-1 07
.18-.41
21-52
06- 20
.82-1.72
1 .63-4.45
.80-1.94
.06-.12
.77-1.84
12-26
.46-1.20
72-1 59
78-1 78
69-1 39
2 20-4 86
01-.03
04- 13
Annualized cost as a percentage of—
Value added
(')
(i)
2.96-10.19
,99-2.10
2 54-5 34 ...
.77-1.85
28- 60
1 .68-3.25
1.04-2.17
31-69
10- 28 . . .
.21-.49
8 91-21 93
.84-1.98
27- 62 .... ...
.29-.71
.12-.42
1.34-2.82.
1 .71-4.68
1.13-2.74
33-67
1 .84-4.42 .....
.27-.61
1 .39-3.60 .„
1.38-3.05
.48-1.17
311-708
2.55-5.13
2.81-622
.05-.11
08- 22
Value of shipments
(!)
(')
1.01-3.46
.49-1.05.
1.14-2,41.
,39-.93.
.11-.23.
.61-.99.
.34-.71.
.14-.30.
.06-.17.
.09-.21.
4.21-10.37.
.3S-.78.
.12-.27.
.I3-.33.
.04-. 13.
.63-1.32.
1.06-2.88.
.53-1.28.
.05-11.
.59-1.41.
.10-.22.
.41-1.06.
.57-1 25.
.27-.66. .
.67-1.53.
.60-1.21.
1 60-3 53
.01-.03.
.03-.10.
'Nococsjiy data unavailable.
H, Sensitivity Analysis
The following reports on analysis of
the sensitivity of counterpumping costs
to the number of units or facilities
affected, plume size, technical
assumptions about hydrogeology and
treatment costs, and the use of a
confining slurry wall to reduce pumping
rates and costs. This section also
examines the potential cost of floodplain
requirements.
1. Sensitivity of Corrective Action
Costs. Total corrective action costs are
very sensitive to whether corrective
action occurs at individual units within
a facility or at the facility as a whole. As
described earlier in this preamble, two
distributions were used to develop total
costs in this analysis. The first
distributed individual land disposal
units by size and was used to estimate
D&O costs on a unit-by-unit basis and to
report costs by unit. The second
distribution combined individual units
to form multi-unit land disposal facilities
and was used to estimate total
corrective action costs on the basis of
total acreage at land disposal sites.
If corrective action costs were to be
estimated using the first distribution (on
a unit-by-unit basis), instead of on a
facility-by-facility basis, total costs
reported would be significantly higher.
Ranges of corrective action costs using
the two distributions are reported in
Table 20.
TABLE 20.—COMPARISON OF CORRECTIVE AC-
TION COSTS USING UNITS AND FACILITIES
($000,000)
Scenario
5662 units.
2 424 "
Corrective action costs
Detect year
49 and
pump 20 '
$96
51
Detect year
0 and pump
150'
$1.176
677
'Years using strategy 1.
'Years using strategy 2.
As table 20 shows, if all 5,682 land
disposal units were to undertake
corrective action individually,
counterpumping costs would range from
$96 million to $1,176 million per year and
would be 80 to 90 percent higher than
the total corrective action costs reported
in Total Costs.
Both of these estimates depend in part
on plume sizes, which in this analysis
were necessarily related to the surface
areas used for waste management.
However, areas used are not directly
reported on the Part A of the permit
application for some units, and therefore
had to be derived. In addition, plumes
may be larger than the facility area
when corrective action begins due to
irregular shapes, the orientation of the
facility relative to ground water flow, or
site-specific constraints on the location
of recovery wells. The 50 percent area
add-on used for sites with more than
one type of unit deals with some of this
imprecision. In any event, corrective
action costs are relatively insensitive to
plume size, if hydrogeologic conditions
are held constant. As reported in table
21, the cost of corrective action for a 25
acre plume is only 28 to 45 percent more
expensive than counterpumping for a 5
acre plume, although the size of the
plume has increased by 400 percent.
Similarly, while a 125-acre plume is 125
times bigger than a 1-acre plume, the
counterpumping cost associated with
the 125-acre plume is only 1.9 to 2.6
times greater, depending on the strategy
used and the timing of corrective action.
TABLE 21.—COMPARISON, OF INCREASES IN
COUNTERPUMPING COSTS WITH INCREASES
IN PLUME SIZE
Plume
size in
acres
1
5
25
75
125
Counterpumping cost
Strategy 1 for 20 years
starting in year 49
SOOO
16
18
23
28
30
Percent
change
from
previous
value
13
28
22
7
Strategy 2 for 150
years starting in year 0
SOOO
180
225
327
420
466
Percent
change
from
previous
value .
25
45
28
11
In the corrective action scenario
where each unit takes corrective action
individually, the average plume size is
7.3 acres. The average plume size
increases to 15.6 acres when it is
-------
32348
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
assumed that corrective action is taken
on a facility basis. Even this difference,
which probably is greater than the range
of error in our plume size estimates, has
an insignificant effect on total corrective
action costs.
2. Sensitivity of Costs to
Hydrogeologic Assumptions. EPA
examined the effects of alternative
assumptions regarding aquifer
transmissivity and gradient on
corrective action costs for two plume
sizes.19 The Agency found that changing
gradient or transmissivity assumptions
has almost no effect on costs for small
plumes under Strategy 1 conditions.
However, for large plumes changing the
gradient from 0.5 to 50 feet per mile or
changing the transmissivity from 10,000
to 1,000,000 gallons per day per foot can
increase the annual revenue
requirement calculated for
counterpumping by about 50 percent.
Under Strategy 2 conditions, the same
changes in transmissivity can increase
costs for small plumes by 50 percent and
costs for large plumes by about 150
percent. Details of this analysis appear
in the docket report.
3. Sensitivity of Costs to Treatment
Assumptions. All corrective action cost
estimates displayed in this preamble
assume that the ground water removed
through counterpumping is treated in a
facility built on site to deal with a
simple mix of contaminants in low
concentrations. EPA used a simple
average of costs for three types of
treatment: activated carbon; reverse
osmosis; and a treatment train
consisting of coagulation, flocculation,
sedimentation and filtration. These
processes are capable of addressing the
bulk of potential ground water
contaminants, and except in unusual
cases the concentrations of pollutants
that are likely to be encountered should
be within the ranges that can be treated
by these systems.
On balance, these estimates give a
reasonable indication of likely costs in
average situations. Specific scenarios
would need to be addressed to
substantially improve on these
estimates.
Moving from an average of treatment
costs to costs for a single approach can
change corrective action costs up or
down by a third to a half.
19 In all cases, the small plume (100 ft x 200 fi) is
approximately the size of the plume used to
estimate corrective action costs for a £ acre surface
impoundment. This is two and one-half times as
large as the plume size for the smallest [500 MT/yr)
landfill modelled. The large plume (1000 ft x 2000 ft)
is close in size to the plume used to estimate costs
for a 35,000 metric ton per year landfill. A 20 acre
surface impoundment would involve about the same
size plume.
Some cost decreases may be possible
if the pumped water contains only
volatile pollutants that can be treated
through air stripping. Where the
volumes of recovered water are very
low and the contaminants to be
removed are of a suitable kind, pre-
engineered treatment equipment can be
trucked to the site at some cost savings.
Large cost increases are possible if the
recovered water contains contaminants
in high .concentrations,.or if the
recovered water contains a mixture of
contaminants. Mixtures can require use
of a combination of the approaches
examined here, or use of more complex
chemical or biological treatment.
(Details are contained in the docket
report)
4. Adding a Slurry Wall to Reduce the
Pumping Rate. EPA also examined an
alternative strategy for compliance
based on use of a confining slurry wall
and a surface cover to minimize the
amount of pumping and treatment
required. This approach removes
contamination, but at a very slow rate,
so that for purposes of cost calculation,
it must be assumed that the plume will
exist for a very long time. EPA found
that this approach could save money hi
many cases, compared to pumping at a
higher rate over a shorter, period of time.
The difficulty in using this technique
may be in demonstrating that the plume
will be effectively contained and
removed.
- EPA estimated the cost of this
strategy for a small plume (100 ft x 200
ft), since slurry wall costs increase more
rapidly with plume size than do
counterpumping costs. EPA determined
that with a slurry wall in place pumping
rates would be in the range of 10,000 to
50,000 gallons per year (38 to 189 MT/
year). Because these rates are very low
relative to what they would be without
the slurry wall (4 to 22 million gallons
per year under base case conditions),
EPA assumed that the contaminated
ground water would be treated in pre-
engineered facilities trucked to the site,
at a cost of $85 per 1,000 gallons or $22
per metric ton. At this cost, over 250,000
gallons of recovered water—five to
twenty-five times the amount
expected—could be treated before a
slurry wall becomes financially
unattractive. ,
Use of a slurry wall would be even
more attractive under pessimistic
assumptions regarding gradient and
transmissivity, because these changes
would not affect the costs of the slurry
wall approach. The slurry wall approach
would be much less attractive with
deeper plumes, and infeasible at depths
greater than 150 feet.
5. Costs ofFloodplain Standards. The
Part 264 regulations require that
facilities located in 100-year floodplains
be designed, constructed, operated, and
maintained to prevent washout of any
hazardous waste by a 100-year flood.
Dike costs were only estimated for
surface impoundments. It was assumed
that impoundments are likely to be
located in floodplains because they are
often part of systems for treating
industrial effluent before it is discharged
in s.urface water. It was assumed that
dikes are built around 3 sides of the
surface impoundment, that there is a 40'
buffer zone between tie surface
impoundment and the dike, and that
dike construction is entirely
independent from the surface
impoundment.
EPA estimated the costs of
constructing dikes of various heights to
withstand the effects of a 100-year flood.
Actual dike heights are likely to vary
with floodplain topographies, river
depths, and heights during 100-year
floods. Costs were estimated for dike
heights of 2, 3, 5, and 9 meters, but the 3-
meter (about 10 feet) height is used as
an average cost estimate. Dike widths
varied with height and ranged from 14
meters for a 2-meter high dike to 49
meters for a 9-meter high dike. The
width of the dike significantly increases
the amount of land required for the
facility. For example, a %-acre surface
impoundment would need to be situated
on 1.5 acres to accommodate the buffer
zone and a 3-meter dike. Similarly, an 11
acre surface impoundment would
require about 16 acres to allow for the
buffer area and a 3-meter dike.
Annual revenue requirements for
dikes of various heights were estimated
in the same way that other D&O revenue
requirements were estimated for surface
impoundments. Costs for a 3 meter dike
ranged from $3,000 for a %-acre surface
impoundment to $17,000 for an ll'-acre
impoundment. For smaller surface
impoundments, these costs were about
50 percent of the basic costs of
co.mplying with the Part 264 regulations,
and roughly 20 to 25 percent of the costs
of retrofitting or replacing a facility. For
large surface impoundments, a 3-meter
dike would add about 15 percent to the
basic compliance cost, and about 6
percent to the retrofit or replacement
cost.
If it is assumed that all surface
impoundments construct 3-meter dikes
to protect against washout from a 100-
year flood, the total incremental cost
would be $29 million.20
20 Costs were estimated on a unit-by-unit basis for
all 4240 surface impoundments. Estimating costs on
-------
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32349
X. List of Subjects
40 CFR Partl?2
Administrative practice and
procedure, Air pollution control,
Hazardous materials, Reporting
requirements,, Waste treatment and
disposal, Water pollution control, Water
supply, Confidential business
information.
40 CFR Part 260
Administrative practice and
procedure, Confidential business
information, Hazardous materials,
Waste treatment and disposal.
40 CFR Part 264
Hazardous materials, Packaging and
containers, Reporting requirements,
Security measures, Surety bonds, Waste
treatment and disposal.
40 CFR Part 265
Hazardous materials, Packaging and
containers, Reporting and recordkeeping
requirements, Security measures, Surety
bonds, Waste treatment and disposal,
Waste supply.
Dated: July 9,1982.
Anna M. Gorsuch,
Administrator.
For the reasons set out in the
preamble, 40 CFR Parts 260,264,265,
and 122 are amended as set forth below.
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The Authority citation for Part 260
reads as follows:
Authority: Sees. 1006, 2002(a), 3001 through
3007,3010, and 7004, 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), 6921
through 6927, 6930, and 6974).
§ 260.10 [Amended]
2.40 CFR Part 260 is amended by
removing the following from § 260.10:
"Constituent" or "hazardous waste
constituent" means a constituent which
caused the Administrator to list the
hazardous waste in Part 261, Subpart D,
of this chapter, or a constituent listed in
Table 1 of § 261.24 of this chapter.
3. 40 CFR Part 260 is amended by
adding the following terms and
definitions to § 260.10 in alphabetical ,
order:
"Certification" means a statement of
professional opinion based upon
knowledge and belief.
"Existing portion" means that land
surface area of an existing waste
a fucillty-by-facility basis for all land disposal sites
would increase tha total cost reported here by about
75 percent.
management unit, included hi the
original Part A permit application, on
which wastes have been placed prior to
the issuance of a permit.
"Hazardous waste constituent" means
a constituent that caused the
Administrator to list the hazardous
waste in Part 261, Subpart D, of this
chapter, or a constituent listed in Table
1 of § 261.24 of this chapter.
"Treatment Zone" means a soil area
of the unsaturated zone of a land
treatment unit within which hazardous
constituents are degraded, transformed,
or immobilized.
"Uppermost aquifer" means the
geologic formation nearest the natural
ground surface that is an aquifer, as well
as lower aquifers that are hydraulically
interconnected with this aquifer within
the facility's property boundary.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
4. In 40 CFR Part 264, the Table of
Contents is amended by adding listings
for Subparts F, M, and N, and revising
listings for Subparts K and L, to read as
follows:
Subpart F—Ground-water Protection
264.90 Applicability.
264.91 Required programs.
264.92 Ground-water protection standard.
264.93 Hazardous constituents.
264.94 Concentration limits.
264.95 Point of compliance.
264.96 Compliance period.
264.97 General ground-water monitoring
requirements.
264.98 Detection monitoring program.
264.99 Compliance monitoring program.
264.100 Corrective action program.
264.101-264.109 [Reserved]
Subpart K—Surface Impoundments
264.220 Applicability.
264.221 Design and operating requirements.
264.222 Double-lined surface
impoundments: Exemption from Subpart
F ground-watePprotection requirements.
264.223-264.225 [Reserved]
264.226 Monitoring and inspection.
264.227 Emergency repairs; contingency
plans.
264.228 Closure and post-closure care.
264.229 Special requirements for ignitable or
reactive waste.
264.230 Special requirements for
incompatible wastes.
264.231-264.249 [Reserved]
Subpart L—Waste Piles
264.250 Applicability.
264.251 Design and operating requirements.
264.252 Double-lined piles: Exemption from
Subpart F ground-water protection
requirements.
264.253 Inspection of liners: Exemption from
Subpart F ground-water protection
requirements.
264.254 Monitoring and inspection.
264.255 [Reserved]
264.256 Special requirements for ignitable or
reactive waste.
264.257 Special requirements for
incompatible wastes.
264.258 Closure and post-closure care.
264.259-264.269 [Reserved]
Subpart M—Land Treatment
264.270 Applicability.
264,271 Treatment program.
264.272 Treatment demonstration.
264.273 Design and operating requirements.
264.274-264.275 [Reserved]
264.276 Food-chain crops.
264.277 [Reserved]
264.278 Unsaturated zone monitoring.
264.279 Recordkeeping.
264.280 Closure and post-closure care.
264.281 Special requirements for ignitable or
reactive waste.
264.282 Special requirements for
incompatible wastes.
264.283-264.299 [Reserved]
Subpart N—Landfills
264.300 Applicability.
264.301 Design and operating requirements.
264.302 Double-lined landfills: Exemption
froirfSubpart F ground-water protection
requirements.
264.303 Monitoring and inspection.
264.304-264.308 [Reserved]
264.309 Surveying and recordkeeping.
264.310 Closure and post-closure care.
264.311 [Reserved]
264.312 Special requirements for ignitable or
reactive waste.
264.313 Special requirements for
incompatible wastes.
264.314 Special requirements for liquid
waste.
264.315 Special requirements for containers.
264.316 Disposal of small containers of
hazardous waste in overpacked drums
(lab packs].
264.317-264.339 [Reserved]
* * * * *
5. The authority citation for Part 264
reads as follows:
Authority: Sees. 1006, 2002(a), 3004, and
3005 of the Solid Was.te 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].
6. In 40 CFR Part 264, Subpart B,
§ § 264.10(b), 264.15(b)(4), and
264.18(b)(l) are revised to read as
follows:
§264.10 Applicability.
* * * * *
(b) Section 264.18(b) applies only to
facilities subject to regulation under
Subparts I through O of this part.
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32350 . Federal Register / Vol. 47. No. 143 / Monday, July 26. 1982 / Rules and
§ 264.15 General inspection requirements.
* * * . * *
{b) * * *
(4) The frequency of inspection may
vary for the items on the schedule.
However, it should be based on the rate
of possible deterioration of the
equipment and the probability of an
environmental or human health incident
if the deterioration or malfunction of
any operator error goes undetected
between inspections. Areas subject to
spills, such as loading and unloading
areas, must be inspected daily when in
use. At a minimum, the inspection
schedule must include the terms and
frequencies called for in §§ 264.174,
264.194, 264.226, 264.253, 264.254, 264.303,
and 264.347, where applicable.
§ 264.18 Location standards.
*****
(b) Floodplains. (1) A facility located
in a 100-year floodplain must be
designed, constructed, operated, and
maintained to prevent washout or any
hazardous waste by a 100-year flood,
unless the owner or operator can
demonstrate to the Regional
Administrator's satisfaction that:
(i) Procedures are in effect which will
cause the waste to be removed safely,
before flood waters can reach the
.facility, to a location where the wastes
will not be vulnerable to flood waters;
or
(ii) For existing surface
, impoundments, waste piles, land
treatment units, and landfills, no
adverse effects on human health or the
' environment will result if washout
occurs, considering:
(A) The volume and physical and
chemical characteristics of the waste in
the facility;
(B) The concentration of hazardous
constituents that would potentially
affect surface waters as a result of
washout;
(C) The impact of such concentrations
on the current or potential uses of and
water quality standards established for
the affected surface waters; and
(D) The impact of hazardous
constituents on the sediments of
affected surface waters or the soils of
the 100-year floodplain that could result
from washout.
*****
7. In 40 CFR Part 264, Subpart E,
§ 264.73 is amended by revising
paragraph (bX6), and § 264.77 is
amended by redesignating paragraph (c)
as paragraph (b). It is further amended
by revising newly redesignated
paragraph (b) and adding a new
paragraph (c) to read as follows:
§ 264.73 Operating record.
* * *v * * .V
(b)***'s "'
(6) Monitoring, testing, or analytical
data where required by Subpart F and
§§ 264.226, 264.253, 264.254, 264.276,
264.278, 264.280, 264.303, 264.309, and
264.347;
§ 264.77 Additional reports.
* * * * *
(b) Facility closures specified in
§264.115; and
(c) As otherwise required by Subparts
F and K-N.
8.40 CFR Part 264 is amended by
adding -Subpart F to read as follows:
Subpart F—Ground-water Protection
§264.90 Applicability.
(a) Except as provided in paragraph
(b) of this section, the regulations hi this
subpart apply to owners and operators
of facilities that treat, store, or dispose
of hazardous waste in surface
impoundments, waste piles, land
treatment units, or landfills. The owner
or operator must satisfy the
requirements of this subpart for all
wastes (or constituents thereof)
contained in any such waste
management unit at the facility that
receives hazardous waste after the
effective date of this subpart
(hereinafter referred to as a "regulated
unit"). Any waste or waste constituent
migrating beyond the waste
management area under § 264.95(b) is
assumed to originate from a regulated
unit unless the Regional Administrator
finds that such waste or waste
constituent originated from another
source.
(b) The owner or operator is not
subject to regulation under this subpart
if:
(1) He is exempted under § 264.1;
(2) He designs and operates a surface
impoundment in compliance with
§ 264.222, a pile in compliance with
§ 264.250(c), § 264.252, or § 264.253, or a
landfill in compliance with § 264.302;
(3) The Regional Administrator finds,
pursuant to § 264.280(d), that the
treatment zone of a land treatment unit
does not contain levels of hazardous
constituents that are above background
levels of those constituents by an
amount that is statistically significant,
and if an unsaturated zone monitoring
program meeting the requirements of
§ 264.278 has not shown a statistically
significant increase in hazardous
constituents below the treatment zone
during the operating life of the unit. An
exemption under this paragraph can
only relieve an owner or operator of
responsibility to meet the requirements
of this subpart during the post-closure
care period; or
(4) The Regional Administrator finds
that there is no potential for migration of
liquid from a regulated unit to the
uppermost aquifer during the active life
of the regulated unit (including the
closure period) and the post-closure care
period specified under § 264.117. This
demonstration must be certified by a
qualified geologist or geotechnical
engineer. In order to provide an
adequate margin of safety in the
prediction of potential migration of
liquid, the owner or operator must base
any predictions made under this
paragraph on assumptions that
maximize the rate of liquid migration.
- (c) The regulations under this subpart
apply during the active life of the
regulated unit (including the closure
period). After closure of the regulated
unit, the regulations in this subpart:
(1) Do not apply if all waste, waste
residues, contaminated containment
system components, and contaminated
subsoils are removed or decontaminated
at closure;
(2) Apply during the post-closure care
period under § 264.117 if the owner or
operator is conducting a detection
monitoring program under § 264.98; or
(3) Apply during the compliance
period under § 264.96 if the owner or
operator is conducting a compliance
monitoring program under § 264.99 or a
corrective action program under
§ 264.100.
§ 264.91 Required programs.
(a) Owners and operators subject to
this subpart must conduct a monitoring
and response program as follows:
(1) Whenever hazardous constituents
under § 264.93 from a regulated unit are
detected at the compliance point under
§ 264.95, the owner or operator must
institute a compliance monitoring
program under § 264.99;
(2) Whenever the ground-water
protection standard under § 264.92 is
exceeded, the owner or operator must
institute a corrective action program
under § 264.100;
(3) Whenever hazardous constituents
under § 264.93 from a regulated unit
exceed concentration limits under
§ 264.94 in ground water between the
compliance point under § 264.95 and the
downgradient facility property
boundary, the owner or operator must
institute a corrective action program
under § 264.100; or
(4) In all other cases, the owner or
operator must institute a detection
monitoring program under § 264.98.
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32351
(b) The Regional Administrator will
specify in the facility permit the specific
elements of the monitoring and response
program. The Regional Administrator
may include one or more of the
programs identified hi paragraph (a) of
this section in the facility permit as may
be necessary to protect human health
and the environment and will specify
the circumstances under which each of
the programs will be required. In
deciding whether to require the owner
or operator to be prepared to institute a
particular program, the Regional
Administrator will consider the
potential adverse effects on human
health and the environment that might
occur before final administrative action
on a permit modification application to
incorporate such a program could be
taken.
§ 294.92 Ground-water protection
standard
The owner or operator must comply
with conditions specified in the facility
permit that are designed to ensure that
hazardous constituents under § 264.93 •
entering the ground water from a
regulated unit do not exceed the ,
concentration limits under § 264.94 in
the uppermost aquifer underlying the
waste management area beyond the
point of compliance under § 264.95
during the compliance period under
§ 264.96. The Regional Administrator
will establish this ground-water
protection standard in the facility permit
when'hazardous constituents have
entered the ground water from a
regulated unit
§264.93 Hazardous constituents.
[a) The Regional Administrator will
specify in the facility permit the
hazardous constituents to which the
ground-water protection standard of
S 264.92 applies. Hazardous constituents
are constituents identified in Appendix
VIII of Part 261 of this chapter that have
been detected in ground water in the
uppermost aquifer underlying a
regulated unit and that are reasonably
expected to be in or derived from waste
contained in a regulated unit, unless the
Regional Administrator has excluded
them under paragraph (b) of this section.
(b) The Regional Administrator will
exclude an Appendix VIII constituent
from the list of hazardous constituents
specified in the facility permit if he finds
that the constituent is not capable of
posing a substantial present or potential
hazard to human health or the
environment In deciding whether to
grant an exemption, the Regional
Administrator will consider the
following:
(1) Potential adverse effects on
ground-water quality, considering:
(i) The physical and chemical
characteristics of the waste in the
regulated unit, including its potential for
migration;
(ii) The hydrogeological
characteristics of the facility and
surrounding land;
(iii) The quantity of ground water and
the direction of ground-water flow;
(iv) The proximity and withdrawal
rates of ground-water users;
(v) The current and future uses of
ground water in the area;
(vi) The existing quality of ground ,
water, including other sources of
contamination and then- cumulative
impact on the ground-water quality;
(vii) The potential for health risks
caused by human exposure to waste
constituents;
(viii) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituents;
(ix) The persistence and permanence
of the potential, adverse effects; and
(2) Potential adverse effects on
hydraulically-connected surface water
quality, considering:
(i) The volume and physical and
chemical characteristics of the waste to
the regulated unit;
(ii) The hydrogeological
characteristics of the facility and
surrounding land;
(iii) The quantity and quality of
ground water, and the direction of
ground-water flow;
(iv) The patterns of rainfall in the
region;
(v) The proximity of the regulated unit
to surface waters;
(vi) The current and future uses of
surface waters in the area and any
water quality standards established for
those surface waters;
(vii) The existing quality of surface
water, including other sources of
contamination and the cumulative
impact on surface water quality,
(viii) The potential for health risks
caused by human exposure to waste
constituents;
(ix) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituents; and
(x) The persistence and permanence
of the potential adverse effects.
(c) In making any determination under
paragraph (b) of this section about the
use of ground water in the area around
the facility, the Regional Administrator
will consider any identification of
underground sources of drinking water
and exempted aquifers made under
§ 122.35 of this chapter.
§ 264.94 Concentration limits.
(a) The Regional Administrator will
specify in the facility permit
concentration limits in the ground water
for hazardous constituents established
under § 264.93. The concentration of a
hazardous constituent:
(1) Must not exceed the background
level of that constituent hi the ground
water at the tune that limit is specified
in the permit; or
(2) For any of the constituents listed in
Table. 1, must not exceed the respective
value given in that Table if the
background level of the constituent is
below the value given in Table 1; or
(3) Must not exceed an alternate limit
established by the Regional
Administrator under paragraph (b) of
this section.
(b) The Regional Administrator will
establish an alternate concentration
limit for a hazardous constituent if he
finds that the constituent will not pose a
substantial present or potential hazard
to human health or the environment as
long as the alternate concentration limit
is not exceeded. In establishing
alternate concentration limits, the
Regional Administrator will consider the
following factors:
(1) Potential adverse effects on
ground-water quality, considering:
TABLE 1.—MAXIMUM CONCENTRATION OF CON-
STITUENTS FOR GROUND-WATER PROTEC-
TION
Constituent
Arsenic 0.05
Barium « ». - 1.0
Cadmium « 0.01
Chromium ~ 0.05
Lead.... , „ „,. o.OS
Mercufy 0.002
Selenium « ~ • 0.01
Silver 0.05
Endrin (l,2,3,4,10,10-hexachloro-1.7-epoxy-
1,4,4a,5,6,7 ASaoctahydro-1, 4-endo. endo-
5,8-dimethano naphthalene) 0.0002
Lindane (1,2,3,4,5,6-hexachlorocydohexane,
gamma isomer) _ _ 0.004
Methoxychlor (1,1,1-Trlchloro-2,2-bis (p-mothox-
yphenylethane) 0.1
Toxaphene (C<—HC—dfi Technical chlorinated
camphene, 67-69 percent chlorine) 0.005
2,4-D (2,4-Kchlorophenoxyacetic acid) 0.1
2,4,5-TP Silvex (2,4,5-Trichlorophenoxypropionic
acid) «. ....... - ~ 0.01
Maximum
concentra-
tion '
< Milligrams per liter.
(i) The physical and chemical
characteristics of the waste In the
regulated unit, including its potential for
migration;
(ii) The hydrogeological
characteristics of the facility and
surrounding land;
(iii) The quantity of ground water and
the direction of ground-water flow;
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32352
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
(iv) The proximity and withdrawal
rates of ground-water users;
(v) The current and future uses of
ground water in the area;
(vi) The existing quality of ground
water, including other sources of
contamination and their cumulative
impact on the ground-water quality;
(vii) The potential for health risks
caused by human exposure to waste
constituents;
(viii) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituents;
(ix) The persistence and permanence
of the potential adverse effects; and
[2] Potential adverse effects on
hydraulica lly-connected surface-water
quality, considering:
(i) The volume and physical and
chemical characteristics of the waste in
the regulated unit;
(ii) The hydrogeological
characteristics of the facility and
surrounding land;
(iii) The quantity and quality of
ground water, and the direction of
ground-water flow;
(iv) The patterns of rainfall in the
region;
(v) The proximity of the regulated unit
to surface waters;
[vi) The current and future uses of
surface waters in the area and any
water quality standards established for
those surface waters;
(vii) The existing quality of surface
water, including other sources of
contamination and the cumulative
impact on surface-water quality;
(viii) The potential for health risks
caused by human exposure to waste
constituents;
(ix) The potential damage to wildlife,
crops, vegetation, and physical
structures caused by exposure to waste
constituents; and
(x) The persistence and permanence
of the potential adverse effects.
(c) In making any determination under
paragraph (b) of this section about the
use of ground water in the area around
the facility the Regional Administrator
will consider any identification of
underground sources of drinking water
and exempted aquifers made under
§ 122.35 of this chapter.
§ 264.95 Point of compliance.
(a) The Regional Administrator will
specify in the facility permit the point of
compliance at which the ground-water
protection standard of § 264.92 applies
and at which monitoring must be
conducted. The point of compliance is a
vertical surface located at the
hydraulically downgradient limit of the
waste management area that extends
down into the uppermost aquifer
underlying the regulated units.
(b) The waste management area is the
limit projected in the horizontal plane of
the area on which waste will be placed
during the active life of a regulated unit.
(1) The waste management area
includes horizontal space taken up by
any liner, dike, or other barrier designed
to contain waste in a regulated unit.
(2) If the facility contains more than
one regulated unit, the waste
management area is described by an
imaginary line circumscribing the
several regulated units.
§ 264.96 Compliance period.
(a) The Regional Administrator will
specify in the facility permit the
compliance period during which the
ground-water protection standard of
§ 264.92 applies. The compliance period
is the number of years equal to the
active life of the waste management
area (including any waste management
activity prior to permitting, and the
closure period.)
(b) The compliance period begins
when the owner or operator initiates a
compliance monitoring program meeting
the requirements of § 264.99.
(c) If the owner or operator is engaged
in a corrective action program at the end
of the compliance period specified in
paragraph (a) of this section, the
compliance period is extended until the
owner or operator can demonstrate that
the ground-water protection standard of
§ 264.92 has not been exceeded for a .
period of three consecutive years.
§ 264.97 General ground-water monitoring
requirements.
The owner or operator must comply
with the following requirements for any
ground-water monitoring program
developed to satisfy § 264.98, § 264.99,
or § 264.100:
(a) The ground-water monitoring
system must consist of a sufficient
number of wells, installed at appropriate
locations and depths to yield ground-
water samples from the uppermost
aquifer that:
(1) Represent the quality of
background water that has not been
affected by leakage from a regulated
unit; and
(2) Represent the quality of ground
water passing the point of compliance.
(b) If a facility contains more than one
regulated unit, separate ground-water
monitoring systems are not required for
each regulated unit provided that
provisions for sampling the ground
water in the uppermost aquifer will
enable detection and measurement at
the compliance point of hazardous
constituents from the regulated units
that have entered the ground wafer in
the uppermost aquifer.
(c) All monitoring wells must be cased
in a manner that maintains the integrity
of the monitoring-well bore hole. This
casing must be screened or perforated
and packed with gravel or sand, Where
necessary, to enable collection of
ground-water samples. The annular
space (i.e., the space between the bore
hole and well casing) above the
sampling depth must be sealed to
prevent contamination of samples and
the ground water.
(d) The ground-water monitoring
program must include consistent
sampling and analysis procedures that
are designed to ensure monitoring
results that provide a reliable indication
of ground-water quality below the waste
management area. At a minimum the
program must include procedures and
techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures; and
(4) Chain of custody control.
(e) The ground-water monitoring
program must include sampling and
analytical methods that are appropriate
for ground-water sampling and that
accurately measure hazardous
constituents in ground-water samples.
(f) The ground-water monitoring
program must include a determination of
thp ground-water surface elevation each
time ground water is sampled.
(g) Where appropriate, the ground-
water monitoring program must
establish background ground-water
quality for each of the hazardous
constituents or monitoring parameters or
constituents specified hi the permit.
(1) In the detection monitoring
program under § 264.98, background
ground-water quality for a monitoring
parameter or constituent must be based
on data from quarterly sampling of wells
upgradient from the waste management
area for one year.
(2) In the compliance monitoring
program under § 264.99, background
ground-water quality for a hazardous
constituent must be based on data from
upgradient wells that:
(i) Is available before the permit is
issued;
(ii) Accounts for measurement errors
in sampling and analysis; and
(iii) Accounts, to the extent feasible,
for seasonal fluctuations in background
ground-water quality if such fluctuations
are expected to affect the concentration
of the hazardous constituent.
(3) Background quality may be based
on sampling of wells that are not
upgradient from the waste management
area where:
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Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations 32353
(i) Hydrogeologic conditions do not
allow the owner or operator to
determine whatwells axe upgradient; or
(ii) Sampling at other wells will
provide an indication of background
ground-water quality that is as
representative or more representative
than that provided by the upgradient
wells.
(4) In developing the data base used
to determine a background value for
each parameter or constituent, the
owner or operator must take a minimum
of one sample from each well and a
minimum of four samples from the entire
system used to determine background
ground-water quality, each time the
system is sampled.
(h) The owner or operator must use
the following statistical procedure in
determining whether background values
or concentration limits have been
exceeded:
(1) If, in a detection monitoring
program, the level of a constituent at the
compliance point is to be compared to
the constituent's background value and
that background value has a sample
coefficient of variation less than 1.00:
(i) The owner or operator must take at
least four portions from a sample at
each well at the compliance point and
determine whether the difference
between the mean of the constituent at
each well (using all portions taken} and
the background value for the constituent
is significant at the 0.05 level using the
Cochran's Approximation to the
Behrens-Fisher Student's t-test as
described in Appendix IV of this part. If
the test indicates that the difference is
significant, the owner or operator must
repeat the same procedure (with at least
the same number of portions as used in
the first test) with a fresh sample from
the monitoring well. If this second round
of analyses indicates that the difference
is significant, the owner or operator
must conclude that a statistically
significant change has occurred; or
(ii) The owner or operator may use an
equivalent statistical procedure for
determining whether a statistically
significant change has occurred. The
Regional Administrator will specify such
a procedure hi the facility permit if he
finds that the alternative procedure
reasonably balances the probability of
falsely identifying a non-contaminating
' regulated unit and the probability of
failing to identify a contaminating
regulated unit hi a manner that is
comparable to that of the statistical
procedure described in paragraph
(h)(l)(i) of this section.
(2) In all other situations in a
detection monitoring program and in a
compliance monitoring program, the
owner or operator must use a statistical
procedure providing reasonable
confidence that the migration of
hazardous constituents from a regulated
unit into and through the aquifer will be
indicated. The Regional Administrator
will specify a statistical procedure in the
facility permit that he finds:
(i) Is appropriate for the distribution
of th'e data used to establish background
values or concentration limits; and
(ii) Provides a reasonable balance
between the probability of falsely
identifying a non-contaminating
regulated unit and the probability of
failing to identify a contaminating
regulated unit.
§ 264.98 Detection monitoring program.
An owner or operator required to
establish a detection monitoring
program under this subpart must, at a
minimum, discharge the following
responsibilities:
(a) The owner or operator must
monitor for indicator parameters (e.g.,
specific conductance, total organic
carbon, or total organic halogen), waste
constituents, or reaction products that
provide a reliable indication of the -
presence of hazardous confttuents in
ground water. The Regional
Administrator will specify the
parameters or constituents to be
monitored in the facility permit, after
considering the following factors:
(1) The types, quantities, and
concentrations of constituents in wastes
managed at the regulated unit;
. (2) The mobility, stability, and
persistance of waste constituents or
their reaction products in the
unsaturated zone beneath.the waste
management area;
(3) The detectability of indicator
parameters, waste constituents, and
reaction products in ground water; and
(4) The concentrations or values and
coefficients of variation of proposed
monitoring parameters or constituents in
the ground-water background.
(b) The owner or operator must install
a ground-water monitoring system at the
compliance point as specified under
§ 264.95. The ground-water monitoring
system must comply with § 264.97(a)(2),
(b), and (c).
(c) The owner or operator must
establish a background value for each
monitoring parameter or constituent
specified in the permit pursuant to
paragraph (a) of this section. The permit
will specify the background values for
each parameter or specify the
procedures to be used to calculate the
background values.
(1) The owner or operator must
comply with § 264,97(g) in developing
the data base used to determine
background values.
(2) The owner or operator must
express background values in a form
necessary for the determination of
statistically significant increases under ,
§ 264.97(h).
(3) In taking samples used in the
determination of background values, the
owner or operator must use a ground-
water monitoring system that complies
with §264,97(a)(l), (b), and (c).
(d) The owner or operator must
•determine ground-water quality at each
monitoring well at the compliance point
at least semi-annually during the active
life of a regulated unit (including the
closure p.eriod) and the post-closure care
period. The owner or operator must
express the ground-water quality at
each monitoring well in a form
necessary for the determination of
statistically significant increases under
§ 264.97(h).
(e) The owner or operator must
determine the ground-water flow rate
and direction in the uppermost aquifer
at least annually.
(f) The owner or operator must use
procedures and methods for sampling
and analysis that meet the requirements
of § 264.97 (d) and (e).
(g) The owner or operator must
determine whether there is a
statistically significant increase over
background values for any parameter or.
constituent specified in the permit
pursuant to paragraph (a) of this section
each time he determines ground-water
quality at the compliance point under
paragraph (d) of this section.
(1) In determining whether a
statistically significant increase has .
occurred, the owner'or operator must
compare the ground-water quality at
each monitoring well at the compliance
point for each parameter or constituent
to the background value for that
parameter or constituent, according to
the statistical procedure specified in the
permit under § 264.97(h).
' (2) The owner or operator must
determine whether there has been a
statistically significant increase at each
monitoring well at the compliance point
within a reasonable time period after
completion of sampling. The Regional
Administrator will specify that time
period in the facility permit, after
considering the complexity of the
statistical test and the availability of
laboratory facilities to perform the
analysis of ground-water samples.
(h) If the owner or operator
determines, pursuant to paragraph (g) of
this section, that there is a statistically
significant increase for parameters or
constituents specified pursuant to
paragraph (a) of this section at any
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32354 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
monitoring well at the compliance point,
he must:
(i) Notify the Regional Administrator
of this finding in writing within seven '
days. The notification must indicate
what parameters or constituents have
shown statistically significant increases;
(2) Immediately sample the ground
water in all monitoring wells and
determine the concentration of all
constituents identified in Appendix VIII
of Part 261 of this chapter that are
present in ground water;
(3) Establish a background value for
each Appendix VIII constituent that has
been found at the compliance point
under paragraph (h}(2) of this section, as
follows:
(i)-The owner or operator must comply
with § 264.97(g) in developing the data
base used to determine background
values;
(ii) The owner or operator must
express background values in a form
necessary for the determination of
statistically significant increases under
§ 264.97(h); and
(iii) In taking samples used in the
.determination of background values, the
owner or operator must use a ground-
water monitoring system that complies
with § 264.97(a)(l), (b), and (e);
(4) Within 90 days, submit to the
Regional Administrator an application
for a permit modification to establish a
compliance monitoring program meeting
the requirements of § 264.99. The
application must include the following
information:
(i) An identification of the
concentration of any Appendix VIII
constituents found hi the ground water
at each monitoring well at the
compliance point;
(ii) 'Any proposed changes to the
ground-water monitoring system at the
facility necessary to meet the
requirements of § 264.99;
.(iii) Any proposed changes to the
monitoring frequency, sampling and
analysis procedures or methods, or
statistical procedures used at the facility
necessary to meet the requirements of
§ 264.99; ;
(iv) For each hazardous constituent
found at the compliance point, a
proposed concentration limit under
§ 264.94(a)(l) or (2), or a notice of intent
to seek a variance under § 264.94(b); and
(5) Within 180 days, submit to the
Regional Administrator:
(i) All data necessary to justify any
variance sought under § 264.94(b); and
(ii) An engineering feasibility plan for
a corrective action program necessary to
meet the requirements of § 264.100,
unless:
(A) All hazardous constituents
identified under paragraph (h)(2) of this
section are listed in Table l.of § 264.94
and their concentrations do not exceed
the respective values given in that
Table; or
(B) The owner or operator has sought
a variance under f 264.94(b) for every
hazardous constituent identified under
paragraph (h)(2) of this section.
(i) If the owner or operator
determines, pursuant to paragraph (g) of
this section, that there is a statistically
significant increase of parameters or
consitutents specified pursuant to
paragraph (a) of this section at any
monitoring well at the compliance point,
he may demonstrate that a source other
than a regulated unit caused the
increase or that the increase resulted
from error in sampling, analysis, or
evaluation. While the owner or operator
may make a demonstration under this
paragraph hi addition to, or hi lieu of,
submitting a permit modification
application under paragraph (h)(4) of
this section, he is not relieved of the
requirement to submit a permit
modification application within the time
specified in paragraph (h)(4) of this
section unless the demonstration made
under this paragraph successfully shows
that a source other than a regulated unit"
caused the increase or that the increase
resulted from error in sampling,
analysis, or evaluation. In making a •
demonstration under this paragraph, the
owner or operator must;
(1) Notify the Regional Administrator
in writing within seven days of
determining a statistically significant
increase at the compliance point that he
intends to make a demonstration under
this paragraph;
(2) Within 90jiays, submit a report to
the Regional Administrator which
demonstrates that a source other than a
regulated unit caused the increase, or
that the increase resulted from error in-
sampling, analysis, or evaluation;
(3) Within 90 days, submit to the
Regional Administrator an application
for a permit modification to make any
appropriate changes to the detection
monitoring program at the facility; and
(4) Continue to monitor hi accordance
with the detection monitoring program
established under this section.
(j) If the owner or operator determines
that the detection monitoring program
no longer satisfies the requirements of
this section, he must, within 90 days,
submit an application for a permit
modification to make any appropriate
changes to the program.
(k) The owner or operator must assure
that monitoring and corrective action
measures necessary to achieve
compliance with the ground-water
protection standard under § 264.92 are '
taken during the term of the permit.
§ 264.99 Compliance monitoring program.
An owner or operator required to
establish a compliance monitoring
program under this subpart must, at a
minimum, discharge the following
responsibilities:
(a) The owner or operator must
monitor the ground water to determine
whether regulated units are in
compliance with the ground-water
protection standard under § 264.92. The
Regional Administrator will specify the
ground-water protection standard in the
facility permit, including:
(1) A list of the hazardous
constituents identified under § 264.93;
(2) Concentration limits under § 284.94
for each of those hazardous
constituents;
(3) The compliance point under
§ 264.95; and
(4) The compliance period under
§ 264.96.
(b) The owner or operator must install
a ground-water monitoring system at the
compliance point as specified under
§ 264.95. The ground-water monitoring
system must comply with § 264.97(a}(2),
(b), and (c).
(c) Where a concentration limit
established under paragraph (a)(2) of
this section is based on background
ground-water guality, the Regional
Administrator will specify the
concentration limit in the permit as
follows:
(1) If there is a high temporal
correlation between upgradient and
compliance point concentrations of the
hazardous constitutents, the owner or
operator may establish the-
concentration limit through sampling at
upgradient wells each time ground
water is sampled at the compliance
point. The Regional Administrator will
specify the procedures used for
determining the concentration limit in
this manner in the permit. In all other
cases, the concentration limit will be the
mean of the pooled data on the
concentration of the hazardous
constituent.
(2) If a hazardous constituent is
identified on Table 1 under §-264.94 and
the difference between the respective
concentration limit in Table 1 and the
background value of that constituent
under § 264.97(g) is not statistically
significant, the owner or operator must'
use the background value of the
constituent as the concentration limit In
determining whether this difference is
statistically significant, the owner or
operator must use a statistical procedure
providing reasonable confidence that a
real difference will be indicated. The
statistical procedure must:
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
32355
(i) Be appropriate for the distribution
of the data used to establish background
values; and
(ii) Provide a reasonable balance
between the probability of falsely
identifying a significant difference and-
the probability of failing to identify a
significant difference.
(3) The owner or operator must:
(i) Comply with § 264.97(g) in
developing the data base used to .
determine background values;
(ii) Express background values in a
form necessary for the determination of
<> statistically significant increases under
§ 264.97(h); and
(iii) Use a ground-water monitoring
system that complies with § 264.97(a)(l),
(b)t and (c).
(d) The owner or operator must
determine the concentration of
hazardous constituents in ground water
at each monitoring well at the
compliance point at least quarterly
during the compliance period. The
owner or operator must express the
concentration at each monitoring well in
a form necessary for the determination
of statistically significant increases
under § 264.97(h).
(e) The owner or operator must
determine the ground-water flow rate
and direction in the uppermost aquifer
at least annually.
(f) The owner or operator must
analyze samples from all monitoring
wells at the compliance point for all
constituents contained in Appendix VIII
of Part 261 of this chapter at least
annually to determine whether
additional hazardous constituents are
present in the uppermost aquifer. If the
owner or operator finds Appendix VIII
constituents in the ground water that are
not identified in the permit as hazardous
constituents, the owner or operator must
report the concentrations of these
additional constituents to the Regional
Administrator within seven days after
completion of the analysis.
(g) The owner or operator must use
procedures and methods for sampling
and analysis that meet the requirements
of § 264.97(d) and (e).
(h) The owner or operator must
determine whether there is a
statistically significant increase over the
concentration limits for any hazardous
constituents specified in the permit
pursuant to paragraph (a) of this section
each time he determines the
concentration of hazardous constituents
In ground water at the compliance point.
(1) In determining whether a
Statistically significant increase has
occurred, the owner or operator must
compare the ground-water quality at
each monitoring well at the compliance
point for each hazardous constituent to
the concentration limit for that
constituent according to the statistical
procedures specified in the permit under
§264.9701).
(2) The owner or operator must
determine whether there has been a
statistically significant increase at each
monitoring well at the compliance point,
within a reas6nable time period after
completion of sampling. The Regional
Administrator will specify that time
period in the facility permit, after
considering the complexity of the
statistical test and the availability of
laboratory facilities to perform the
analysis of ground-water samples.
(i) If the owner or operator
determines, pursuant to paragraph (h) of
this section, that the ground-water
protection standard is being exceeded at
any monitoring well at the point of
compliance, he must:
(1) Notify the Regional Administrator
of this finding in writing within seven
days. The notification must indicate
what concentration limits have been
exceeded.
(2) Submit to the Regional
Administrator an application for a
permit modification to establish a
corrective action program meeting the
requirements of § 264.100 within 180
days, or within 90 days if an engineering
feasibility study has been previously
submitted to the Regional Administrator
under § 264.98(h)(5). The application
must at a minimum include the following
information:
(i) A detailed description of corrective
actions that will achieve compliance
with the ground-water protection
standard specified in the permit under
paragraph (a) of this section; and
(ii) A plan for a ground-water
monitoring program that will
demonstrate the effectiveness of the
corrective action. Such a ground-water
monitoring program may be based on a
compliance monitoring program
developed to meet the requirements of
this section.
(j) If the owner or operator
determines, pursuant to paragraph (h) of
this section, that the ground-water
protection standard is being exceeded at
any monitoring well at the point of
compliance, he may demonstrate that a
source other than a regulated unit
caused the increase or that the increase
resulted from error in sampling, analysis
or evaluation. While the owner or
operator may make a demonstration
under this paragraph in addition to, or in
lieu of, submitting a permit modification
application under paragraph (i)(2) of this
section, he is not relieved of the
requirement to submit a permit
modification application within the time
specified in paragraph (i)(2) of this
section unless the demonstration made
under this paragraph successfully shows
that a source other than a regulated unit
caused the increase or that the increase
resulted from error in sampling,
analysis, or evaluation. In making a
demonstration under this paragraph, the
owner or operator must:
(1) Notify the Regional Administrator
in writing within seven days that he
intends to make a demonstration under
this paragraph;
(2) Within 90 days, submit a report to
the Regional Administrator which
demonstrates that a source other than a
regulated unit caused the standard to be
exceeded or that the apparent
noncompliance with the standards
resulted from error in sampling,
analysis, or evaluation;
(3) Within 90 days, submit to the -
Regional Administrator an application
for a permit modification to make any
appropriate changes to the compliance
monitoring program at the facility; and
(4) Continue to monitor in accord with
the compliance monitoring program
established under this section.
(k) If the owner or operator
determines that the compliance
monitoring program no longer satisfies
the requirements of this section, he
must, within 90 days, submit an
application for a permit modification to
make any appropriate changes to the
program.
(1) The owner or operator must assure
that monitoring and corrective action
measures necessary to achieve
compliance with the ground-water
protection standard under § 264.92 are
taken during the term of the permit.
§264.100 Corrective action program.
An owner or operator required to
establish a corrective action program
under this subpart must, at a minimum,
discharge the following responsibilities:
(a) The owner or operator must take
corrective action to ensure that
regulated units are in compliance with
the ground-water protection standard
under § 264.92. The Regional
Administrator will specify the ground-
water protection standard in the facility
permit, including:
(1) A list of the hazardous
constituents identified under § 264.93;
(2) Concentration limits under § 264.94
for each of those hazardous
constituents;
(3) The compliance point under
§ 264.95; and
(4) The compliance period under
§ 264.96.
(b) The owner or operator must
implement a corrective action program
that prevents hazardous constituents
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32356 Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations
from exceeding their respective
concentration limits at the compliance
point by removjng the hazardous waste
constituents or treating them in place.
The permit will specify the specific
measures that will be taken.
(c) The owner or operator must begin
corrective action within a reasonable
time period after the ground-water
protection standard is exceeded. The
Regional Administrator will specify that
time period in the facility permit. If a
facility permit includes a corrective
action program in addition'to a
compliance monitoring program, the
permit will specify when the corrective
action will begin and such a requirement
will operate in lieu of § 264.99(i){2).
(d) In conjunction with a corrective
action program, the owner or. operator
must establish and implement a ground-
water monitoring program' to
demonstrate the effectiveness of the
corrective action program. Such a
monitoring program may be based on
the requirements for a compliance
monitoring program under § 264.99 and
must.be as effective as that program in *
determining compliance with the
ground-water protection standard under
§ 264.92 and in determining the success
of a corrective action program under
paragraph (e) of this section, where
appropriate.
(e) In addition to the other
requirements of this section, the owner
or operator must conduct a corrective
action program to remove or treat in
place any hazardous constituents under
§ 264.93 that exceed concentration limits
under § 264.94 in ground water between
the compliance point under § 264.95 and
the downgradient facility property
boundary. The permit will specify the
measures to be taken.
(1) Corrective action measures under
this paragraph must be initiated and
completed within a reasonable period of
time considering the extent of
contamination.
(2) Corrective action measures under
this paragraph may be terminated once
the concentration of hazardous
constituents under § 264.93 is reduced to
levels below then1 respective
concentration limits under § 264.94.
(f) The owner or operator must
continue corrective action measures-
during the compliance period to the
extent necessary to ensure that the
ground-water protection standard is not
exceeded. If the owner or operator is
conducting corrective action at the end
of the compliance period, he must
continue that corrective action for as
long as necessary to achieve compliance
with the ground-water protection
standard. The owner or operator may
terminate corrective action measures
taken beyond the period equal to the
active -life of the waste management
area (including the closure period) if he
can demonstrate, based on data from
the ground-water monitoring program
under paragraph (d) of this section, that
the ground-water protection standard of
§ 264.92 has not been exceeded for a
period of three consecutive years.
(g) The owner or operator must report
in- writing to the Regional Administrator
on the effectiveness of the corrective
action program. The owner or operator
must submit these reports semi-
annually.
(h) If the owner or operator
determines that the corrective action
program no longer satisfies the
requirements of this section, he must,
within 90 days, submit an application
for a permit modification to make any
appropriate changes to the program:
§§264.101-264.109 [Reserved]
9. In 40 CFR Part 264, Subpart G,
§ 284.110 is amended by revising
paragraph (b), § 264.112 is amended by
revising paragraphs (a), introductory
text, and (a)(l), § 264.117 is amended by
revising paragraphs (a)(l)(i) and (ii), and
§ 264.118 is amended by revising
paragraph (a), introductory text, (a)(l),
(2}{i) and (ii) to read as follows:
§264.110 Applicability.
* * * * * ;
.(b) Sections 264.117-264.120 (which
concern post-closure care) apply to the
owners and operators of:
(1) All hazardous waste disposal
facilities; and
(2) Piles, and surface impoundments
from which the owner or operator
intends to remove the wastes at closure,
to the extent that these sections are
made applicable to such facilities in
§§ 264.228 and 264.258.
§ 264.112 Closure plan; amendment of
plan. . .
(a) The owner or operator of a •
hazardous waste management facility
must have a written closure plan. The .
plan must be submitted with the permit
application, in accordance with
§ 122.25(a)(13) of this chapter, and
approved by fee Regional Administrator
as part of the permit issuance
proceeding under Part 124 of this
chapter. In accordance with § 122.29 of
this chapter, the approved closure plan
will become a condition of any R'CRA
permit. The Regional Administrator's
decision must assure that that approved
closure plan is consistent with
§§ 264.111, 264.113, 264.114, 264.115, and
the applicable requirements of
§§ 264.178, 264.197, 264.228, 264.258,
264.280, 264.310, and 264.351. A copy of
the approved plan and all revisions to
the plan must be kept at the facility until
closure is completed and certified in
accordance with § 264.115. The plan
must identify steps necessary to
completely or partially close the facility
at any point during its intended
operating life and to completely close
the facility at the end of its intended
operating life. The closure plan must
include, at least:
(1) A description of how and when the
facility will be partially closed, if
applicable, and finally closed. The
description must identify the maximum
extent of the operation which will be
unclosed during the life of the facility,
and how the requirements of §§ 264.111,
264.113, 264.114, 264.115, and the
applicable closure requirements of
§ § 264.178, 264.197, 264.228, 264.258,
264.280, 264.310, and 264.351 will be met;
§ 264.1 17 Post-closure care and use of
property.
(i) Monitoring and reporting in
accordance with the requirements of
Subparts F, K, L, M, and N of this part;
and
(ii) Maintenance and monitoring of
waste containment systems in
accordance with the requirements of
Subparts F, K, L, M, and N of this part.
§ 264.118 Post-closure plan; amendment
of plan.
(a) The owner or operator of a
disposal facility must have a written .
post-closure plan. In addition, certain
piles and certain surface impoundments
from which the owner or operator"
intends to remove the wastes at closure
are required by §§ 264.228 and 264.258
to have post-closure plans. The plan
must be submitted with a permit
application, in accordance with
§ 122.25(a)(13) of this chapter, and
approved by the Regional Administrator
as part of the permit issuance
proceeding under Part 124 of this
chapter. In accordance with §122.29 of
this chapter, the approved post-closure
plan will become a condition of any
permit issued. A copy of the approved
plan and all revisions to the plan must
be kept at the facility until the post-
closure care period begins. This plan
must identify the activities that will be
carried on after closure and the
frequency of these activities, and
include at least:
(1) A description of the planned
monitoring activities and frequencies at
which they will be performed to comply
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Federal Register / Vol. 47, No, 143 / Monday, July 26, 1982 / Rules and Regulations 32357
with Subparts F, K, L, M, and N of this
part during the post-closure care period;
(2J* * *
(i) The intergrity of the cap and final
cover or other containment systems in
accordance with the requirements of
Subparts K, L, M, and N of this part; and
(ii) The function of the facility „
monitoring equipment in'accordance
with the requirements of Subparts F, K,
L, M, and N of this part; and
* it * * *
10. In 40 CFR Part 264, Subpart H.
§ 264.144 is amended by revising
paragraph (b); % 264.142 is amended by
revising paragraph (a), except for the
comment; § 264.144 is amended by
revising paragraph (a); and § 264.145 is
amended by revising the undesignated
paragraph preceding paragraph (a) to
read as follows:
§264.140 Applicability.
* . * ft * *
(b) The requirements of § § 284.144
and 264.145 apply only to owners and
operators of. .
(1) Disposal facilities, and
(2) Piles, and surface impoundments
from which the owner or operator
intends to remove the wastes at closure,
to the extent that these sections are
•made applicable -to such facilities in
§§ 264.228 and 264.258.
§ 264.142 Cost estimate Tor closure.
(a) The owner or operator must have a
written estimate, in current doflars,of
the cost of closing the facility in
accordance with the requirements in
§§264,111-264.115 and applicable
closure requirements in f § 264.178,
264.197,264.228, 264,256, 264.280, 264.310,
and 264.351. The estimate must equal the
cost of closure at the point in the
facility's operating life when the extent
and manner of it» operation would make
closure the most expensive, as indicated
by its closure plan (see §264.11,2(a)).
§ 234.144 Cost nBmate for post-closure
care.
{a} The owner or operator of a facility
subject to post-closure monitoring,or •
maintenance requirements must have a
writtea estimate, in current dollars, of
the annual cost of post-closure
monitoring and maintenance of the
facility in accordance with the
applicable post-closure regulations in
§§ 264.117-264,120,264.228, 264.258,
264.280, and 264.310. The post-closure
cost estimate is' calculated by
multiplying the annual post-closure cost
estimate by the number of years of post-
closure care required under Subpart G
of Part 264.
§ 264.145 Financial assurance for post-
closure care.
The owner or operator of a facility
subject to post-closure monitoring or
maintenance requirements must
establish financial assurance for post-
closure care in accordance with the
approved post-closure plan for the
facility. He must choose from the
following options:
*****
11. In 40 CFR Part 264, Subparts K and
L are revised to read as follows:
Subpart K—Surface impoundments
§ 264.220 Applicability.
The regulations in this subpart apply
to owners and operators of facilities that
use surface impoundments to treat,
store, or dispose of hazardous waste
except as § 264.1 provides otherwise.
§ 264.221 Design and operating
requirements.
(a) A surface impoundment (except
for an existing portion of a surface
impoundment) must have a liner that is
designed, constructed, and installed to
prevent-any migration of wastes out of
the impoundment to the adjacent
subsurface soil or ground water or
surface water at any time during the
active life (including the closure period)
of the impoundment. The liner may be
constructed of materials that may allow
wastes to migrate into the liner (but not
into the adjacent subsurface soil or'
ground water or surface water) during
the active life of the facility, provided
that the impoundment is closed in
accordance with | 264.228(a)(l). For
impoundments that wffl be closed in
accordance with § 264.228{a)(23, the
liner must be constructed of materials
that can prevent wastes from migrating
into the liner during the active life of the
facility. The liner must be:
(1) Constructed of materials that have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(including static head and external
hydrogeologic forces), physical contact
with the waste or leachate to which they
are exposed, climatic conditions, the
stress of installation, and the stress of
daily operation;
(2) Placed upon a foundation or base
capable of providing support to the liner
and resistance to pressure gradients
above and below the iiner to prevent
failure of the liner due to settlement,
compression, or uplift; and
(3) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate.
(b) The owner or operator will be
exempted from the requirements of
paragraph (a) of this section if the
Regional Administrator finds, based on
a demonstration by the owner or
operator, that alternate design and
operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituents
(see § 264.93) into the ground water or
surface water at any future time. In
deciding whether to grant an exemption,
the Regional Administrator will
consider:
(1) The nature and quantity of the
wastes;
(2) The proposed alternate design and
operation;
(3) The hydrogeologic setting of the
facility, including the attenuative
capacity and thickness of the liners and
soils present between the impoundment
and ground water or surface water; and
(4) All other factors which would
influence the quality and mobility of the
leachate "produced and the potential for
it to migrate to ground water or surface
water.
(c) A surface impoundment must be
designed, constructed, maintained, and
operated to prevent overtopping
resulting from normal or abnormal
operations; overfilling; wind and wave
action; rainfall; run-on; malfunctions of
level controllers, alarms, and other
equipment; and human error.
(d) A surface impoundment must have
dikes that are designed, constructed,
and maintained with sufficient
structural integrity to prevent massive
failure of the dikes. In ensuring
structural integrity, it must not be
presumed that the liner system will
function without leakage during the
active life of the unit.
(e) The Regional Administrator will
specify, in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
§ 264.222 Double-lined surface
Impoundments: Exemption from Subpart F
ground-water protection requirements.
(a) The owner or operator of a double-
lined surface impoundment is not
subject to regulation under Subpart F of
this part if the following conditions are
met:
{lj The impoundment {including its
underlying liners) must be located
entirely above the seasonal high water
table.
(2) The impoundment must be
underlain by two liners which are
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32358 Federal Register / Vol. 47. No. 143 / Monday, July 26. 1982 / Rules and Regulations
designed and constructed in a manner
that prevents the migration of liquids
into or out of the space between the
liners. Both liners must meet all the
specifications of § 264.221(a).
(3] A leak detection system must be
designed, constructed, maintained, and
operated between the liners to detect
any migration of liquids into the space
between the liners.
(b) If liquid leaks into the leak
detection system, the owner or operator
must:
(1) Notify the Regional Administrator
of the leak in writing within seven days
after detecting the leak; and
(2)(i) Within a period of time specified
in the permit, remove accumulated
liquid, repair or replace the liner which
is leaking to prevent the migration of
liquids through the liner, and obtain a
certification from a qualified engineer
that, to the best of his knowledge and
opinion, the leak has been stopped; or
(ii) If a detection monitoring program
pursuant to § 264.98 has already been
established in the permit (to be
complied with only if a leak occurs),
begin to comply with that program and
any other applicable requirements of
Subpart F of this part within a period of
time specified in the permit.
(c) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
§§ 264.223-264.225 [Reserved]
§ 264.226 Monitoring and inspection.
(a) During construction and
installation, liners (except in the case of
existing portions of surface
impoundments exempt from
§ 264.221(a)} and cover systems (e.g.,
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
imperfections (e.g., holes, cracks, thin
spots, or foreign materials). Immediately
after construction or installation:
(1) Synthetic liners and covers must
be inspected to ensure tight seams and
joints and the absence of tears,
punctures, or blisters; and
(2) Soil-based and admixed liners and
covers must be inspected for
inperfections including lenses, cracks,
channels, root holes, or other structural
non-uniformities that may cause an
increase in the permeability of the liner
or cover.
(b) While a surface impoundment is in
operation, it must be inspected weekly
and after storms to detect evidence of
any of the following:
(1) Deterioration, malfunctions, or
improper operation of overtopping
control systems;
(2) Sudden drops in the level of the
impoundment's contents; and
(3) The presence of liquids in leak
detection systems, where installed to
comply with § 264.222; and
(4) Severe erosion or other signs of
deterioration in dikes or other
containment devices.
(c) Prior to the issuance of a permit,
and after any extended period of time
(at least six months) during which the
impoundment was not in service, the
owner or operator must obtain a
certification from a qualified engineer
that the impoundment's dike, including
that portion of any dike which provides
freeboard, has structural integrity. The
certification must establish, in
particular, that the dike:
(1) Will withstand the stress of the
pressure exerted by the types and
amounts of wastes to be placed in the
impoundment; and
(2) Will not fail due to scouring or
piping, without dependence on any liner
system included in the surface
impoundment construction.
§ 264.227 Emergency repairs; contingency
plans.
(a) A surface impoundment must be
removed from service in accordance
with paragraph (b) of this section when:
(1) The level of liquids in the
impoundment suddenly drops and the
drop is not known to be caused by
changes in the flows into or out of the
impoundment; or
(2) The dike leaks.
(b) When a surface impoundment
must be removed from service as
required by paragraph (a) of this section,
the owner or operator must:
(1) Immediately shut off the flow or
stop the addition of wastes into the
impoundment;
(2) Immediately contain any surface
leakage which has occurred or is
occurring;
(3) Immediately stop the leak;
(4) Take any other necessary steps to
stop or prevent catastrophic failure;
(5) If a leak cannot be stopped by any
other means, empty the impoundment;
and
(6) Notify the Regional Administrator
of the problem in writing within seven
days after detecting the problem.
(c) As part of the contingency plan
required in Subpart D of this part, the
owner or operator must specify a
procedure for complying with the
requirements of paragraph (b) of this
section.
(d) No surface impoundment that has
been removed from service in
accordance with the requirements of
this section may be restored to service
unless the portion of the impoundment
which was failing is repaired and the
following steps are taken:
(1) If the impoundment was removed
from service as the result of actual or
imminent dike failure, the dike's
structural integrity must be recertified in
accordance with § 264.226(c).
(2) If the impoundment was removed
from service as the result of a sudden
drop in the liquid level, then:
(i) For any existing portion of the
impoundment, a liner must be installed
in compliance with §§ 264.221(a) or
264.222; and
(ii) For any other portion of the
impoundment, the repaired liner system
must be certified by a qualified engineer
as meeting the design specifications
approved in the permit.
(e) A surface impoundment that has
been removed from service in
accordance with the requirements of
this section and that is not being
repaired must be closed in accordance
with the provisions of § 264.228.
§ 264.228 Closure and post-closure care.
(a) At closure, the owner or operator
must:
(1) Remove or decontaminate all
waste residues, contaminated
containment system components (liners,
etc.), contaminated subsoils, and
structures and equipment contaminated
with waste and leachate, and manage
them as hazardous waste unless
§ 261.3(d) of this chapter applies; or
(2)(i) Eliminate free liquids by
removing liquid wastes or solidifying the
remaining wastes and waste residues;
(ii) Stabilize remaining wastes to a
bearing capacity sufficient to support
final cover; and
(iii) Cover the surface impoundment
with a final cover designed and
constructed to:
(A) Provide long-term minimization of
the migration of liquids through the
closed impoundment;
(B) Function with minimum
maintenance;
(C) Promote drainage and minimize
erosion or abrasion of the final cover;
(D) Accommodate settling and
subsidence so that the cover's integrity
is maintained; and
(E) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) If some waste residues or
contaminated materials are left in place
at final closure, the owner or operator
must comply with all post-closure
requirements contained in § § 264.117-
264.120, including maintenance and
monitoring throughout the post-closure
care period (specified in the permit
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Federal Register / Vol. 47. No. 143 / Monday. July 26, 1982 / Rules and Regulations 32359
under § 264.117), The owner or operator
must:
(1) Maintain the integrity and
effectiveness of the final cover,
including making repairs to the cap as
necessary to correct the effects of
settling, subsidence, erosion, or other
events;
(2) Maintain and monitor the leak
detection system in accordance with
§ 264.222, where such a system is
present between double liner systems;
(3) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this part; and
(4) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover.
(c) (1) If an owner or operator plans to
close a surface impoundment in
accordance with paragraph (a)(l) of this
section, and the impoundment does not
comply with the liner requirements of
§ 264.221(a) and is not exempt from
them in accordance with § 264.221(b),
then:
(i) The closure plan for the
impoundment under § 264.112 must
include both a plan for complying with
paragraph [a)(l] of this section and a
contingent plan for complying with
paragraph (a)(2) of this section in case
not all contaminated subsoils can be
practicably removed at closure; and
(ii) The owner or operator must
prepare a contingent post-closure plan
under § 264.118 for complying with
paragraph (b) of this section in case not
all contaminated subsoils can be
practicably removed at closure.
(2) The cost estimates calculated
under §§ 264.142 and § 264.144 for
closure and post-closure care of an
impoundment subject to this paragraph
must include the cost of complying with
the contingent closure plan and the
contingent post-closure plan, but are not
required to include the cost of expected
closure under paragraph (a)(l) of this
section.
(d) During the post-closure care
period, if liquids leak into a leak
detection system installed under
§ 264.222, the owner or operator must
notify the Regional Administrator of the
leak in writing within seven days after
detecting the leak. The Regional
Administrator will modify the permit to
require compliance with the
requirements of Subpart F of this part.
§ 264.229 Special requirements for
Ignltable or reactive waste.
Ignitable or reactive waste must not
be placed hi a surface impoundment,
unless:
(a) The waste is treated, rendered, or
mixed before or immediately after
placement in the impoundment so-that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under §§ 261.21 or 261.23 of this
chapter; and
(2) Section 264.17(b) is complied with;
or
(b) The waste is managed in such a
way that it is protected from any
• material or conditions which may cause
it to ignite or react; or
(c) The surface impoundment is used
solely for emergencies.
§ 264.230 Special requirements for
incompatible wastes.
Incompatible wastes, or incompatible '
wastes and materials, (see Appendix V
of this part for examples) must not be
placed in the same surface
impoundment, unless § 264.17(b) is
complied with.
§§264.231-264.249 [Reserved]
Subpart L—Waste Piles
§264.250 Applicability.
(a) The regulations in this subpart
apply to owners and operators of
facilities that store or treat hazardous
waste in piles, except as § 264.1
provides otherwise.
(b) The regulations in this subpart do
not apply to owners or operators of
waste piles that are closed with wastes
left in place. Such waste piles are
subject to regulation under Subpart N of
this part (Landfills).
(c) The owner or operator of any •
waste pile that is inside or under a
structure that provides protection from
precipitation so that neither run-off nor
leachate is generated is not subject to
regulation under § 264.251 or under
Subpart F of this part, provided that:
(1) Liquids or materials containing
free liquids are not placed in the pile;
(2) The pile is protected from surface
water run-on by the structure or in some
other manner;
(3) The pile is designed and operated
to control dispersal of the waste by
wind, where necessary, by means other
than wetting; and
(4) The pile will not generate leachate
through decomposition or other
reactions.
§ 264.251 Design and operating
requirements.
(a) A waste pile (except for an
existing portion of a waste pile) must
have:
(1) A liner that is designed,
constructed, and iristalled to prevent
any migration of wastes out of the pile
into the adjacent subsurface soil or
ground water or surface water at any
time during the active life (including the
closure period) of the waste pile. The
line; may be constructed of materials
that may allow waste to migrate into the
liner itself (but not into the adjacent
subsurface soil or ground water or
surface water) during the active life of
the facility. The liner must be:
(i) Constructed of materials that have-
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(including static head and external
hydrogeologic forces), physical contact
with the waste or leachate to which they
are exposed, climatic conditions, the
stress of installation, and the stress of
daily operation;
(ii) Placed upon a foundation or base
•capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement,
compression, or uplift; and
(iii) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate; and
(2) A leachate collection and removal
system immediately above the liner that
is designed, constructed, maintained,
and operated to collect and remove
leachate from the pile. The Regional
Administrator will specify design and
operating conditions in the permit to
ensure that the leachate depth over the
liner does not exceed 30 cm (one foot).
The leachate collection and removal
system must be:
(i) Constructed of materials that are:
(A) Chemically resistent to the waste
managed in the pile and the leachate
expected to be generated; and
(B) Of sufficient strength and
thickness to prevent collapse under the
pressures exerted by overlaying wastes,
waste cover materials, and by any
equipment used at the pile; and
(ii) Designed and operated to function
without clogging through the scheduled •
closure of the waste pile.
(b) The owner or operator will be
exempted from the requirements of
paragraph (a) of this section if the
Regional Administrator finds, based .on
a demonstration by the owner or
operator, that alternate design and
operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituents
(see § 264.93) into the ground water or
surface water at any future time. In
deciding whether to grant an exemption,
the Regional Administrator will
consider:
(1) The nature and quantity of the
wastes;
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32380 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
(2) The proposed alternate design and
operation;
(3) The hydrogeologic setting of the
facility, including attenuative capacity
and thickness of the liners and soils
present between the pile and ground
water or surface water; and
(4) All other factors which would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate to ground water or surface
water.
(c) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portion
of the pile during peak discharge from at
least a 25-year storm.
(d) The owner or operator must
design, construct, operate, and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm.
(e) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
(f) If the pile contains any partfculate
matter which may be subject to wind
dispersal, the owner or operator must
cover or otherwise manage the pile to ••; •
pontrol wind dispersal.
(g) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
§ 264.252 Double-lined piles: Exemption
from Subpart F ground-water protection
requirements.
(a) The owner or operator of a double-
lined waste pile is not subject to
regulation under Subpart F of this part if
the following conditions are met:
(1) The pile (including its underlying
liners) must be located entirely above
the seasonal high water table.
(2) The pile must be underlain by two
liners which are designed and
constructed in a manner that prevents
the migration of liquids into or out of the
space between the liners. Both liners
must meet all the specifications of
§ 264.251(a)(l).
(3) A leak detection system must be
designed, constructed, maintained, and
operated between the liners to detect
any migration of liquids into the space-
between the liners.
(4) The pile must have a leachate
collection and removal system above
the top liner that is designed,
constructed, maintained, and operated
in accordance with § 264.251(a)(2).
(b) If liquid leaks into the leak
detection system, the owner, or operator
must:
(1) Notify the Regional Administrator
of the leak in writing within seven days
after detecting the leak; and
(2) (i) Within a period of time
specified in the permit, remove
accumulated liquid, repair or replace the
liner which is leaking to prevent the
migration of liquids, through the liner,
and obtain a certificaton-from a
qualified engineer that, to the best of his
knowledge and opinion, the leak has
been stopped; or
(ii) If a detection monitoring program
pursuant to § 264.98 has already been
established in the permit (to be
complied with only if a leak occurs),
begin to comply with that program and
any other applicable requirements of
Subpart F of this part within a period of
time specified in the permit.
(c) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
§ 264.253 Inspection of liners: Exemption
from Subpart F ground-water protection
requirements.
(a) The owner or operator of a pile is
not subject to regulation under Subpart
F of this part if the following conditions
are met:
(1) The pile (including its underlying
liner) must be located entirely above the
seasonal high water table.
(2) The pile must be.underlain by a
liner (base) that meets all the
specifications of § 264.251 (a)(l).
(3) The wastes in the pile must be
removed periodically, and the liner must
be inspected for deterioration, cracks, or
other conditions that may result in
leaks. The frequency of inspection will
be specified in the inspection plan
required in § 264.15 and must be based
on the potential for the liner (base) to
crack or otherwise deteriorate under the
conditions of operation (e.g., waste type,
rainfall, loading rates, and subsurface
stability).
(4) The liner must be of sufficient
strength and thickness to prevent failure
due to puncture^cracking, tearing, or
other physical damage from equipment
used to place waste in or on the pile or
to clean and expose the liner surface for
inspection.
(5) The pile must have a leachate .
collection and removal system above
the liner that is designed, constructed,
maintained, and operated in accordance
with § 264.251 (a)(2).
(b) If deterioration, a crack, or other
condition is identified that is causing or
could cause a leak, the owner or
operator must:
(1) Notify the Regional Administrator
of the condition in writing within seven
days after detecting the condition; and
(2)(i) Repair or replace the liner (base)
and obtain a certification from a-
qualified engineer that, to the best of his
knowledge and opinion, the liner (base)
has been repaired and leakage will not
occur; or
(ii) If a detection monitoring program
pursuant to § 264.98 has already been
established in the permit (to be
complied with only if a leak occurs),
b.egin to comply with that program and
any other applicable requirements of
Subpart F of this part within a period of
time specified in the permit,-
(c) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements 'of this
section are satisfied.
§ 264.254 Monitoring and inspection.
(a) During construction, or installation,
liners (except in the case of existing
portions of piles exempt from
§ 264.251(a)) and cover systems (e.g.,
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
imperfections (e.g., holes, cracks, thin
spots, .or foreign materials). Immediately
after construction or installation:
(1) Synthetic liners and covers must
be inspected 1o ensure tight seams and
joints and the absence of tears,
punctures, or blisters; and
(2) Soil-based and admixed liners and
covers must be inspected for
imperfections including lenses, cracks,
channels, root holes, or other structural
non-uniformities that may cause an-
increase in the permeability of the liner
or cover.
(b) While a waste pile is in operation.
ii must be inspected weekly and after
storms to detect evidence of any of the
following:
(1) Deterioration, malfunctions, or
improper operation of run-orj and run-off
control systems;
(2) The presence of liquids in leak
detection systems, where installed 1o
comply with § 264.252;
(3) Proper functioning of wind
dispersal control systems, where
present; and
(4) The presence of leachate in and
proper functioning of leachate collection
and removal systems, where present.
§ 264.255 [Reserved]
§ 264.256 Special requirements for
ignitable or reactive waste.
Ignitable or reactive waste must not
be placed in a waste pile unless:
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Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations 32361
(a) The waste is treated, rendered, or
mixed before or immediately after
placement in the pile so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under §§ 261.21 or 261.23 of this
chapter; and
(2) Section 264.17(b) is complied with;
or
(b) The waste is managed in such a
way that it is protected from any
material or conditions which may cause
it to ignite or react.
§ 264.257 Special requirements for
Incompatible wastes.
(a) Incompatible wastes, or
incompatible wastes and materials, (see
Appendix V of this part for examples)
must not be placed in the same pile,
unless § 284.17(b) is complied with.
(b) A pile of hazardous waste that is
incompatible with any waste or other
material stored nearby in containers,
other piles, open tanks, or surface
impoundments must be separated from
the otSer materials, or protected from
them by means of a dike, berm, wall, or
other device.
(c) Hazardous waste must not be piled
on the same base where incompatible
wastes or materials were previously
piled, unless the base has been
decontaminated sufficiently to ensure
compliance with § 264.17(b).
§ 264.258 Closure and post-closure care.
(a) At closure, the owner or operator
must remove or decontaminate all waste
residues, contaminated containment
system components (liners, etc.),
contaminated subsoils, and structures
and equipment contaminated with
waste and leachate, and manage them
as hazardous waste unless § 261.3(d) of
this chapter applies.
(b) If, after removing or
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils,
structures, and equipment as required in
.paragraph (a) of this section, the owner
or operator finds that not all
contaminated subsoils can be
practicably removed or decontaminated,
he must close the facility and perform
post-closure care in accordance with the
closure and post-closure care,
requirements that apply to landfills
(§ 264.310).
(c)(l) The owner or operator of a
waste pile that does not comply with the
liner requirements of § 284.251(a)(l) and
is not exempt from them in-accordance
with §f 264.250{c) or 264.251{b). must:
(i) Include in the closure plan for the
pile under § 264.112 both a plan for
complying with paragraph (a) of this.
section and a contingent plan for
complying with paragraph (b) of this
section in case not all contaminated
subsoils can be practicably removed at
closure; and
(ii) Prepare a contingent post-closure
plan under § 264.118 for complying with
paragraph (b) of this section in case not
all contaminated subsoils can be
practicably removed at closure.
(2) The cost estimates calculated
under § § 264.142 and 264.144 for closure
and post-closure care of a pile subject to
this paragraph must include the cost of'
complying with the contingent closure
plan and the contingent post-closure
plan, but are not required to include the •
cost of expected closure under
paragraph (a) of this section.
§§264.259-264.269 [Reserved]
12. 40 CFR Part 264 is amended by
adding Subparts M and N to read as
follows:
Subpart M—Land Treatment
§264.270 Applicability.
The regulations in this subpart apply
to owners and operators of facilities that
.treat or dispose of hazardous waste in
land treatment units, except as § 264.1
provides otherwise.
§ 264.271 Treatment program.
(a) An owner or operator subject to
this subpart must establish a land
treatment program that is designed to
ensure that hazardous constituents
placed in or on the treatment zone are
degraded, transformed, or immobilized
within the treatment zone. The Regional
Administrator will specify in the facility
permit the elements of the treatment
program,' including:
(1) The wastes that are capable of
being treated at the unit based on a
demonstration under § 264.272;
(2) Design measures and operating •
practices necessary to maximize, the
success of degradation, transformation, •
and immobilization processes in the
treatment zone hi accordance with
§ 264.273(a); and
(3) Unsaturated zone monitoring
provisions meeting the requirements of
§ 264.278.
(b) The Regional Administrator will
specify in the facility permit the
hazardous constituents that must be
degraded, transformed, or immobilized
under this subpart. Hazardous
constituents are constituents identified
in Appendix VIE! of Part 261 of this
chapter that are reasonably expected to
be in, or derived from, waste placed fa
or on the treatment zone.
(c) The Regional Administrator will
specify the vertical and horizontal
dimensions of the treatment zone in the
facility permit. The treatment zone is the
portion of the unsaturated zone below
and including the land surface in which
the owner or operator intends to
maintain the conditions necessary for
effective degradation, transformation, or
immobilization of hazardous
constituents. The maximum depth of the
treatment zone must be:
(1) No more than 1.5 meters (5 feet)
from the initial soil surface; and
(2) More than 1 meter (3 feet) above
the seasonal high water table.
§ 264.272 Treatment demonstration.
(a) For each waste that will b$ applied
to the treatment zone, the owner or
operator must demonstrate, prior to
application of the waste, that hazardous
constituents in the waste can be
completely degraded, transformed, or
immobilized in the treatment zone.
(b) In making this demonstration, the.
owner or operator may use field tests, • '
laboratory analyses, available data, or,
in the case of existing units, operating
data. If the owner or operator intends to
conduct field tests or laboratory
analyses in order to make the >
demonstration required under paragraph'
(a) of this section, he must obtain a
treatment or disposal permit under
§ 122.27(c). The Regional Administrator
will specify in this permit the testing,
analytical, design, and operating
requirements (including the duration of
the tests and analyses, and, in the case
of field tests, the horizontal and vertical
dimensions of the treatment zone,
monitoring procedures, closure and
clean-up activities) necessary to meet
the requirements hi paragraph (c) of this
section.
(c) Any field test-or laboratory
analysis conducted in order to make a •
demonstration under paragraph (a) of
• this section must:'
(1) Accurately simulate the
characteristics and operating conditions
for the proposed land treatment unit
including: .
(i) The characteristics of the waste
(including the presence of Appendix VIII
of Part 261 of this chapter constituents);
(ii) The climate in the area;
(iii) The topography of the
surrounding area;
pv) The characteristics of the soil in
the treatment zone (including depth);
and
(v) This operating practices to be used
at the unit.
(2) Be likely to show that hazardous
constituents in the waste to be tested
will be completely degraded,
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32362 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
transformed, or immobilized in the
treatment zone of the proposed land
treatment unit; and
(3) Be conducted in a manner that
protects human health and the
environment considering:
(i) The characteristics of the waste to
be tested;
(ii) The .operating and monitoring
measures taken during the course of the
. test;
(iii) The duration of the test;
. (iv) The volume of waste used in the
test;
(v) In the case of field tests, the
potential for migration of hazardous
constituents to ground water or surface
water.
§ 264.273 Design and operating
requirements.
The Regional Administrator will
specify in the facility permit how the
owner or operator win design, construct,
operate, and maintain the land
treatment unit in compliance with this
section.
(a) The owner or operator must
design, construct, operate, and maintain
the unit to maximize the degradation,
transformation, and immobilization of
hazardous constituents in the treatment
zone. The owner or operator must
design, construct, operate, and maintain
the unit in accord with all design and
operating conditions that were used in
the treatment demonstration under
§ 264.272. At a minimum, the Regional
Administrator will specify the following
in the facility permit:
(1) The rate and method of waste
application to the treatment zone;
(2) Measures to control soil pH;
(3) Measures to enhance microbial or.
chemical reactions [e.g., fertilization,
tilling); and
(4) Measures to control the moisture
content of the treatment zone.
(b) The owner or operator must
design, construct, operate, and maintain
the treatment zone to minimize run-off
of hazardous constituents during the
active life of the land treatment unit.
(c) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the treatment zone
during peak discharge from at least a 25-
year storm.
(d) The owner or operator must
design, construct, operate, and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm.
,(e) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
the design capacity of the system.
(f) If the treatment zone contains
particulate matter which may be subject
to wind dispersal, the owner or operator
must manage the unit to control wind
dispersal.
(g) The owner or Operator must
inspect the unit weekly and after storms
to detect evidence of:
(1) Deterioration, malfunctions, or
improper operation of run-on and run-off
control systems; and
(2) Improper functioning of wind
dispersal control measures.
§§264.274-264.275 [Reserved]
§ 264.276 Food-chain crops.
The Regional Administrator may
allow the growth of food-chain crops in
or on the treatment zone only if the
owner or operator satisfies the
. conditions of this section. The Regional
Administrator will specify in the facility
permit the ^specific food-chain crops
which may be grown.
(a)(l) The owner or operator must
demonstrate that there is no substantial
risk to human health caused by the
growth of such crops in or on the
'treatment zone by demonstrating, prior
to the planting of such crops, that
hazardous constituents other than
cadmium:
(i) Will not be transferred to the food
or feed portions of the crop by plant
uptake or direct contact, and will not
otherwise be ingested by food-chain
animals (e.g., by grazing); or
(ii) Will not occur hi greater
concentrations in or on the food or feed
portions of crops grown on the
treatment zone than hi or on identical
portions of the same crops grown on
untreated soils under similar conditions
in the same region.
(2) The owner or operator must make
the demonstration required under this
paragraph prior to the planting of crops
at the facility for all constituents
identified in Appendix VIII of Part 261 of
this chapter that are reasonably
expected to be in, or derived from,
waste placed in or on the treatment
zone.
(3) In making a demonstration under
this paragraph, the owner or operator
may use field tests, greenhouse studies,
available data, or, hi the case of existing
units, operating data, and must:
(i) Base the demonstration on
conditions similar to those present in the
treatment zone, including soil
characteristics (e.g., pH, cation
exchange capacity), specific wastes,
•application rates, application methods,
and crops to be grown; and
(ii) Describe the procedures used in
conducting any tests, including the
sample selection criteria', sample size,
analytical methods, and statistical
procedures. '.
(4) If the owner or operator intends to
conduct, field tests or greenhouse studies
in order to make the demonstration
required under this paragraph, he must
obtain a permit for conducting such
activities.
(b) The owner or operator must
comply with the following conditions if
cadmium is contained in wastes applied
to the treatment zone:
(l)(i) The pH of the waste and soil
mixture must be 6.5 or greater at the
time of each waste application, except
for waste containing cadmium at
concentrations of 2 mg/kg (dry weight)
or less;
(ii) The annual application of
cadmium from waste must not exceed
0.5 kilograms per hectare (kg/ha) on
land used for production of tobacco, ,
leafy vegetables, or root crops grown for
human consumption. For other food-
chain crops, the annual cadmium
application rate must not exceed:
Time period
Present to June 30, 1 984
July 1, 1984 to Dec. 31. 1986
Beginning Jan. 1, 1987 „ _
Annual
Cd
applica-
tion rate
(kilo-
grams
per
hectare)
1 25
0.5
(iii) The cumulative application of
cadmium from waste must not exceed 5
kg/ha if the waste and soil mixture has
a pH of less than 6.5; and
(iv) If the waste and soil mixture has a
pH of 6.5 or greater or is maintained at a
pH of 6.5 or greater during crop growth,
the cumulative application of cadmium
from waste must not exceed: 5 kg/ha if
soil cation exchange capacity (CEC) is
less than 5 meq/lOOg; 10 kg/ha if soil
CEC is 5-15 meq/lOOg; and 20 kg/ha if
soil CEC is greater than 15 meq/lOOg; or
(2)(i) Animal feed must be the only
food-chain crop produced;
(ii) The pH of the waste and soil
mixture must be 6.5 or greater at the
time of waste application or at the time
the crop is planted, whichever occurs
later, and this pH level must be
maintained whenever food-chain crops
are grown;
(iii) There must be an operating plan
which demonstrates how the animal
feed will be distributed to preclude
ingestion by humans. The operating plan
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
32363
must describe the measures to-be taken
to safeguard against possible health
hazards from cadmium entering the food
chain, which may result from alternative
land uses; and
(iv) Future property owners must be
notified by a stipulation in the land
record or property deed which states
that the property has received waste at
high cadmium application rates and that
food-chain crops must not be grown
except in compliance with paragraph
(b)(2) of this section.
§264.277 [Reserved]
£264.278 Unsaturated zone monitoring.
An owner or operator subject to this
subpart must establish an unsaturated
zone monitoring program to discharge
the following responsibilities:
(a) The owner pr operator must
monitor the soil and soil-pore liquid to
determine whether hazardous
constituents migrate out of the treatment
zone.
(1) The Regional Administrator will
specify the hazardous constituents to be
monitored in the facility permit The
hazardous constituents to be monitored
are those specified under S 264.271(b).
(2) The Regional Administrator may
require monitoring for principal
hazardous constituents (PHCs) in lieu of
the constituents specified under
§ 264.271(b). PHCs are hazardous
constituents contained in the wastes to
be applied at the unit that are the most
difficult to treat, considering the
combined effects of degradation,
transformation, and immobilization. The
Regional Administrator will establish
PHCs ifhe finds, based on waste
analyses, treatment demonstrations, or
other data, that effective degradation,
transformation, or immobilization of the
PHCs will assure treatment at at least
equivalent levels for the other
hazardous constituents in the wastes.
(b) The owner or operator must install
an unsaturated zone monitoring system
that includes soil monitoring using soil
cores and soil-pore liquid monitoring
using devices such as lysimeters. The
unsaturated zone monitoring system
must consist of a sufficient number of
sampling points at appropriate locations
and depths to yield samples that:
(1) Represent the quality of
background soil-pore liquid quality and
the chemical make-up of soil that has
noT been affected by leakage from the
treatment zone; and
(2) Indicate the quality of soil-pore
liquid and the chemical make-up of the
soil below the treatment zone.
(c) The owner or operator must
establish a background value for each
hazardous constituent to-be monitored
under paragraph (a) of this section. The
permit will specify the background
values for each constituent or specify
the procedures to be used to calculate
the background values.
(1) Background soil values may be
based on a one-time sampling at a
background plot having characteristics
similar'to those of the treatment zone.
(2) Background soil-pore liquid values
must be based on at least quarterly
sampling for one year at a background
plot having characteristics similar to
those of the treatment zone.
(3) The owner or operator must
express all background values in a form
necessary for the determination of
statistically significant increases under
paragraph (fj of this section.
(4) In taking samples used in the
determination of all background values,
the owner or operator must use an
unsaturated zone monitoring system
that complies with paragraph (b)(l) of
this section.
(d) The owner or operator must
conduct soil monitoring and soil-pore
liquid monitoring immediately below the
treatment zone. The Regional
Administrator will specify the frequency
and timing of soil and soil-pore liquid
monitoring in the facility permit after
considering the frequency, timing,'and .
rate of waste application, and the soil
permeability. The owner or operator
must express the results of soil and soil-
pore liquid monitoring in a form
necessary for the determination of
statistically significant increases under
paragraph (f) of this section.
(e) The owner or operator must use
consistent sampling and analysis
procedures that are designed to ensure
sampling results that provide a reliable
indication of soil-pore liquid quality and
the chemical make-up of the soil below
the treatment zone. At a minimum, the
owner or operator must implement
procedures and techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures; and
(4) Chain of custody control.
(f) The owner or operator must
determine whether there is a
statistically significant change over
background values for any hazardous
constituent to be monitored under
paragraph (a) of this section below the
treatment zone each time he conducts
soil monitoring and soil-pore liquid
monitoring under paragraph (d) of this
section.
(1) In determining whether a
statistically significant increase has
occurred, the owner or operator must
compare the value of each constituent,
as determined under paragraph (d) of
this section, to the background value for
that constituent according to the
statistical procedure specified in the
facility permit under this paragraph.
(2) The owner or operator must
determine whether there has been a
statistically significant increase below
the treatment zone within a reasonable
time period after completion of
sampling. The Regional Administrator
will specify that time period in the
facility permit after considering the
complexity of the statistical test and the
availability of laboratory facilities to
perform the analysis of soil and soil-
pore liquid samples.
(3) The owner or operator must
determine whether there is a
statistically significant increase below
the treatment zone using a statistical
procedure that provides reasonable
confidence that migration from the
treatment zone will be identified. The
Regional Administrator will specify a
statistical procedure in the facility
permit that he finds:
(i) Is appropriate for the distribution
of the data used to establish background
values; and
(ii) Provides a reasonable balance
between the probability of falsely
identifying migration from the treatment
zone and the probability of failing to
identify real migration from the
treatment zone.
(g) If the owner or operator
determines, pursuant to paragraph (f) of
this section, that there is a statistically
significant increase of hazardous
constituents below the treatment zone,
he must:
(1) Notify the Regional Administrator
of this finding in writing within seven
days. The notification must indicate
what constituents have shown
'statistically significant increases.
(2) Within 90 days, submit to the
Regional Administrator an application
for a permit modification to modify the
operating practices at the facility in
order to maximize the success of
degradation, transformation, or.
immobilization processes in the
treatment zone.
(h) If the owner or operator
determines, pursuant to paragraph'(f) of
this section, that there is a statistically
significant increase of hazardous
constituents below the treatment zone,
he may demonstrate that a source other
than regulated units caused the increase
' or that the increase resulted from an
error in sampling, analysis, or
evaluation. While the owner or operator
may make a demonstration under this
paragraph in addition to, or in lieu'of,
submitting a permit modification
application under paragraph (g)(2) of
this section, he is not relieved of the
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32364 Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations
requirement to submit a permit
modification application within the time
specified in paragraph (g)(2) of this
section unless the demonstration made
under this paragraph successfully shows
that a source other than regulated units
caused the increase or that the increase
resulted from an error in sampling,
analysis, or evaluation. In making a
demonstration under this paragraph, the
owner or operator must:
(Ij Notify the Regional Administrator
in writing within seven days of
determining a statistically significant
increase below the treatment zone that
he intends to make a determination
under this paragraph;
(2) Within 90 days, submit a report to
the Regional Administrator
demonstrating that a source other than
the regulated units caused the increase
or that the increase resulted from error
in sampling, analysis, or evaluation;
(3) Within 90 days, submit to the
Regional Administrator an application
for a permit modification to make any
appropriate changes to the unsaturated
zone monitoring program at the facility;
and
(4j Continue to monitor in accordance
with the unsaturated zone monitoring
program established under this section.
§ 264.279 Recordkeeping.
The owner or operator must include
•hazardous waste application dates and
rates in the operating record required
under § 264.73.
§ 264.280 Closure and post-closure care.
(a) During the closure period the
owner or operator must:
(1) Continue all operations (including
. pH control) necessary to maximize
degradation, transformation, or
immobilization of hazardous
constituents within the treatment zone
as required under § 264.273(a), except to
the extent such measures are
inconsistent with paragraph (a)(8) of this
section.
(2) Continue all operations in the
treatment zone to minimize run-off of
hazardous constituents as required
under § 264.273(b);
(3) Maintain the run-on control system
required under § 264.273(c);
(4} Maintain the run-off management
system required under § 264.273(d);
(5) Control wind dispersal of
hazardous waste if required under
§ 264.273(f);
(6) Continue to comply with any
prohibitions or conditions concerning
growth of food-chain crops under
§264.276;
(7) Continue unsaturated zone
monitoring hi compliance with § 264.278,
except that soil-pore liquid monitoring
may be terminated 90 days after the last
application of waste to the treatment
zone; and
(8) Establish a vegetative cover on the
portion of the facility being closed -at
such time that the cover will not
substantially impede degradation,
transformation, or immobilization of .
hazardous constituents hi the treatment
zone. The vegetative cover must be
capable of maintaining growth without
extensive maintenance.
(bj For the purpose of complying with
§ 264.115, when closure is completed the
owner or operator may submit to the
Regional Administrator certification by
an independent qualified soil scientist,
in lieu of an independent registered
professional engineet, that the facility
has been closed in accordance with the
specifications in the approved closure
plan.
(c) During the post-closure care period
the owner or operator must:
(1) Continue all operations (including
pH control) necessary to enhance •
degradation and transformation and
sustain immobilization of hazardous
constituents in the treatment zone to the
extent that such measures are cpnsistent
with other post-closure care activities;
(2) Maintain a vegetative cover over'"
closed portions of the facility;
(3) Maintain the run-on control system
required under § 264.273(c);
(4) Maintain the run-off management
system required under § 264.273(d);
(5) Control wind dispersal of
hazardous waste if required under
§ 264.273(f);
(6) Continue to'comply with any
prohibitions or conditions concerning
growth of food-chain crops under
§264.276; and
(7) Continue unsaturated zone
monitoring hi compliance with § 264.278,
expect that, soil-pore liquid monitoring
may be terminated 90 days after the last
application of waste to the treatment
zone.
(d) The owner or operator is not
subject to regulation under paragraphs
(a) (8) and (c) of this section if the
Regional Administrator finds that the .
level of hazardous constituents in the
treatment zone soil does not exceed the
background value of those constituents
by an amount that is statistically
significant when using the test specified
in paragraph (d)(3) of this section. The
owner or operator may submit such a
demonstration to the Regional
Administrator at "any time during the
closure of post-closure care periods. For
the purposes of this paragraph:
(1) The owner or operator must
establish background soil values and
determine whether there is a
statistically significant increase over
those values for all hazardous
constituents specified in the facility
permit under § 264.271 (b).
(i) Background soil values may be
based on a one-time sampling of a '
background plot having characteristics
similar to those of the treatment zone.
(ii) The owner or operator must
express background values and values
for hazardous constituents in the
treatment zone hi a form necessary for
the determination of statistically
significant increases under paragraph
(d)(3) of this section.
(2) In taking samples used in the.
determination of background and
treatment zone values, the owner or
operator must take samples at a
sufficient number of sampling points arid
at appropriate locations and depths to
yield samples that represent the
chemical make-up of soil that has not
been affected by leakage from the
treatment zone and the soil within the
treatment zone, respectively.
(3) In determining whether a
statistically significant increase has '__
occurred, the owner or operator must
compare the value of each constituent in
the treatment zone to the background
value for that constituent using a
statistical procedure that provides
reasonable confidence that constituent
presence in the treatment zone will be
identified. The owner or operator must
. use a statistical procedure that:
(i) Is appropriate for the distribution
of'the data used to establish background
values; and
(ii) Provides a reasonable balance
between the probability of falsely
identifying hazardous constituent
presence hi the treatment zone and the
probability of failing to identify .real •
presence in the treatment zone.
(e) The owner or operator is not
subject to regulation under Subpart F of
this chapter if the Regional.
Administrator finds that the owner or
operator satisfies paragraph (d) of this
section an'd if unsaturated zone
monitoring under § 264.278 indicates
that hazardous constituents have not
migrated beyond the treatment zone
during the active life of the land •
treatment unit.
§ 264.281 Special requirements for
ignitable or reactive waste.
The owner or operator must not apply
ignitable or reactive waste to the
treatment zone unless:
(a) The waste is immediately
incorporatedlnto the soil so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
32365
.waste under §§ 261.21 or 261.23 of this
chapter; and
(2) Section 264.17(b) is complied with;
or
(b) The waste is managed in such a
way that it is protected from any
material or conditions which may cause
it to ignite or react.
§ 264.282 Special requirements for
Incompatible wastes.
The owner or operator must not place
incompatible wastes, or incompatible
wastes and materials (see Appendix V
of this part for examples), in or on the
same treatment zone, unless § 264.17(b)
is complied with.
§§264.283-264.299 [Reserved]
Subpart N—Landfills
§264.300 Applicability.
Tho regulations in this subpart apply
to owners and operators of facilities that
dispose of hazardous waste in landfills,'
except as § 264.1 provides otherwise.
§ 264.301 Design and operating
requirements.
(a) A landfill (except for an existing
• portion of a landfill) must have:
(1) A liner that is designed,
constructed, and installed to prevent
any migration of wastes out of the
landfill to the adjacent subsurface soil
or ground water or surface water at
anytime during the active life (including
the closure period) of the landfill. The
liner must be constructed of materials
that prevent wastes from passing into
the liner during the active life of the
facility. The liner must be:
(i) Constructed of materials thai have
appropriate chemical properties and
sufficient strength and thickness to
prevent failure due to pressure gradients
(including static head and external
hydrogeologic forces), physical contact
with the waste or leachate to which they
are exposed, climatic conditions, the
stress of installation, and the stress of
daily operation;
(ii) Placed upon a foundation or base
capable of providing support to the liner
and resistance to pressure gradients
above and below the liner to prevent
failure of the liner due to settlement,
compression, or uplift; and
(iii) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate; and
(2) A leachate collection and removal
system immediately above the liner that
is designed, constructed, maintained,
and operated to collect and remove
leachate from the landfill. The Regional
Administrator will specify design and
operating conditions in the permit to
nnsure that the leachate depth over the
liner does not exceed 30 cm (one foot).
The leachate collection and removal
system must be:
(i) Constructed of materials that are:
(A) Chemically resistant to the waste
managed in the landfill and the leachate
expected to be generated; and
(B) Of sufficient strength and
thickness to prevent collapse under the
pressures exerted by overlying wastes,
waste cover materials, and by any
equipment used at the landfill; and
(ii) Designed and operated to function
without clogging through the scheduled
closure of the landfill.
(b) The owner or operator will be
exempted from the requirements of
paragraph (a) of this section if the
Regional Administrator finds, based on
a demonstration by the owner or
operator, that alternative design and
operating practices, together with
location characteristics, will prevent the
migration of any hazardous constituents
(see § 264.93) into the ground water or
surface water at any future time. In
deciding whether to grant an exemption,
the Regional Administrator will
consider:
(1) The nature and quantity of the
wastes;
(2) The proposed alternate design and
operation;
(3) The hydrogeologic setting of the
facility, including the attenuative
capacity and thickness of the liners and
soils present between the landfill and
ground water or surface water; and
(4) All other factors which would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate to ground water or surface
water.
(c) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow.onto the active portion
of the landfill during peak discharge
from at least a 25-year storm.
(d) The owner or operator must
design, construct, operate, and maintain
a run-off management system to collect
and control at lea's! the water volume
resulting from a 24-hour, 25-year storm.
(e) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
(fj If the landfill contains any
parliculate matter which may be subject
to wind dispersal, the owner or operator
must cover or otherwise manage the
landfill to control wind dispersal.
(g) The ^Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
§264.302 Double-lined landfills:
Exemption from Subpart F ground-water
protection requirements.
(a) The owner or operator of a double-
lined landfill is not subject to regulation
under Subpart F of this part if the
following conditions are met:
(1) The landfill (including its
underlying liners) must be located
entirely above the seasonal high water
table.
(2) The landfill must be underlain by
two liners which are designed and
constructed in a manner to prevent the
migration of liquids into or out of the
space between the liners. Both liners
must meet all the specifications of
§ 264.301(a)(l).
(3) A leak detection system must be
designed, constructed, maintained, and
operated between the liners to detect
any migration of liquid into the space
between the liners.
(4) The landfill must have a leachate
collection and removal system above
the top liner that is designed,
constructed, maintained, and operated
in accordance with § 264.301(a)(2).
(b) If liquid leaks into the leak
detection system, the owner or operator
must:
(1) Notify the Regional Administrator
of the leak in writing within seven days
after detecting the leak; and
(2)(i) Within a period of time specified
in the permit, remove accumulated
liquid, repair or replace the liner which
is leaking to prevent the migration of
liquids through the liner, and obtain a
certification from a qualified engineer
that, to the best of his knowledge and
opinion, the leak has been stopped; or
(ii) If a detection monitoring program
pursuant to § 264.98 has already been
established in the permit (to be
complied with only if a leak occurs),
begin to comply with that program and
any other applicable requirements of
Subpart F of this part within a period of
time specified in the permit.
(c) The Regional Administrator will
specify in the permit all design and
operating practices that are necessary to
ensure that the requirements of this
section are satisfied.
§ 264.303 Monitoring and inspection.
(a) During construction or installation,
liners (except in the case of existing
portions of landfills exempt from
§ 264.301 (a)) and cover systems (e.g.,
membranes, sheets, or coatings) must be
inspected for uniformity, damage, and
imperfections (e.g., holes, cracks, thin
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32366 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
spots, or foreign materials). Immediately
after construction or installation:
(1) Synthetic liners and covers must
be inspected to ensure tight seams and
joints and the absence of tears,
punctures, or blisters; and
(2) Soil-based and admixed liners and
covers must be inspected for
imperfections including lenses, cracks,
channels, root holes, or other structural
non-uniformities that may cause an
increase in the permeability of the liner
or cover.
(b) While a landfill is in operation, it
must be inspected weekly and after
storms to detect evidence of any of the
following:
(1) Deterioration, malfunctions, or
improper operation of run-on and run-off
control systems;
(2) The presence of liquids in leak
detection systems, where installed to
comply with § 264.302;
(3) Proper functioning of wind
dispersal control systems, where
present; and
(4) The presence of leachate in and
proper functioning of leachate collection
and removal systems, where present.
§§264.304-264.306 [Reserved]
§ 264.309 Surveying and recordkeeping.
The owner or operator of a landfill
must maintain the following items in the
operating record required under
§ 264.73:
(a) On a map, the exact location and
dimensions, including depth, of each cell
with respect to permanently surveyed
benchmarks; and
fb) The contents of each cell and the
approximate locatioa of each hazardous
waste type within each cell.
§ 264.310 Closure and post-closure care.
(a) At final closure of the landfill or
upon closure of any cell, the owner or
operator must cover the landfill or cell
with a final cover designed and
constructed to:
(1) Provide long-term minimization of
migration of liquids through the closed
landfill;
(2) Function with minimum
maintenance;
(3) Promote drainage and minimize
erosion or abrasion of the cover;
(4) Accommodate settling and
subsidence so that the cover's integrity
is maintained; and
(5) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) Aftor final closure, the owner pr
operator must comply with all post-
closure requirements contained in
§§ 264.117-264.120, including
maintenance and monitoring throughout
the post-closure care period (specified in
the permit under § 264.117). The owner
or operator must:
(1) Maintain the integrity and
effectiveness of the final cover,
including making repairs to the cap as
necessary to correct the effects of
settling, subsidence, erosion, or other
events;
(2) Maintain and monitor the leak
detection system in accordance with
§ 264.302, where such a system is
present between double liner systems;
(3) Continue to operate the leachate
collection and removal system until
leachate is no longer detected;
(4) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this Part;
(5) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover; and
(6) Protect and maintain surveyed
benchmarks used in complying with
§ 264.309.
(c) During the post-closure care
period, if liquid leaks into a leak
detection system installed under
§ 264.302, the owner or operator must
notify the Regional Administrator of the
leak in writing within seven days after
detecting the leak. The Regional
Administrator will modify the permit to
require compliance with the
requirements of Subpart F of this Part.
§264.311 [Reserved]
§ 264.312 Special requirements for
ignitable or reactive waste.
(a) Except as provided in paragraph
(b) of this section, and in § 264.316,
ignitable or reactive waste must not be
placed in a landfill, unless the waste in
treated, rendered, or mixed before or
immediately after placement in a landfill
so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under §§ 261.21 or 261.23 of this
Chapter; and
(2) Section 264.17(b) is complied with.
(b] Ignitable wastes in containers may
be landfilled without meeting the
requirements of paragraph (a) of this
section, provided that the wastes are
disposed of in such a way that they are
protected from any material or
conditions which may cause them to
ignite. At a minimum, ignitable wastes
must be disposed of in non-leaking
containers which are carefully handled
and placed so as to avoid heat, sparks,
rupture, or any other condition that
might cause ignition of the wastes; must
be covered daily with soil or other non-
combustible material to^ihiimize the
potential for ignition of the wastes; and
must not be disposed of in cells that
contain or will contain other wastes
which may generate heat sufficient to
cause ignition of the waste.
§ 264.313 Special requirements for
incompatible wastes.
Incompatible wastes, or incompatible
wastes and materials, (see Appendix V
of this part for examples) must not be
placed in the same landfill cell, unless
§ 264.17(b) is complied with.
§ 264.314 Special requirements for liquid
•waste.
(a) Bulk or non-containerized liquid
waste or waste containing free liquids
must not be placed in a landfill unless:
(1) The landfill has a liner and
leachate collection and removal system
that meet the requirements of
§ 264.301(a); or
(2) Before disposal, the liquid waste or
waste containing free liquids is treated
or stabilized, chemically or physically
(e.g., by mixing with an absorbent solid),
so that free liquids are no longer
present.
(b) Containers holding free liquids
must not be placed in a landfill unless:
(1) All free-standing liquid: (i) has
been removed by decanting, or other
methods; (ii) has been mixed with
absorbent or solidified so that free-
standing liquid is no longer observed; or
(iii) has been otherwise eliminated; or
(2) The container is very small, such
as an ampule; or
(3) The container is designed to hold
free liquids for use other than storage,
such as a battery or capacitor; or
(4) The container is a lab pack as
defined in § 264.316 and is disposed of
in accordance with § 264.316.
§ 264.315 Special requirements for
containers.
Unless they are very small, such as an
ampule, containers must be either:
(a) At least 90 percent full when
placed in the landfill; or
(b) Crushed, shredded; or similarly
reduced in volume to the maximum
practical extent before burial in the
landfill,
§264.316 Disposal of small containers of
hazardous waste in overpacked drums (lab
packs).
Small containers of hazardous waste
in overpacked drums (lab packs) may be
placed in a landfill if the following
requirements are met:
(a) Hazardous waste must be
packaged in non-leaking inside
containers. The inside containers must
be of a design and constructed of a
material that will not react dangerously
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32367
with, be decomposed by, or be ignited
by the contained waste. Inside
containers must be tightly and securely
sealed. The inside containers must be of
the size and type specified in the
Department of Transportation (DOT)
hazardous materials regulations (49 CFR
Parts 173,178, and 179), if those
regulations specify a particular inside
container for the waste.
(b) The inside containers must be
overpacked in an open head DOT-
specification metal shipping container
(49 CFR Parts 178 and 179] of no more
than 416-liter (110 gallon) capacity and
surrounded by, at a minimum, a
sufficient quantity of absorbent material
to completely absorb all of the liquid
contents of the inside containers. The
metal outer container must be full after
packing with inside containers and
absorbent material.
(c) The absorbent material used must
not be capable of reacting dangerously
with, being decomposed by, or being
ignited by the contents of the inside
containers in accordance with
§ 264.17(b).
(d) Incompatible wastes, as defined in
§ 260.10 of this chapter, must not be
placed in the same outside container.
(e) Reactive wastes, other than
cyanide- or sulfide-bearing waste as,
defined in § 261.23(a)(5) of this chapter,
must be treated or rendered non-
reactive prior to packaging in
accordance with paragraphs (a) through
(d) of this section. Cyanide- and sulfide-
benrlng reactive waste may be packed
in accordance with paragraphs (a)
through (d) of this section without first
being treated or rendered non-reactive.
§§ 264.317-264.339 [Reserved]
13. 40 CFR Part 264 is amended by
adding Appendix IV to read as follows:
Appendix IV
Cochnin's Approximation to the Bohrens-
Fislior Students' I-test
Using all the available background data (nb
readings), calculate the background mean
(Xu) und background variance (ss2). For the
single monitoring well under investigation
(nM reading), calculate the monitoring mean
(Xm) and monitoring variance (sm*).
For any set of data (Xi, X». . . Xn) the
moiin Is calculated by:
. . . +X,,
and tlio variance is calculated by:
S-X)3. . . 4(Xn-X)2
observations in the set of data.
The t-test uses these data summary
measures to calculate a t-statistic (t*) and a
comparison t-statistic (tj. The t* value is '
compared to the tc value and a conclusion
reached as to whether there has been a
statistically significant change in any
indicator parameter.
The t-statistic for all parameters except pH
and similar monitoring parameters is:
t* =
B^+SB*
V nm nB
If the value of this t-statistic is negative then
there is no significant difference between the
^monitoring data and background data. It
should be noted that significantly small
negative values may be. indicative of a failure
of the assumption made for test validity or
errors have been made in collecting the
background data.
The t-statistic (tc), against which t* will be
compared, necessitates finding tB and tm from
standard (one-tailed) tables where,
tii=t-tables with (nB— 1) degrees of freedom,
at the 0.05 level of significance.
tm=t-tables with (nm— 1) degrees of freedom,
at the 0.05 level of significance.
Finally, the special weightings WB and W,»
are defined as:
WB=
—
nB
Wm=
and so the comparison t-statis'tic is:
WBtB+Wmtm
n-1
where "n" denotes the number of
The t-statistic (t*) is now compared with
the comparison t-statistic (tj using the
following decision-rule:
If t* is equal to or larger than tc, then
conclude that there most likely has been a
significant increase in this specific
parameter.
If t* is less than tc, then conclude that most
likely there has not been a change in this
specific parameter.
The t-statistic for testing pH and similar
monitoring parameters is constructed in the
same manner as previously described except
the negative sign (if any) is discarded and the
caveat concerning the negative value is
ignored. The standard (two-tailed) tables are
• used in the construction tc for pH and similar
monitoring parameters.
If t* is equal to or larger than tc. then
conclude that there most likely has been a
significant increase (if the initial t* had been
negative, this would imply a significant
decrease). If t* is less than tc, then conclude
that there most likely has been no change.
A further discussion of the test may be
found in Statistical Methods (6th Edition,
Section 4.14) by G. W. Snedecor and W. G.
Cochran, or Principles and Procedures of
Statistics (1st Edition, Section 5.8) by R. G. D.
Steel and J. H. Tome.
STANDARD T-TABLES 0.05 LEVEL OF
SIGNIFICANCE
Degrees of freedom
1 ,
2
3
4
5
6
7
8
9
10 ...
11
12
13
14
15
16
17
18
19
20
21. .
22
23
24 ' .
25
30. .
40 '..
t-values
(one-tail)
6314
2.920"
2353
2.132
2015
1.943
1 895
1.860
1.833
1 812
1.796
1.782
1.771
1.761
1.753
1 746
1.740
1 734
1 729
1 725
1 721
1.717
1.714
1 711
1.708
1.697
1.684
t-values
(two-tail)
12 706
4303
3 182
2776
2571
2447
2365
2306
2.262
2228
2201
2.179
2160
2 145
2131
2 120
2 110
2 101
2093
2086
2080
2074
2.069
2064
2060
2042
2021
Adopted from Table III of "Statistical Tables for Biological,
Agricultural, and Medical Research" (1947. R. A. Fisher and
F. Yates).
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
-14. The authority citation for Part 265
reads as follows:
Authority: Sections 1006, 2002(a), and 3004
of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery
Act of 1976, as amended (42 U.S.C. 6905,
69t2(a), and 6924).
15. In 40 CFR 265, Subpart L, § 265.253
is amended by revising paragraph (a)
and removing paragraph (c), and
§ 265.258 is added to read as follows:
§265.253 Containment.
If leachate or run-off from a pile is a
hazardous waste, then either:
(a)(l) The pile must be placed on an
impermeable base that is compatible
with the waste under the conditions of
treatment or storage;
(2) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portion
of the pile during peak discharge from at
least a 25-year storm;
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32368 Federal Register /Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
(3) The owner or operator must
design, construct, operate, and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm;
and
(4) Collection and holding facilities
(e.g., tanks or.basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously to maintain design
capacity of the system; or
§ 265.258 Closure and post-closure care.
(a) At closure, the owner or operator
must remove or decontaminate all waste
residues, contaminated containment
system components (liners, etc.),
contaminated subsoils, and structures
and equipment contaminated with
waste and leachate, and manage them
as hazardous waste unless § 261.3(d) of
this chapter applies; or
(b) If, after removing or
decontaminating all residues and
making all reasonable efforts to effect
removal or decontamination of
contaminated components, subsoils,
structures, and equipment as required in
paragraph (a) of this section, the owner
or operator finds that not all
contaminated subsoils can be
practicably removed or decontaminated,
he must close the facility and perform
post-closure care, in accordance with the
closure and post-closure requirements
that apply to landfills (§ 265.310).
16. In 40 CFR Part 265, Subpart M is
amended by revising § 265.272 (b), (c),
and (d), and adding paragraph (e), and
by revising §§ 265.276(c)(2)(iv), 265.279,
and 265.281 and in § 265.280 by revising
paragraphs (c) and (d) and adding new
paragraphs (e) and (f) to read as follows:
§ 265.272 General operating requirements.
*****
(b) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portions
of the facility during peak discharge
from at least a 25-year storm.
(c) The owner or operator must
design, construct, operate, and maintain
a run-off management system capable of
collecting and controlling a water •
volume at least equivalent to a 24-hour,
25iyear storm. . •
(d) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
(e) If the treatment zone contains
particulate matter which may be subject
to wind dispersal, the owner or operator
must manage the unit to control wind
dispersal. .
§ 265.276 Food chain crops.
*****
(c) * * *
(2)*** .
(iv) Future property owners are
notified by a stipulation in the land
record or property deed which states
that the property has received waste at
high cadmium application rates and that
food chain crops must not be grown
except in compliance with paragraph
(c)(2) of this section.
§ 265.279 Recordkeeping. .
The owner or operator must include
hazardous waste application dates and
rates in the operating record required
under § 265.73.
§ 265.280 Closure and post-closure care.
*****
(c) The owner or operator must
consider at least the following methods
in addressing the closure and post-
closure care objectives of paragraph (a)
of this section:
(1) Removal of contaminated soils;
(2) Placement of a final cover,
considering:
(i) Functions of the cover (e.g.,
infiltration control, erosion and run-off
control, and wind erosion control); and
(ii) 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
(3) Monitoring of ground water.
(d) In addition to the requirements of
Subpart G of this part, during the closure
period the owner or operator of a land
treatment facility must:
(1) Continue unsaturated zone
monitoring in a manner and frequency
specified in the closure plan, except that
soil pore liquid monitoring may be
terminated 90 days after the last
application of waste to the treatment
zone;
- (2) Maintain the run-on control system
required under § 265.272(b);
(3) Maintain the run-off management
system required under § 265.272(c); and
(4) Control wind dispersal of
particulate matter which may be subject
to wind dispersal.
(e) For the purpose of complying with
§ 265.115, when closure is completed the
owner or operator may submit to the
Regional Administrator certification
both by the owner or operator and by an
independent qualified soil scientist, in
lieu of an independent registered
professional engineer, that the facility
has been closed in accordance with the
specifications in the approved closure
plan.
(f) In addition to the requirements of
§ 265.117, during the post-closure care
period the owner or operator of a land
treatment unit must:
(1) Continue soil-core monitoring by
collecting and analyzing samples in a
manner and frequency specified in the
post-closure plan;
(2) Restrict access to the unit as
appropriate for its post-closure use;
(3) Assure that growth of food chain
crops complies with § 265.276; and
(4) Control wind dispersal of
hazardous waste.
§ 265.281 Special requirements for
ignitable or reactive waste.
Ignitable or reactive waste must not
be land treated unless:
(a) The waste is immediately
incorporated into the soil so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under § § 265.21 or 261.23 of this
chapter; and
(2) Section 264.17(b) is complied with;
or
(b) The waste is managed in such a
way that it is protected from any
material or conditions which may cause
it to ignite or react.
17. In 40 CFR 265, Subpart N is
amended by revising §§ 265.302 (a), (b)
and (c), 265.312, and 265.314(a)(l), to
read as follows: . •
§ 265.302 General operating requirements.
(a) The owner or operator must
design, construct, operate, and maintain
a run-on control system capable of
preventing flow onto the active portion
of the landfill during peak discharge
from at least a 25-year storm.
(b) The owner or operator must
design, construct, operate and maintain
a run-off management system to collect
and control at least the water volume
resulting from a 24-hour, 25-year storm.
(c) Collection and holding facilities
(e.g., tanks or basins) associated with
run-on and run-off control systems must
be emptied or otherwise managed
expeditiously after storms to maintain
design capacity of the system.
§ 265.312 Special requirements for
Ignitable or reactive waste.
(a) Except as provided in paragraph
(b) of this section, and in § 265.316,
ignitable or reactive waste must not be
placed in a landfill, unless the waste is
treated, rendered, or mixed before or
immediately after placement in a landfill
so that:
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Federal Register / Vol. 47, No. 143 /Monday, July 26, 1982 / Rules and Regulations 32369
(1) The resulting waste, mixture, or
dissolution or material no longer meets
the definition of ignitable or reactive
waste under §§ 261.21 or 281.23 of this •
chapter; and
(2) Section 265.17(b) is complied with.
(b) Ignitable wastes in containers may
be landfilled without meeting the
requirements of paragraph (a) of this
section provided that the wastes are
disposed in such a way that they are
protected from any material or
conditions which may cause them to
ignite. At a minimum, ignitable wastes
must be disposed in non-leaking
containers which are carefully handled .
and placed so as to avoid heat, sparks,
rupture, or any other condition that
might cause ignition of the wastes; must
be covered daily with soil or other non-
combustible material to minimize the
potential for ignition of the wastes; and
must not be disposed in cells that
contain or will contain other wastes
which may generate heat sufficient to
cause ignition of the waste.
§ 265.314 Special r«qulrements,Jor liquid
wasta.
(a) Bulk or non-containerized liquid
waste or waste containing free liquids
must not be placed in a landfill unless:
(1) The landfill has a liner'and
leachate collection and removal system
that meets the requirements of
§ 264.301(a) of this chapter; or
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
18. The authority citation for 40 CFR
Part 122 is revised to redd as follows:
Authority: Resource Conservation and
Recovery Act,'as amended, (RCRA), 42 U.S.C.
§ 0901 <>i seq.; the Safe Drinking Water Act,
42 U.S.C. § 300f et sag., the Clean Water Act,
33 U.S.C. § 1261 etscq., and the Clean Air
Act, 42" U.S.C. 11857 at seq.
19. In 40 CFR Part 122, § 122.10(b) is
amended to read as follows:
§ 122.10 Schedules of compliance
* * * * . *
{b) Alternate schedules of
compliance. A RCRA, UIC, or NPDES
permit applicant or permittee may cease
cpnducting regulated activities (by
receiving a terminal volume of
hazardous waste and (1) for treatment
and storage HWM facilities, closing
pursuant to applicable requirements,
and (2) for disposal HWM facilities,
closing anc| conducting post-closure care
pursuant to applicable requirements; by
plugging and abandonment for UIC
wells; or by termination of direct
discharge for NPDES sources) rather
than continue to operate and meet
- permit requirements as follows:
# * * * *
20. In 40 CFR Part 122, § 122.15(a){7) is
amended by adding new paragraphs
(iv), (v), (vi}, (vii), and (viii) to read as
follows:
§ 122.15 Modification or revocation and
relssuance of permits.
(a) * * *
(7) For RCRA only, the Director may
modify a permit:
* * * * _*
(iv) When the corrective action
program specified in the permit under
§ 264.100 has not brought the regulated
unit into compliance with the ground-
water protection standard within a
reasonable period of time. '
(v) To include a detection monitoring
program meeting the requirements of
§ 264.98, when the owner or operator
has been conducting a compliance
monitoring program under § 264.99 or a
corrective action program under
§ 264.100 and the compliance period
ends before the end of the post-closure
care period for the unit.
(vi) When a permit requires a
compliance monitoring program under
§ 264.99, but monitoring data collected.
prior to permit issuance indicate that the
facility is exceeding the ground-water
protection standard.
{vii) To include conditions applicable
to'units at a facility that were not
previously included hi the facility's
permit. ,
. (viii) When a land treatment unit is
not achieving complete treatment of
hazardous constituents under its current
permit conditions.
*****
21. In 40 CFR Part 122, § 122.17 is
amended by adding new paragraphs (e)
J6), (7) and (8) to read as follows:
§ 122.17 Minor modifications of permits.
**'***
(e) * * *
(6) Change the treatment program
requirements for land treatment units
under § 264.271 to improve treatment of
hazardous constituents, provided that
the change is minor.
(7) Change any conditions specified in
the permit for land treatment units to
reflect the results of field tests or
laboratory analyses used in making a '
treatment demonstration in accordance
with § 122.27(c), provided that the
change is minor.
(8) Allow a second treatment
demonstration for land treatment to be
conducted when the results of the first
demonstration have not shown the
"conditions under which the waste or
wastes can be treated completely as
required by § 264.272(a), provided the
conditions for the second demonstration
are substantially the same as the
conditions for the first demonstration.
*****
22. In 40 CFR Part 122, § 122.21(d) is
- amended by adding a third sentence to
the introductory text preceding
paragraph (1), and adding a new
paragraph (4) to read as fallows: '
§ 122.21 Purpose and scope of Subpart B.
*****
(d)**»
Owners and operators of hazardous
waste management units must have
permits during the active life (including
the closure period) of the unit, and, for
any unit which closes after [insert date 6
months after date of promulgation],
during any post-closure care period
required under § 264.117 and during any
compliance period specified under
§ 264.96, including any extension of that
compliance period under § 264.96(c).
*****
(4) Permits for less than an entire
facility. EPA may issue or deny a permit
for one or more units at a facility
without simultaneously issuing or
denying a permit to all of the units at the
facility. The interim status of any unit
for which a permit has not been issued
or denied is not-affected by the issuance
or denial of a permit to any other unit at
the facility.
* * * * *
23. In 40 CFR Part 122, § 122.25 is
t amended by revising paragraphs (a)(5),
(a)(13), (b)(3) and (b)(4), and by adding
new paragraphs (b)(6), (b)(7) and (c) to
read as follows:
§ 122.25 Contents of Part B.
* * * •* • *
(a)*** . '
(5) A copy of the general inspection
schedule required by § 264.15(b).
Include, where applicable, as part af the
inspection schedule, specific
requirements hi §§ 264.174, 264.194,
264.226, 264.254, 264.273, and 264.303.
*****
(13) A copy of the closure plan and,
where applicable, the post-closure plan
required by § § 264.112 and 264.118.
Include where applicable, as part of the
plans, specific requirements in
§§ 264.178, 264.197, 264.228, 264.258,
264.280, 264.310, and 264.351.
* * * * *
(b)***
(3) For facilities that store, treat, or
. dispose of hazardous waste in surface
impoundments, except as otherwise
provided in § 264.1:
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32370 Federal Register / Vol. 47, ifro. .143 / Monday, July 26, 1982 / Rules and Regulation's
(i) A list of the hazardous wastes
placed or to be placed in each surface
impoundment;
(ii) Detailed plans and an engineering
report describing how the surface
impoundment is or will be designed,
constructed, operated, and maintained
to meet the requirements of § 264.221.
This submission must address the
following items as specified in § 264.221:
(A) The liner system (except for an
existing portion of a surface
impoundment). If an exemption from the
requirement for a liner is sought as
provided by § 264.221(b), submit
detailed plans and engineering and
hydrogeologic reports as appropriate,
describing alternate design and
operating practices that will, in
conjunction with location aspects,
prevent the migration of any hazardous
constituents into the ground water or
surface water at any future time;
• (B) Prevention of overtopping; and
(C) Structural intergrity of dikes;
{iii) If an exemption from Subpart F of
Part 264 is sought, as provided by
§ 264.222(a), detailed plans and an
engineering report explaining the
location of the saturated zone in relation
to the surface impoundment, and the
design of a double-liner system that
incorporates a leak detection system
between the liners;
(iv) A description of how each surface
impoundment, including the liner and
cover systems and appurtenances for
control of overtopping, will be inspected
in order to meet the requirements of
§ 264.226 (a) and (b). This information
should be included in the inspection
plan submitted under paragraph (a)(5) of
this section;
(v) A certification by a qualified
engineer which attests to the structural
integrity of each dike, as required under
§ 264.226{c). For new units, the owner or
operator must submit a statement by a
qualified engineer that he will provide
such a certification upon completion of
construction in accordance with the
plans and specifications;
(vi) A description of the procedure to
be used for removing a surface
impoundment from service, as required
under § 264.227 (b) and (c). This
information should be included in the
contingency plan submitted under
paragraph (a)(7) of this section;
(viij A description of how hazardous
waste residues and contaminated
materials will be removed from the unit
at closure, as required under
§ 264.228(a)(l). For any wastes not to be
removed from the unit upon closure, the
owner or operator must submit detailed
plans and an engineering report
describing how § 264.228 (a)(2) and (b)
will be complied with. This information
should.be included in the closure plan
and, where applicable, the post-closure
plan submitted under paragraph (a){13)
of this section;
(viii) If ignitable or reactive wastes
are to be placed in a surface
impoundment, an explanation of how
§ 264.229 will be complied with;
(ix) If incompatible wastes, or
incompatible wastes and materials will
be placed in a surface impoundment, an
explanation of how § 264.230 will be
complied with.
(4) For facilities that store or treat
hazardous waste in waste piles, except
as otherwise provided in § 264.1:
(i) A list of hazardous wastes placed
or to be placed in each waste pile;
(ii) If an exemption is sought to
§ 264.251 and Subpart F of Part 264 as
provided by § 264.250(c), an explanation
of how the requirements of § 264.250(c)
will be complied with;
(iii) Detailed plans and an engineering
report describing how the pile is or will
be designed, constructed, operated and
maintained to meet the requirements of
§ 264.251. This submission must address
the following items as specified in
§ 264.251:
(A) The liner system (except for an
existing portion of a pile). If an
exemption from the requirement for a
liner is sought, as provided by
§ 264.251(b), the owner or operator must
submit detailed plans and engineering
and hydrogeologic reports as .
appropriate, describing alternate design
and operating pratices that will, in
conjunction with location aspects,
* prevent the migration of any hazardous
constituents into the ground water or
surface water at any future time;
(B) Control of run-on;
(C) Control of run-off;
(D) Management of collection and
holding units associated with run-on and
run-off control systems; and
(E) Control of wind dispersal of
particulate matter, where applicable;
(iv) If an exemption from Subpart F of
Part 264 is sought as provided by
§§ 264.252 or 264.253, submit detailed
plans and an engineering report
describing how the requirements of
§§ 264.252{a) or 264.253(a) will be
complied with;
(v) A description of how each waste
pile, including the liner and
appurtenances for control of run-on and
run-off, will be inspected in order to
meet the requirements of § 264.254 (a)
and (b). This information should be
included in the inspection plan
submitted under paragraph (a)(5) of this
section. If an exemption is sought to
Subpart F of Part 264-pursuant to
§ 264.253, describe in the inspection plan
how the inspection requirements of
§ 264.253(a)(3) will be complied with;
. (vi) If treatment is carried out on or in
the pile, details of the process and
equipment used, and the nature and
quality of the residuals;
(vii) If ignitable or reactive wastes are
to be placed in a waste pile, an
explanation of how the requirements of
§ 264.256 will be complied with;
(viii) If incompatible wastes, or
incompatible wastes and materials will
be placed in a waste pile, an
explanation of how § 264.257 will be
complied with;
(ix) A description of how hazardous
waste residues and contaminated
materials will be removed from the
waste pile at closure, as required under
§ 264.258(a). For any waste not to be
removed from the waste pile upon
closure, the owner or operator must
submit detailed plans and an
engineering report describing how
§ 264.310 (a) and (b) will be complied
with. This information should be
included in the closure plan and, where
applicable, the post-closure plan
submitted under paragraph (a)(13) of
this .section.
* * * ' * *
(6) For facilities that use land
treatment to dispose of hazardous
waste, except as otherwise provided hi
§ 264.1: •.
(i) A description of plans to conduct a
treatment demonstration as required
under § 264.272. The description must
include the following information:
(A) The wastes for which the
demonstration will be made and the
potential hazardous constituents in the
wastes;
(B) The data sources to be used to
make the demonstration (e.g., literature,
laboratory data, field data, or operating
data);
(C) Any specific laboratory or field
test that will be conducted, including
(1) the type of test (e.g., column
leaching, degradation);
(2) materials and methods, including
analytical procedures;
(3) expected time for completion;
{4} characteristics of the unit that will
be simulated in the demonstration,
including treatment zone characteristics,
climatic conditions, and operating
practices;
(ii) A description of a land treatment
program, as required under § 264.271.
This information must be submitted with
the plans for the treatment
demonstration, and updated following
the treatment demonstration. The land
treatment program must address the
following items:
(A) The wastes to be land treated;
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Federal Register / Vol. 47, No. 143 / Monday. July26, 1982 / Rules and Regulations 32371
(B) Design measures and operating
practices necessary to maximize
treatment in accordance with
§ 264.273(a) including:
(1) Waste application method and
rate;
(2) Measures to control soil pH;
(3) Enhancement of microbial or
chemical reactions;
(4] Control o.f moisture content;
(C) Provisions for unsaturated zone
monitoring, including:
(1) Sampling equipment, procedures,
and frequency;
(2) Procedures for selecting sampling
locations;
[3] Analytical procedures;
[4] Chain of custody control;
(5) Procedures for establishing
background values;
(0) Statistical methods for interpreting
results;
(7) The justification for any hazardous
constituents recommended for selection
as principal hazardous constituents, in
accordance with the criteria for such
selection in § 264.278(a);
(D) A list of hazardous constituents
reasonably expected to be in, or derived
from, the wastes to be land treated
based on waste analysis performed
pursuant to § 264.13;
(E) The proposed dimensions of the
treatment zone;
(Hi) A description of how the unit is or
will be designed, constructed,, operated,
and maintained in order to meet the
requirements of § 264.273. This
submission must address the following
items:
(A) Control of run-on;
(B) Collection and control of run-off;
(C) Minimization of run-off of
hazardous constituents from the
treatment zone;
(D) Management of collection and
holding facilities associated with run-on
and run-off control systems;
(E) Periodic inspection of the unit.
This information should be included in
the inspection plan submitted under
paragraph (a)(5) of this section;
(F) Control of wind dispersal of
particulate matter, if applicable;
(iv) If food-chain crops are to be
grown in or on the treatment zone of the
land treatment unit, a description of
how the demonstration required under
§ 264.276{a) will be conducted including:
(A) Characteristics of the food-chain
crop for which the demonstration will be
made;
(B) Characteristics of the waste,
treatment zone, and waste application
method and rate to be used in the
demonstration;
(C) Procedures for crop growth,
sample collection, sample analysis, and
data evaluation;
(D) Characteristics of the comparison
crop including the location and
conditions under which it was or will be
grown.
(v) If food-chain crops are to be
grown, and cadmium is present in the
land-treated waste, a description of how
the requirements of § 264.276(b] will be
complied with;
(vi) A description of the vegetative
cover to be applied to closed portions of
the facility, and a plan for maintaining
such cover during the post-closure care
period, as required under fj 264.280(a)(8)
and § 264.280(c)(2). This information
should be included in the closure plan
and, where applicable, the post-closure
care plan submitted under paragraph •
(a)(13) of this section;
(vii) If ignitable or reactive wastes
will be placed in or on the treatment
zone, an explanation of how the
requirements of § 264.281 will be
complied with;
(viii) If incompatible wastes, or
incompatible wastes and materials, will
be placed in or on the same treatment
zone, an explanation of how § 264.282
will be complied with.
(7) For facilities that dispose of
hazardous waste in landfills, except as
otherwise provided in § 264.1:
(i) A list of the hazardous wastes
placed or to be placed in each landfill or
landfill cell;
(ii) Detailed plans and an engineering
report describing how the landfill is or
will be designed, constructed, operated,
and maintained to comply with the
requirements of. § 264.301. This
submission must address the following
items as specified in § 264.301:
(A) The liner system and leachate
collection and removal system (except
for an existing portion of a landfill). If an
exemption from the requirements for a •
liner and a leachate collection and
removal system is sought as provided by
§ 264.301(b), submit detailed plans and
engineering and hydrogeologic reports
as appropriate, describing alternate
design and operating practices that will,
in conjunction with location aspects,
prevent the migration of any hazardous
constituent into the ground water or
surface water at any future time;
(B) Control of run-on;
(C) Control of run-off;
(D) Management of collection and
holding facilities associated with run-on
and run-off control systems; and
(E) Control of wind dispersal of
particulate matter, where applicable. •
(iii) If an exemption from Subpart F of
Part 264" is sought, as provided by
§ 264.302(a), the owner or operator must
submit detailed plans and an
engineering report explaining the
location of the saturated zone in relation
to the landfill, the design of a double-
liner system that incorporates a leak
detection system between the liners,
and a leachate collection and removal
system above the liners;
(iv) A description of how each landfill,
including the liner and cover systems,
will be inspected in order to meet the
requirements of | 264.303 (a) and (b).
This information should be included in
the inspection plan submitted under
paragraph (a)(5) of this section;
(v) Detailed plans and an engineering
report describing the final cover which
will be applied to each landfill or
landfill cell at closure in accordance
with § 264.310(a), and a description of
how each landfill will be maintained
and monitored after closure in
accordance with § 264.310(b). This
information should be included in the
closure and post-closure plans
submitted under paragraph (a)(13) of
this section.
(vi) If ignitable or reactive wastes will
be landfilled, an explanation of how the
requirements of § 264.312 will be
complied with;
(vii) If incompatible wastes, or
incompatible wastes and materials will
be landfilled, an explanation of how
§ 264.313 will be complied with;
(viii) If bulk or non-containerized
liquid waste or waste containing free
liquids is to be landfilled, an
explanation of how the requirements of
§ 264.314 will be complied with;
(ix) If containers of hazardous waste
are to be landfilled, an explanation of
how the requirements of § § 264.315 or
264.316, as applicable, will be complied
with.'
(c) Additional information
requirements. The following additional
information regarding protection of
ground water is required from owners or
operators of hazardous waste surface
impoundments, piles, land treatment
units, and landfills, except as otherwise
provided in § 264.90(b):
(1) A summary of the ground-water
monitoring data obtained during the
interim status period under § § 265.90-
265.94, where applicable.
(2) Identification of the uppermost
aquifer and aquifers hydraulically
interconnected beneath the facility
property, including ground-water flow .
direction and rate, and the basis for
such identification (i.e., the information
obtained from hydrogeologic
investigations of the facility area).
(3) On the topographic map required
under paragraph (a) (19] of this section,
a delineation of the waste management
area, the property boundary, the
proposed "point of compliance" as
defined under § 264.95, the proposed
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32372 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
location of ground-water monitoring
wells as required under § 264.97 and, to
the extent possible, the information
required in paragraph (c3(2) of this
section;
(4) A description of any plume of
contamination that has .entered the
ground water from a regulated unit at
the time that the application is
. submitted that:
(ij Delineates the extent of the plume •
tan the topographic map required under
paragraph (a){19) of this section;
pi) Identifies the concentration of
. each Appendix VHI of Part 261 of this
chapter constituent throughout the
plume or identifies the maximum
concentrations of each Appendix VIII
. constituent in the plume.
(S) Detailed plans and an engineering
report describing the proposed ground-
water monitoring program to be
implemented to meet the requirements
of §264,97;
[6] If the presence of hazardous
constituents has not been detected in
the ground water at the time of permit •
application, the owner or operator must
submit sufficient information, supporting
data, and analyses to establish a
detection monitoring program which
meets the requirements of §,264.98. This
submission must address the following
items as specific under § 264.98:
(i) A proposed list of indicator
parameters, waste constituents, or
reaction products that can provide a
reliable indication of the presence of
hazardous constituents in the ground
water;
(iij A proposed ground-water
monitoring system;
(iii} Background values for each
proposed monitoring parameter or
constituent, or procedures to calculate
such values; and
(iv) A description of proposed
sampling, analysis and statistical
comparison procedures to be utilized in
evaluating ground-water monitoring
data.
{7} If the presence of hazardous
constituents has been detected in the
ground water at the point of compliance
at the time of permit application, the
owner or operator must submit sufficient
information, supporting data, and
analyses to establish a compliance
monitoring program which meets the
requirements of § 264.99. The owner or'
operator must also submit an
engineering feasibility plan for a
corrective action program necessary to
meet the requirements of § 264.100,
except as provided in § 264.98(h)(5). To
demonstrate compliance with § 264.99,
the owner or operator must address the
following items:
(i) A description of the wastes
previously handled at the facility;
(iij A characterization of the
contaminated ground water, including
concentrations of hazardous
" constituents;
(hi) A list of hazardous constituents
for which compliance monitoring will be
undertaken in accordance with
§§ 264.97 and 264.99;
(iv) Proposed concentration limits for
• each hazardous constituent, based on
the criteria set forth hi § 264.94(a),
including a justification for establishing
any alternate concentration limits;
. (v) Detailed plans and an engineering
report describing the proposed ground-
water monitoring system, in accordance
with the requirements of § 264.97; and
(vi) A description of proposed
sampling, analysis and statistical
comparison procedures to be utilized in
evaluating ground-water monitoring
data.
(8) If hazardous constituents have
been measured in the ground water
which exceed the concentration limits
established under § 264.94 Table 1, or if
ground-water monitoring conducted at v-
the time of permit application under
§§ 265.90-265.94 at the waste boundary
indicates the presence of hazardous
constituents from the facility in ground
water over background concentrations,
the owner or operator must submit
sufficient information, supporting data,
and analyses to establish a corrective
action program which meets the
requirements of § 264,100. However, an
owner or operator is not required to
submit information to establish a
corrective action program if he
demonstrates to the Regional
Administrator that alternate
concentration limits will protect human
health and the environment after
considering the criteria listed in
§ 264.94(b). An owner or operator who is
not required to establish a corrective
action program for this'reason must
instead submit sufficient information to
establish a compliance monitoring •
program which meets the requirements
of § 264.99 and paragraph (c)(6) of this
section. To demonstrate compliance
with § 264.100, the owner or operator
must address, at a minimum, the
following items:
(i) A characterization of the
contaminated ground water, including
concentrations of hazardous
constituents;
(ii) The concentration limit for each
hazardous constituent found in the
ground water as set forth in § 264.94;
(iii) Detailed plans and an engineering
report describing the corrective action to
be taken; and
(iv) A description of how the ground-
water monitoring program will assess
the adequacy of the corrective action.
24. In 40 CFR Part 122, § 122.27 is
amended by revising'the section title
and adding new paragraph (c) to read as
follows:
§ 122.27 Short term and phased permits.
* * * * *
(c) Permits for land treatment
demonstrations using field tests or
laboratory analyses.
(1) For the purpose of allowing an
owner or operator te meet the treatment
demonstration requirements of § 264.272
of this chapter, the Director may issue a
treatment demonstration permit. The
permit must contain only those
requirements necessary to meet the
standards in § 264.272{c). The permit
may be issued either as a treatment or
disposal permit covering only the field .
test or laboratory analyses, or as a two-
phase facility permit covering the field
tests, or laboratory analyses, and
design, construction, operation and
maintenance of the land treatment unit.
(i) The Director may issue a two-
phase facility permit if he finds that,
based on information submitted in Part
B of the application, substantial,
although incomplete or inconclusive,
information already exists-upon which
to base the issuance of a facility permit.
(ii) If the Director finds that not
enough information exists upon which
he can establish permit conditions to
attempt to provide for compliance with
all of the requirements of Subpart M, he
must issue a treatment demonstration
permit covering only the field test or
laboratory analyses.
(2) If the Director finds that a phased
permit may be issued, he will establish,
as requirements in the first phase of the
facility permit, conditions for conducting
the field tests or laboratory analyses.
These permit conditions will include
design and operating parameters
(including the duration of the tests or
analyses and, in the case of field tests,
the horizontal and vertical dimensions
of the treatment zone), monitoring
procedures, post-demonstration clean-
up activities, and any other conditions
which the Director finds may be
necessary under § 264.272(c). The
Director will include conditions in the
second phase of the facility permit to
attempt to meet all Subpart M
requirements pertaining to unit design,
construction, operation, and
maintenance. The Director will establish
these conditions in the second phase of
the permit based upon the substantial
but incomplete or inconclusive
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Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32373
information contained in the Part B
application.
(i) The first phase of the permit will be
effective as provided in § 124.15(b) of
this Chapter.
(ii) The second phase of the permit
will be effective as provided in
paragraph (c)(4) of this section.
(3) When the owner or operator who
has been issued a two-phase permit has
completed the treatment demonstration,
he must submit to the Director a
certification, signed by a person
authorized to sign a permit application
or report under § 122.6, that the field
tests or laboratory analyses have been
carried out in accordance with the
conditions specified in phase one of the
permit for conducting such tests or
analyses. The owner or operator must
nlso submit all data collected during the
field tests or laboratory analyses within
90 days of completion of those tests or
analyses unless the Director approves a
later date.
(4) If the Director determines that the
results of the field tests or laboratory
analyses meet the requirements of
§ 264.272 of this Chapter, he will modify
the second phase of the permit to
incorporate any requirements necessary
for operation of the facility in
compliance with Part 264, Subpart M, of
this Chapter, based upon the results of
the field tests or laboratory analyses.
(i) This permit modification may
proceed as a minor modification under
§ 122.17, provided any such change is
minor, or otherwise will proceed as a
modification under § 122.15(a)(2).
(ii) If no modifications of the second
phase of the permit are necessary, or if
only minor modifications are necessary
and have been made, the Director will
give notice of his final decision to the
permit applicant and to each person
who submitted written comments on the
phased permit or who requested notice
of final decision on the second phase of
the permit. The second phase of the
permit then will become effective as
specified in § 124.15(b).
(iii) If modifications under
§ 122.15{a)(2) are necessary, the second
phase of the permit will become
effective only after those modifications
have been made.
tH< Doc. K-1MC9 Filed 7-23-02; (1:43 iraij
BILLING CODE 6560-50-M
40 CFR Part 123
[SWH-FRL 2089-4]
Requirements for Authorization of
State Hazardous Waste Programs
AGENCY: U.S. Environmental Protection
Agency (EPA).
ACTION: Final rule and interim final rule
with request for comments.
SUMMARY: On January 26,1981, EPA
published amendments to the schedule
for authorization of State hazardous
waste programs under the Resource
Conservation and Recovery Act. Those
amendments were published as an
interim final rule with a request for
comments. In response to comments,
EPA is today changing the schedule for
submission of State applications for
interim authorization and the date by
which State enabling legislation must be
in place. These changes, whiclvare
promulgated as a final rule, will provide
additional flexibility in the State
application process but will not alter
substantive environmental standards or
create significant economic impacts.
EPA is also today promulgating the
remainder of the January 1981
amendments as a final rule.
In addition, EPA is today
promulgating an interim final
amendment to Section 123.129, providing
a limited exception to the contents of
Component A of Phase II interim
authorization.
DATES: The amendments to Sections
123.122,123.125, 123.128, and 123.137
published today are final rules effective
July 26,1982. (The interim final
amendments published on January 26,
1981, were effective upon publication.)
The amendment to Section 123.129
published today is an interim final rule
effective July 26,1982. The Agency will
accept comments on this amendment
until September 24,1982.
ADDRESSES: Comments on the
amendment to Section 123.129 should be
sent to Docket Clerk (Docket No. 3006),
Office of Solid Waste (WH-562), U.S.
Environmental Protection Agency, 401M
St. S.W., Washington, D.C. 20460.
The public docket for these
regulations is located at the U.S.
Environmental Protection Agency, Room
S-269C, 401 M St. S.W., Washington,
D.C. 20460, and is available for viewing
from 9:00 AM to 4:00 PM, Monday
through Friday, excluding holidays.
FOR FURTHER INFORMATION CONTACT:
Bruce R. Weddle, Deputy Director, State
Programs and Resource Recovery
Division, Office of Solid Waste (WH-
563), U.S. Environmental Protection
Agency, 401 M Street, S.W.,
Washington, D.C. 20460, (202) 755-9107.
SUPPLEMENTARY INFORMATION:
I. Background
On May 19,1980 (45 FR 33384), EPA
published as a final rule the
requirements for interim authorization of
State hazardous waste programs under
Section 3006(c) of the Resource
Conservation and Recovery Act
(RCRA). These requirements, codified in
40 CFR Part 123, Subpart F, established
among other things two phases of
interim authorization and a schedule for
State applications for these phases. The
first phase (Phase I) authorizes States to
administer a hazardous waste program,
which includes the identification and
listing of hazardous wastes; the
regulation of generators and
transporters of hazardous wastes; and
the enforcement of preliminary
standards for hazardous waste
treatment, storage and disposal
facilities. The second phase (Phase II)
authorizes States to administer a permit
program for treatment, storage and
disposal facilities.
On January 26,1981 (46 FR 8298), EPA
published amendments to the schedule
for State applications for Phase II. of
interim authorization. Those
amendments were necessary to
reconcile Phase II with changes in the
schedule for promulgation of the Federal
permitting standards for hazardous
waste management facilities, codified in
40 CFR Part 264. As noted in the
preamble to those amendments, "the
substantive program requirements for
Phase II for the most part have not been
changed * * * Rather, these
amendments implement needed changes
in the schedule and related requirements
for Phase II to keep the interim
authorization program in
correspondence with the underlying
Federal program" (46 FR 8300).
In those amendments, EPA divided
Phase II of interim authorization into
"components". Each component
corresponds to one or more specific
categories of facilities requiring RCRA
permits (e.g., incinerators, landfills, etc.).
State programs can receive interim
authorization to issue permits to the
specific category or categories of
facilities covered by each component.
States may apply for authorization for
each component as it becomes available
and is announced in the Federal
Register, or may wait until all
components are announced and apply
for all of Phase II authorization at that
time. This approach gives States the
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32374
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
flexibility to adapt their Phase II
application schedule to State.needs.
II. Regulatory Changes Adopted Today
EPA received comments on the
amendments to Part 123, Subpart F, from
several State and local officials and
members of the regulated community, in
response to those comments, EPA is
today changing a number of provisions
dealing with the schedule for interim
authorization.
Several commenters suggested that 40.
CFR §§ 123.122 and 123.125, which
establish the schedule for State
applications for interim authorization
and the deadline for State enabling
legislation, be revised. After
consideration of these comments, EPA
has decided to modify these provisions
to provide additional flexibility to the
States. These changes are discussed in
the following parts of this preamble.
Section II Ji discusses an amendment to -
40 CFR § 123.129, which provides a
limited exception to the contents of
Component A of Phase II interim
authorization.
A. Deadline for Interim Authorization
Applications. Section 123.122{c}(l), as
amended on January 26,1981, provides
that the interim authorization
application period closes six months
after the effective date of the final
component of Phase II. EPA believes
that an application deadline is .
necessary to signal the end of the
interim authorization application
process and to encourage States to move
on to final authorization. However, EPA
. recognizes that some States which are
committed to administer an interim
authorization program may come close
but may still not be able to meet this
deadline, due to scheduling problems
created by State legislative and
regulatory processes.
- Therefore, today's amendments add a
provision that "the Regional
Administrator may extend the
application period for good cause." EPA
intends that this extension only be
granted on a case-by-case basis to
States which have made a good faith
effort to meet the application deadline
and which can submit a complete
application within a reasonable period
of time. States which will not be ready
to apply for interim authorization within
a reasonable period of time should turn
their efforts to preparing a final
authorization program. More 'than a
brief extension of the interim
authorization application period would .
be counter-productive, due to the limited
duration of interim authorization (it
expires 2 years after the effective date
of the last component) and the need for
States to obtain final authorization by
the end of interim authorization (in
order to avoid re version-of the program
to EPA).
B. Application Period for Phase I. In
the January 1981 amendments,
§ 123.122(c)(3) provided that States
could appjy for Phase I alone (without .
applying for any component of Phase II)
until "six months after the effective date
of the first component of Phase II." This
deadline for applying for Phase I alone
was January 13,1982.
The purpose of this deadline was to
ensure that State implementation of
Phase II was not unreasonably delayed.
Since the adoption of this deadline,
however, there have been a number of
delays and revisions in the Federal
Phase II regulations. As a result, a
number of States which desire to
implement the RCRA Phase I program
are not yet prepared to apply for Phase
n.
Therefore, EPA has decided to extend
the period during which States may
apply for interim authorization for Phase
I alone. Section 123.122(c}(3) is today.
removed from the State authorization
requirements. A State may now apply
for Phase I at any time prior to the
expiration of the interim authorization
application period. (This period is
established in 40 CFR § 123.122(c)(l), as
discussed above.)
C. Application Period for Individual
Phase II Components. The January 1981
amendments also set time limits for
State applications for individual
components of Phase II. Sections 123.122
(c)(5) and (6) established a one year
period during which a State could apply
for a particular Phase II component
without also applying for subsequent
components. This provision created
difficulties similar to those discussed
above for the Phase I deadline.
Comments received included the request
that more time be provided for Phase n
applications.
In response to comments, EPA has
decided to extend the application period
for each component of Phase II. Sections
123.122(c) (5) and (6) are today removed
from the State authorization
requirements. A State may now apply
for an individual component of Phase II
(without applying for any other
component) at any time prior to the
expiration of the interim authorization
application period.
D. Requirement to Apply for All Parts
of Interim Authorization. Section
123.122(c)(7), as amended on January 26,
1981, requires States which have
received partial interim authorization
(i.e., interim authorization for Phase I
alone or Phase I and some components
of Phase II) to apply for all of Phase II
within 6 months of the effective date of
the last component .of Phase II. Section
123.137 contains the related stipulation
that States with' partial interim
authorization which fail to submit an
amended application for all of Phase II
by the above deadline will terminate
and responsibility for RCRA
implementation will revert'to EPA.
EPA recognizes, as noted above, that
some States may come close but still not
be able to meet this deadline. In
addition, some States with partial
interim authorization may not wish to
apply for the remaining elements of
interim authorization and may decide,
instead, to prepare en application for
final authorization. (States may apply
for final authorization at any time after
the announcement of the last component
of Phase II. See § 123.31(c)(l), as
amended on January 26,1981.)
However, States with partial interim
authorization may find that they are
unable to apply for and receive final
authorization by the deadline cited
above in §§ 123.122(c)(7) and 123.137,
particularly given the delays in the
promulgation of the underlying Federal
program. In those circumstances, such
States would lose their partial interim
authorization. This result would disrupt
administration of the hazardous waste
program and complicate the transition to
State responsibility for RCRA
implementation.
To avoid such a result, EPA has today
added a provision to those sections that
"the Regional Administrator may extend
this deadline for good cause." EPA
intends that this extension be granted to
those States which are making a good
faith effort to apply for and receive final
authorization or the remainder of
interim authorization within a
reasonable period of time.
It should be noted that as a result of
other amendments adopted today,
several of the paragraphs in § 123.122(c)
have been renumbered. The provision
related to partially authorized States is
now § 123.122(c)(4).
E. Conditions for Phase II Application.
Section 123.122{d)(l) currently provides
that, a State may not apply for a
component of Phase n unless it is
already authorized for (or is
simultaneously applying for) Phase I and
previously announced components of
Phase II. Several commenters pointed
out that the ability of a State to
administer a permit program for a
particular Phase II component is not
necessarily contingent on authorization
for the other components. For example,
a State may operate a competent
permitting program under RCRA for the
facilities covered in Component B
(incinerators) without also operating a
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations 32375
permitting program for the facilities in
Component A (tanks, containers, piles
and surface impoundments).
Therefore, in response to comments,
EPA has decided to remove the
requirement in § 123.122(d)(l) that
States must be authorized for (or
simultaneously apply for) previously
announced components of Phase II
when applying for a particular
individual component. In other words,
application for components in order of
their announcement is no longer
required. States may now apply for
Phase n components ha any order (e.g.,
Component B, then Component A).
However, it continues to be essential
•that States obtain Phase I authorization
before (or at the same time) they receive
authorization for any component of
Phase n. Phase I contains the basic
framework of the hazardous waste
program. A State cannot effectively
implement the Phase II permitting
program without these elements.
Therefore, EPA will retain the
requirement that States must apply for
Phase I before (or at the same time] they
apply for a component of Pliase n.
F. Changes in the Federal
Regulations. The January 1981
regulations required that States applying
for Phase n authorization must amend
their programs to bring them into
conformance with the current Federal
program (including adopting changes as
necessary to conform with changes in
the Federal regulations). This basic
provision, in § 123.122(d)(2), is retained
in today's promulgation, but is slightly
modified to account for the change in
§ 123.122(d)(l) described above. Today's
amendment allows States to apply for a
particular Phase n component without
addressing changes in the Federal
regulations covered in other
components, if the State is not
authorized for or seeking authorization
for those other components.
In addition, § 123.122(d)(2) has been
reorganized and revised to more clearly
explain this requirement and to separate
the obligations of States already
authorized for parts of the RCRA
program from those States applying for
authorization for the first time. The
specific requirements which States must
address when applying for a Phase n
component are outlined in the Federal
Register announcement of that
component and in the RCRA State
Interim Authorization Guidance
Manual,
G. Deadline for State Enabling
Legislation. RCRA Section 3006(c)
provides that interim authorization may
be granted to those States which have
"in existence a hazardous waste
program pursuant to State law" no more
than 90 days after the "promulgation of
regulations under Sections 3002, 3003,
3004, and 3005V1 EPA interprets this
provision to mean that, at a minimum, a
State must, have basic enabling
legislation for the program in place, i.e.,
basic statutory authority to regulate
hazardous waste, in order to be eligible
for interim authorization.
The application of the 90 day deadline
has been a difficult issue, since the
Federal program is being implemented
in two phases and several components,
with a number of separate regulatory
promulgations. In the January 26,1981,
amendments, EPA applied the 90 day
eligibility requirement for State enabling
legislation to each component of Phase
n, since each component is created by a
promulgation under RCRA Section 3004.
Section 123.125(a) of those amendments
provided that the State enabling
legislation for each component must be
in existence within 90 days of the
promulgation of the Federal regulations
comprising that component.
Based on comments received
regarding this interpretation, EPA has
reconsidered the January 1981
amendment and has modified its
interpretation of the 90 day deadline.
We now agree that the 90 day
requirement in RCRA Section 3006(c)
probably was intended by Congress to
provide a one-time test to identify those
States with existing programs which
could qualify for interim authorization.
EPA's phased implementation of the
hazardous waste program does not '
provide a convincing reason to establish
additional 90 day deadlines or tests
which States must meet in order to
satisfy basic eligibility for interim
authorization.
The remaining question is when the
one-time eligibility test should occur.
RCRA establishes the Federal
hazardous waste program as both a
model for the development of State
programs and a minimum standard for
their approval. EPA believes that States
should have an opportunity to review all
of the major elements of the Federal
. program before they are required to
undergo an eligibility test based on the
existence of statutory authority.
Therefore, EPA has decided to tie the 90
day deadline to the announcement of
the final component of Phase II. At that
time, all of the major elements of the
Federal program will have been
established. The enabling legislation
requirement in Section 123.125(a) has
been revised to provide that: "The State
Attorney General or independent legal
counsel must certify that the enabling
legislation for the State's program was
in existence within 90 days of the
announcement of the last component of
Phase II."
Most States which have received
interim authorization for Phase I will
have already demonstrated adequate
authority and thus satisfied the enabling
legislation requirement. Unauthorized
States can satisfy the requirement by
certifying that the necessary legislation
was in place at any time prior to the
date 90 days after the announcement of
the final component of Phase II.
The 90 day deadline for State enabling
legislation is also mentioned in
§ 123.128(d) of these regulations, which
provides for a limited exception from
the generator, transporter, and related
manifest requirements. The reference to
the 90 day deadline in that paragraph is
today changed in conjunction with
EPA's modified interpretation of this
requirement. States which have received
Phase I interim authorization under the
terms of that paragraph may now apply
for interim authorization to implement
the manifest system and other generator
and transporter requirements "if the
enabling legislation for that part of the
program was in existence within 90 days
of the announcement of the last
component of Phase II."
H. Interim Authorization'to Permit
Storage Surface Impoundments. The
contents of Components A and B of
Phase n interim authorization were
announced on January 26,1981 (46 FR
7964). Component A covered tanks,
container storage facilities, waste piles
and storage surface impoundments.
Component B covered incinerators.
These components covered both new
and existing facilities in those
categories.
On October 20,1981, EPA proposed to
temporarily suspend the effective dates
of its permitting standards for
incinerators and storage surface
impoundments, as applied to existing
facilities, pending a reexamination of
their appropriateness for existing
facilities (46 FR 51407). In the preamble
to the proposed suspension, EPA stated
that the Agency's policy would be to
postpone decisions on the authorization
of State permitting programs for existing
incinerators and existing storage surface
impoundments until the Agency had
resolved this issue.
In'response to this policy, a few States
informed EPA of their intent to submit
draft applications for authorization of
Component A, excluding existing
storage surface impoundments.
Subsequently, EPA received negative
comments on the postponement of State
authorization for existing storage
surface impoundments and existing
incinerators, and decided to change this
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32376 Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
policy. On February 24,1982, EPA
announced that its new policy would be
to authorize State programs that meet
the regulatory requirements for
Components A and B to permit both new
and existing incinerators and storage
surface impoundments, as well as the
other facilities in those components (47
FR8010).
This change in policy raises questions
about the status of those States which
planned to apply for Component A
without addressing existing storage
surface impoundments. Those States
relied on the Agency's then-current
policy of postponing authorization for
such facilities and prepared applications
based on this understanding.
Furthermore, some States are
understandably reluctant to adopt
regulations corresponding to EPA's
current permitting standards for storage
surface impoundments, while EPA is
reexamining those standards.
Therefore, EPA today is amending
§ 123.129 to allow interim authorization
for Component A without storage
surface impoundments. States will thus
have the choice of either (1) including
new and existing surface impoundments
in Component A, as allowed by the
January 26,1981 announcement and the
February 24,1982 policy statement, or
(2) taking advantage of today's
amendment by excluding new and
existing surface impoundments from
Component'A.
Today's amendment requires that a
State authorized for Component A under
this exception must commit in its
Memorandum of Agreement with EPA to
adopt State permit standards for storage
surface impoundments which are
substantially equivalent to 40 CFR Part
264 no later than the State's application
for the component of Phase n which will
correspond to the Federal land disposal
standards. This provision ensures that
the duration of the exception will be
limited.
This exception applies to all storage
surface impoundments, both new and
existing. EPA has decided that the
exception should not be directed only at
existing storage surface impoundments,
as that would create confusion for the
public and the regulated community.'
Instead, States must choose to either
apply for all of Component A, including
both new and existing impoundments, or
to apply for Component A under this
exception, without being authorized to
permit any storage surface
impoundments, existing or new.
EPA's permit standards for storage
surface impoundments (40 CFR Part 264
Subpart K) will remain in effect in States
which are authorized fpr Compo.nent A
under this exception. EPA will follow .
the policy announced on October 20,
1981, for not calling in Part B permit
applications for existing surface
impoundments, pending a final decision
on the proposed suspension. However,
the Agency will process voluntarily
submitted permit applications for these
facilities, including applications from
new facilities.
HI. Other Actions on the January 1981
Amendments to Part 123
EPA.received other comments on the
January 1981 amendments to Part 123
which are not discussed in the preceding
section of this preamble. EPA's written
response to these comments on the
January 1981 promulgation is available
for public inspection at the RCRA
Docket Room, Room S-269C, 401 M
Street S.W., Washington, B.C. 20460.
Today, EPA is promulgating the
January 1981 amendments to Part 123,
Subpart F, including the additional
changes in § § 123.122,123.125,123,128,
and 123.137, as a final rule. Also, EPA is
today promulgating the additional
change in § 123.129 as an interim final
rule, with a request for comments. EPA
printed the entire Subpart F of Part 123,
as amended, in the January 1981
promulgation. Today EPA is publishing
only the changes discussed in the
preceding section of this preamble.
On January 26,1981, EPA also
published two minor amendments to 40
CFR Part 123, Subpart B, the
requirements for final authorization of
State hazardous waste programs. Those
amendments changed the application
and effective dates for'final
authorization, in conjunction with the
changes hi the schedule for interim
authorization. (See 46 FR 8300.) EPA
received no comments on those changes
in the final authorization dates. Those
changes to Part 123, Subpart B, are also
today promulgated as a final rule.
IV. Interim Final Promulgation
EPA believes that use of advance
notice and comment procedures for the
amendment to § 123.129 would be
impracticable and contrary to the public
interest, and therefore finds that good
cause exists for adopting this change in
interim final form (see 5 U.S.C.
553(b)(B)). As discussed in Section II.H.
above, without this amendment, States
which relied on EPA's policy statement
of October 20,1981, in preparing their
applications fpr interim authorization
might not be able to receive interim
authorization in an orderly and timely
fashion.
V. Effective Date
RCRA does not Specify when EPA's
regulations governing the authorization
of State programs are to take effect (see
Section 3010(b) of RCRA, 42 U.S.C.
6930(b)). The Administrative Procedure
Act (see 5 U.S.C. 553(d)) requires that
the effective date for a regulation be not
less than 30 days from the date of
publication, unless there is good cause
for an earlier date.
EPA finds that good cause exists for
making these amendments effective
upon publication. Most of the
amendments were promulgated as
interim final rules on January 26,1981, in
substantially the same form, and have
been in effect since that date. The
additional interim final amendment to
§ 123.129 is being promulgated to ensure
that States which relied on EPA policy
statements in preparing applications can
receive interim authorization in an
orderly and timely fashion. This is a rule
that recognizes an exemption and thus
may be made immediately effective (see
5 U.S.C. 553(d)(l}}.
The process for Phase II interim
authorization of State programs has
begun and is continuing. A delayed
effective date would confuse and disrupt
the ongoing process. Furthermore, these
amendments provide additional
flexibility to the States by simplifying
and relaxing the schedule for interim
authorization applications. Persons
affected by these amendments will
therefore not need lead time to comply
with new regulatory requirements.
Accordingly, EPA is making all of these
rules effective upon publication.
VI. Compliance With Executive Order
12291 '
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. The amendments promulgated
here are not major because they will not
result in an effect on the economy of
$100 million or more and will not result
in an increase in costs or prices. These
amendments will not result in any of the
other significant adverse effects
addressed in the Executive Order. These
amendments merely simplify and add
flexibility to requirements related to the
schedule for interim authorization of
State hazardous waste programs.
These amendments were submitted to
the Office of Management and Budget
(OMB) for review as required by
Executive Order 12291.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5
U.S.C. 601 etseq., EPA is required'to
determine whether a regulation will
have a significant impact on a
substantial number of small entities so
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Federal Register / Vol. 47, No. 143 / Monday. July 26. 1982 / Rules and Regulations 32377
as to require a regulatory flexibility
analysis. No regulatory flexibility
analysis is required where the head of
the agency certifies that the rule will not
have a significant economic impact on a
substantial number of small entities.
The amendments promulgated here
merely simplify and add flexibility to
requirements related to the schedule for
interim authorization of State hazardous
waste programs and do not affect the
compliance burdens of the regulated
community. Therefore, pursuant to 5
U.S.C. 605(b), I hereby certify that these
regulations will not have a significant
impact on a substantial number of small
entities.
VIII. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1980, 44 U.S.C. 3501 et seq., EPA must
estimate the paperwork burden created
by any information collection requests
contained in a proposed or final rule.
Because there are no information
collection activities created by this
rulemaking, the requirements of the
Paperwork Reduction Act do not apply.
Information collection requirements
contained elsewhere in 40 CFR Part 123
have been approved by the Office of
Management and Budget (OMB] under
the provisions of the Paperwork
Reduction Act and have been assigned
OMB control number 2000-0387.
List of Subjects in 40 CFR Part 123
Hazardous materials, Indians—lands.
Reporting and recordkeeping
requirements, Waste treatment and
disposal, Water pollution control, Water
supply, Intergovernmental relations,
Penalties, Confidential business
information.
Dated: July 0,1982.
Anne M. Gorsuch,
Administrator.
Title 40 CFR, Part 123, Subpart F. is
amended as follows:
PART 123—STATE PROGRAM
REQUIREMENTS x
1. The authority citation for Part 123,
Subpart F, reads as follows:
(Sees. 1006, 2002(a) and 3006 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) and
6926)
2. The interim final rules amending
Part 123 which were published on
January 26,1981 (48 FR 8298) are
adopted as final rules and further
amended as follows:
a. Section 123.122 is amended by
revising paragraphs (c) and (d) to read
as follows:
§123.122 Schedule.
* * * * • *
(c)(l) A State may apply for interim
authorization at any time prior to
expiration of the 6th month of the 24-
month period beginning with the
effective date of the last^component of
Phase II. The Regional Administrator
may extend the application period for
good cause.
(2) A State applying for interim
authorization prior to the announcement
of the first component of Phase II shall
apply only for interim authorization for
Phase I.
(3] A State may apply for interim
authorization for a component of Phase
II upon the announcement of that
component, provided that the State
meets the requirements of paragraph (d)
of this section.
(4) A State which has received interim
authorization for Phase I (or interim
authorization for Phase I and for some
but not all of the components of Phase
JQ) shall amend its original submission to
include all of the components of Phase II
not later than 6 months after the
effective date of the last component of
Phase n. The Regional Administrator
may extend this deadline for good
cause.
(d)(l) No State may apply for interim
authorization for-a component of Phase
II unless it: (i) has received interim
authorization for Phase I; or (ii) is
simultaneously applying for interim
authorization for that component of
Phase II and for Phase I.
(2) When a State applies for interim
authorization for a particular component
of Phase n, it shall demonstrate that its
interim authorization program for Phase
I (and, if applicable, its program for any
other components of Phase II) is
substantially equivalent to the Federal
program, including modification to the
Federal program, as follows:
(i) Any State already authorized for
parts of the Federal program shall
amend its original submission to include
any additional requirements for Phase I
(and any additional requirements for
other Phase II components for which the
State is authorized) which were
promulgated on or before the
announcement date of the particular
Phase II component being applied for.
(ii) Any State not yet authorized for
any of the Federal program shall include
in its submission those Phase I
requirements which were promulgated
on or before the announcement date of
the particular Phase II component being
applied for. Any new State program
which is applying for more than one
component of Phase II shall include in
its submission the additional
requirements for such other components
which were promulgated on or before
the announcement date of the particular
Phase II component being applied for.
(b) Section-123.125 is amended by
revising paragraph (a) to read as
follows:
§ 123.125 Attorney General's statement.
(a) Any State seeking to administer a
program under this subpart shall submit
a statement from the State Attorney
General (or the attorney for those State
or interstate agencies which have
independent legal counsel) that the
laws, of the State, or the interstate
compact, provide adequate authority to
carry out the program described under
§ 123.124 and to meet the applicable
requirements of this subpart This
statement shall include citations to the
specific statutes, administrative
regulations, and, where appropriate,
judicial decisions which demonstrate
adequate authority. Except as provided
in § 123.128(d), the State Attorney
General or independent legal counsel
must certify that the enabling legislation
for the State's program was in existence
within 90 days of the announcement of
the last component of Phase II. State
statutes and regulations cited by the
State Attorney General or independent
legal counsel shall be lawfully adopted
at the time the statement is signed and
shall be fully effective by the time the
program is approved. To qualify as
"independent legal counsel" the
attorney signing the statement required
by this section must have full authority
to independently represent the State
agency in court on all matters pertaining
to the State program. In the case of a
State applying only for interim ^
authorization for a component of Phase
II, the Attorney General's statement
submitted for interim authorization for
Phase I (or for Phase I and other
components of Phase II) shall be
amended and recertified to demonstrate
adequate authority to carry out all
requirements of that component.
* * * # : * _^
c. Section 123.128 paragraph (d) is
amended by inserting the following
'words in the twenty-first line after the
phrase "within 90 days" and by
removing the words "of the
promulgation of Phase I":
§ 123.128 Program requirements for
interim authorization for Phase I.
*****
(d) Limited exceptions from generator,
transporter, and related manifest
requirements.
* * * of the announcement of the last
component of Phase II, * * *
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32378 Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules ^nd Regulations
d. Section 123.137 is amended by
revising paragraph (a) to read as
follows:
§ 123.137 Revision of State programs.
(a) A State program approved for
interim authorization for Phase I or for
Phase I and for some but not all
components of Phase II shall terminate.
on the last day of the 6th month after the
effective date of the last component of
Phase n and EPA shall administer and
enforce the Federal program hi the State
commencing on that date, if the State
has failed to submit by that date an
amended submission pursuant to
§ 123.122(c)(4). The Regional
Administrator may extend this deadline
for good cause.
* * * * *
e. Section 123.137 paragraph (b] is
amended by inserting the following
words hi the tenth line after the phrase
"pursuant to" and by removing the
words "§ 123.122(c)(7}":
§ 123.137 Reversion of State programs.
* * * * *
(b)* * * §123.122(c)(4)* * *
3. Section 123.129(a) is amended as an
interim final rule by adding new
paragraphs (a)(4) and (a)[5) to read as
follows:
§123.129 Additional program
requirements for interim authorization for
Phase II.
(a) * * * ,
(4) The Administrator may authorize a
State program for Phase H Component
A, even though the State program does
not have standards corresponding to 40
CFR Part 264 Subpart K (Surface
Impoundments), if the State commits in
its Memorandum of Agreement to adopt
State standards substantially equivalent
to 40 CFR Part 264 Subpart K no later
than the State's application for the
Phase II component corresponding to the
Federal land disposal standards.
(5) Any State which receives interim
authorization for Component A without
surface impoundment standards,
pursuant to paragraph (a)(4) of this
section, may not receive interim
authorization for the Phase II component
corresponding to the Federal land
disposal standards unless it has
standards substantially equivalent to 40
CFR Part 264 Subpart K hi effect.
*****
[PR Doc. 82-19473 Filed 7-23-82; 8:45 am]
BILLING CODE 6560-50-M
40 CFR Part 123
[SWH-FRL 2173-2]
Authorization of State Hazardous
Waste Programs.
AGENCY: U.S. Environmental Protection
Agency (EPA).
ACTION: Announcement of Component C
of Phase II Interim Authorization, and
Beginning of Final Authorization.
SUMMARY: The regulations governing
authorization of State hazardous waste
programs under the Resource
Conservation and Recovery Act provide
that EPA will announce each of the
components of Phase n interim
authorization hi the Federal Register.
This notice describes the content,
application requirements, and effective
date of the last component of Phase II
(Component C), which corresponds to
the Federal permitting standards for
land disposal facilities. States may
commence the application process for
Phase n Component C with this
announcement.
The announcement of the last
component of Phase n enables the final
authorization process to begin, because
the major elements of the Federal
hazardous waste program are now in
place. States may commence the
application process for final
authorization with today's
announcement.
This notice also describes several
important deadlines in the interim
authorization process which are created
by today's announcement.
FOR FURTHER INFORMATION CONTACT:
Bruce R. Weddle, Deputy Director, State
Programs and Resource Recovery
Division, Office of Solid Waste (WH-
563), U.S. Environmental Protection
Agency, 401 M Street, S.W.,
Washington, D.C. 20460, (202) 755-9107.
FOR FURTHER INFORMA TION ON
IMPLEMENTATION CONTACT:
Region I, Dennis Huebner, Chief,
Waste Management Branch, John F.
Kennedy Building, Boston,
Massachusetts 02203, (617) 223-5775.
Region II, Dr. Ernest Regna, Chief,
Solid Waste Branch, 26 Federal Plaza,
New York, New York 10278, (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, 111 West
Jackson Street, Chicago, Illinois 60604,
(312) 886-7435.
Region VI, R. Stan Jorgensen, Chief,
Solid Waste Branch, 1201 Elm Street,
First International Building, Dallas,
Texas 75270, (214) 767-2645.
Region VII, Robert L. Morby, Chief,
Hazardous Materials Branch, 324 East
llth Street, Kansas City, Missouri 64106,
(816) 374-3307.
Region VIII, Louis W. Johnson, Chief,
Waste Management Branch, 1860
Lincoln Street, Denver, Colorado 80295,
(303)327-2221.
Region IX, Philip Bobel, Chief,
Hazardous Materials Branch, 217
Freemont Street, San Francisco,
California 94105, (415) 974-8165.
Region X, Kenneth D. Feigner, Chief,
Waste Management Branch, 1200 6th
Avenue, Seattle, Washington 98101,
(206) 442-1260.
SUPPLEMENTARY INFORMATION:
I. Background
Section 3006 of the Resource
Conservation and Recovery Act (RCRA)
provides for two types of EPA approval
of State hazardous waste programs to
operate in lieu of the Federal program:
1. State programs which are
"substantially equivalent" to the Federal
program may receive a temporary
"interim authorization"; and
2. State programs which are
"equivalent" to and "consistent" with
the Federal program and "provide
adequate enforcement" may receive a
"final authorization".
The final authorization process has
not been available to States up to now,
because the major elements of the
Federal hazardous waste program were
not in place. Instead, State programs
have been granted interim authorization
hi phases and components
corresponding to the phased
development of the Federal program.
On May 19,1980, EPA published the
requirements for interim authorization of
State hazardous waste programs (see 45
FR 33384). These requirements, codified
in 40 CFR Part 123, Subpart F,
• established, among other things, the two
phases of interim authorization and a
schedule for State applications for these
phases. The first phase (Phase I)
authorizes States to administer a
hazardous waste program, which
includes the identification and listing of
hazardous wastes; the regulation of
generators and transporters of
hazardous wastes; and the enforcement
of preliminary standards for hazardous
waste treatment, storage and disposal
facilities. The second phase (Phase II)
authorizes States to administer a permit
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Federal Register / Vol. 47, No. 143 / Monday, July 26. 1982 / Rules and Regulations 32379
program for treatment, storage and
disposal facilities.
Phase II of interim authorization, in
turn, is divided into three "components"
corresponding to the major Federal
permitting standards for hazardous
waste management facilities, codified in
40 CFR Part 264. Each component
corresponds to one or more specific
categories of facilities requiring RCRA
permits (e.g., incinerators, landfills).
State programs can receive interim
authorization to issue permits to the
specific category or categories of
facilities covered by each component.
States may apply for authorization for
each component as it becomes available
and is announced in the Federal
Register, or may wait until all three
components are announced and apply
for all of Phase II authorization at that
time. This approach gives States the
flexibility to adapt their Phase II
application schedule to State needs.
States with interim authorization must,
however, apply for all of Phase II within
six months of the effective date of the
last component (See amendments to
Part 123 published on January 26,1981.
46 FR 8298, and elsewhere in today's
Federal Register.)
EPA has to date announced the first
two components of Phase II. The
contents of Components A and B of
Phase II interim authorization were
announced on January 26,1981 (46 FR
7964). Component A covers tanks,
container storage facilities, waste piles
and storage surface impoundments.
Component B covers incinerators. The
remaining component of the Phase II
program, Component C, covers land
disposal facilities.
Final authorization can begin once the
major elements of the Federal program
are in place, which occurs when the
Phase II permit program is complete.
Section 123.31(c) provides that States
may apply for final authorization "at
any time after the promulgation of the
lust component of Phase II."
Today's promulgation of standards for
lund disposal facilities elsewhere in the
Federal Register completes the
establishment of the basic Federal
hazardous waste program. This event
has a number of significant effects on
the State authorization process, which
are described in this notice.
Today, EPA:
• Announces the contents,
application requirements, and effective
date of Component C of Phase II,
corresponding to the Federal permitting
standards for land disposal facilities.
Component C will be the last Phase II
component.
• Announces the beginning of the
final authorization process.
• Announces several important
deadlines in the interim authorization
process, which are created by the above
events.
The remainder of this notice discusses
these actions in more detail.
II. Component C of Phase II. Interim
Authorization
A. Content of Component C
Component C corresponds to the
Federal standards for issuing permits to
four types of land disposal facilities:
landfills, land treatment units, waste
piles, and surface impoundments.
Component C also includes the new
options for storage surface
impoundments and waste piles added
by today's promulgation. The Federal
technical regulations for land disposal
are codified in 40 CFR Part 264, Subparts
F, K, L, M, and N. A State receiving
interim authorization for Phase II,
Component C, will be authorized to
administer a State permit program under
RCRA for the above categories of
facilities, in lieu of the Federal permit
program for these facilities.
B. Relationship Between Components A
andC
Subparts K and L of Part 264 (Surface
Impoundments and Waste Piles) were
originally promulgated on January 12,
1981 (see 46 FR 2802). Those regulations
addressed storage and treatment in
certain classes of surface impoundments
and waste piles, and were included in
Component A (see 46 FR 7964, January
26,1981). Subparts K and L are today
being amended as part of the land
disposal promulgation, and these
amendments will replace the January 12,
1981 versions of those Subparts when
the amendments become effective on
January 26,1983. Given this situation,
States may apply for interim
authorization for Subparts K and L in
the following manner:
1. States which submit a complete
application for Component A to EPA
and for which EPA has published a
notice of public hearing prior to the
effective date of today's amendments to
Subparts K and L may apply for
Component A based upon the original
announcement of Component A,
including the January 12,1981 provisions
of Subparts K and L. * A number of
States are currently preparing to apply
for Component A based on the original
EPA announcement, and this policy
enables such States to proceed to
complete application without a sudden
change in the application requirements.
States which receive interim
authorization for Component A based
on the January 12,1981 provisions of
Subparts K and L, will be authorized to
issue RCRA permits to the categories of
facilities covered in those provisions,
but will not be authorized to issue
RCRA permits to other types of surface
impoundments or waste piles. (A State
will still be able to apply for Component
A under the exception clause at
§ 123.129(a)(4), without covering surface
impoundments at all.)
2. After the effective date of today's
amendments to Subparts K and L, States
will be able to apply for interim
authorization to permit surface
impoundments and waste piles by
applying for Component C, which
corresponds to the amended provisions
of Subparts K and L. After that point, the
contents of Component A will be limited
to storage and treatment in containers
and tanks. This is because the January
12,1981 provisions of Subparts K and L
originally included in Component A will
have been replaced by today's
amendments. Therefore, States will
need to address these amendments by
applying for Component C in order to
receive interim authorization to permit
surface impoundments and waste piles.
This change in the content of
Component A does not affect any State
that receives authorization for
Component A based on a complete
application submitted before the
effective date of today's amendments to
Subparts K and L
3. States with interim authorization
must apply for all of Phase II within one
year of today's announcement (see
§ 123.122(c)(4)). Therefore, States will
have to apply for Component C,
including today's amendments to
Subparts K and L, by that date or face
reversion of the RCRA program to EPA.
(See discussion of "States with Partial
Interim Authorization" in Section IV of
this preamble.)
1 Prior to the effective date of today's
amendments to Subparts K and L, EPA will review
such applications for Component A baaed upon the
original announcement of Component A, including
the January 12.1981 provisions of Subparts K and L.
After the effective date of today's amendments to
Subparts K and L, EPA will review such
applications for Component A based upon the
portions of the amended Subparts K and L,
corresponding to the January 12 provisions, since
those amendments replace the previous language of
those Subparts. EPA anticipates that any State
program which adopts the January 12,1981
standards for permitting double-lined storage
surface impoundments and waste piles with liners
will be found substantially equivalent to the
amended provisions of Subparts K and L for those
limited categories of facilities.
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32380 Federal Register / Vol. 47. No. 143 / Monday, July 26, 1982 / Rules and Regulations
C. Requirements for State-Applications
for Component C
In order to receive interim
authorization for Phase II, Component C,
. a State must demonstrate that:
1. Its land disposal permit program
provides "substantially the same degree
of human health and environmental
protection" as the Federal permitting
standards for land disposal facilities
(see § 123.129(a)(l)). These Federal
standards include the administrative
permit standards (40 CFR Part 264,
Subparts A-E, G-H), as they apply to
land disposal facilities, and the
technical land disposal standards (40
CFR Part 264, Subparts F, K, L, M, and
N).
2. Its permitting requirements and
procedures are substantially equivalent
to the Federal regulations cited in
§ § 123.7 (a) and (b). Those regulations
ere the applicable Federal procedures
from 40 CFR Parts 122 and 124 (see
§ 123.129(d)).
3. It has received interim
authorization for Phase I or is
simultaneously applying for interim
authorization for Phase II (see
§ 123.122(d)(l), as amended elsewhere in
today's Federal Register).
4. Its interim authorization program
(for any phase or component) is
substantially equivalent to applicable
modifications to the Federal program
(see § 123.122(d)(2)), Some of the Federal
regulations have been revised since
their original promulgation. A State
applying for Component C must
demonstrate that its program is
substantially equivalent to"all applicable
requirements, including regulatory
amendments, which have been
promulgated on or before the date of
this notice. Amendments to the
regulations cited above in items (1), (2),
and (3) would have to be addressed, if
such amendments make the Federal
program more stringent. For example, a
State authorized for Phase I based on
the May 19,1980 regulations and
applying for Component C would have
to address additions to the regulated
universe of hazardous waste and the
establishment of the financial
responsibility requirements for facilities
with interim status. In addition, a State
authorized for or seeking authorization
for Phase II'Components A and/or B and
applying for Component C would have
to address amendments to the Federal
regulations corresponding to
Components A and/or B, if such
amendments make the Federal program
more stringent.
States applying for Component C (or
other Phase II components) will not be
required to address changes to the
Federal program adopted after today's
date. Such changes, including
amendments to Part 264 covering new
processes not currently subject to
standards (e.g., underground tanks
which cannot be entered for inspection),
would be addressed as part of the final
authorization process established in
§ 123.13(e). Since Component C is the
last Phase II component, interim
authorization will not be available for
permitting such new processes, and EPA
will retain permitting responsibility until
the State receives final authorization for
the relevant program element. (See
discussion below under Final
Authorization.)
EPA will soon distribute to the States
and other interested persons an
addendum to the RCRA State Interim
Authorization Guidance Manual which
will specify the application process and
requirements for Component C in more
detail. This Manual will contain
checklists outlining the requirements
contained in the various regulations
mentioned above, including a list of-
specific amendments to the Federal
regulations which must be addressed in
the State application for Component C.
D. States Authorized for Components A
or B Under Exception Clauses
Recent amendments to § 123.129(a)
allow States to receive interim •
authorization for Phase II Components
A and/or B without coverage of certain
requirements if specific conditions are
met (see 47 FR 16552, April 16,1982, and
amendments promulgated elsewhere in
today's Federal Register). A State
authorized under these exception
clauses must take the following actions
hi order to receive interim authorization
for Phase II Component C:
1. A State which received interim
authorization for Phase II Component A
or B, or both, pursuant to % 123.129(a)(2)
must adopt State liability coverage
requirements by the time of its
application for Component C. The State
liability coverage requirements must be
in effect before such a State can receive
interim authorization for Component C.
2. A State which received interim
authorization for Phase II Component A
pursuant to § 123.129(a)(4) must adopt
State standards substantially equivalent
to today's amendments to 40 CFR Part
264 Subpart K (Surface Impoundments)
by the time of its application for
Component C. These State standards
must be in effect before such a State can
receive interim authorization for
Component C.
E. Effective Date of Component C
States may apply for interim
authorization for Phase II, Component C
commencing with this announcement.
State interim authorization for Phase II,
Component C can take effect on or after
January 26,1983.
III. Final Authorization of State
Hazardous Waste Programs
A. Final Authorization Program
As noted earlier, a State may apply
for final authorization at any time after
the announcement of the last component
of Phase II, which completes the
establishment of the basic elements of
the Federal hazardous waste program.
Today's announcement of Component C
notes that it is the last Phase II
component. Therefore, the application
process for final authorization may
begin commencing with this
announcement.
Section 123.31(c)(2) provides that
State programs under final authorization
may take effect on the effective date of
the last component of Phase II.
Therefore, State final authorization can
take effect on or after January 26,1983.
Unlike interim authorization, final
authorization does not expire after a
limited period of time; likewise, the
application period for final authorization
does not close at a set time. States must
satisfy the requirements of 40 CFR Part
123 Subparts A and B to receive final
authorization, regardless of their interim
authorization status. States need not
have received interim authorization in
order to qualify for final authorization.
EPA will soon distribute to the States
and other interested persons a RCRA
State Final Authorization Guidance
Manual which will specify the
application process and requirements
for final authorization. This Manual will
contain checklists outlining the
requirements contained in 40 CFR Part
123 Subparts A and B.
B. Future Changes and Additions to the
Federal Regulations
The promulgation of the land disposal
permitting standards completes the
establishment of the basic Federal
hazardous waste program. However,
EPA anticipates that there will be some
future modifications to the Federal
program, as new information is obtained
regarding the characteristics of
hazardous wastes, technologies for
treatment, storage, and disposal, and
implementation of the current
regulations. EPA is conducting
Regulatory Impact Analyses on the
major hazardous waste regulations and
is examining a "degree of hazard"
approach to managing hazardous
wastes. EPA also plans to add
permitting standards for several
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
32381
processes not currently covered by the
Part 264 standards for owners and
operators of hazardous waste
management facilities. These new
standards will address such processes
as (I) treatment or storage in certain
types of "underground tanks" not now
covered by Part 264, (2) thermal
treatment of hazardous wastes (in
devices other than incinerators), and (3)
treatment of hazardous wastes by
chemical, physical or biological methods
(in other than tanks, surface
impoundments or land treatment
facilities).
Despite these plans to revise and
supplement the scope of the Federal
permit standards, EPA believes that the
basic elements of the RCRA permit
program are now in place and that final
authorization of State programs should
commence. Permit standards have been
promulgated for the hazardous waste
facilities which handle the vast majority
of wastes and generally represent the
most serious environmental and public
health concerns (i.e., landfills, surface
Impoundments, and incinerators). The
future promulgation of the few
remaining standards (e.g., thermal
treatment), while important additions,
will serve to "fill out" a large completed
regulatory framework.
EPA announced on January 26,1981,
that it might "allow final authorization
to begin ... with one or two Part 264
Subparts unpromulgated. EPA may
decide to do this if, for example, the
standards for thermal treatment or
chemical, physical and biological
. treatment have not been promulgated
' when the land disposal standards are
promulgated" (46 FR 8300). The land
disposal standards have been the major
"missing piece" of the RCRA program,
and their promulgation establishes a
program which is sufficiently
comprehensive for final authorization to
begin. Furthermore, the interim
authorization program is limited in
duration by the language of RCRA. EPA
does not believe that any further
extension of interim authorization and
the further postponement of final
authorization are warranted. It was
clearly the intent of Congress that once
the major regulatory elements were in
place, final authorization should be.
made available. Therefore, EPA will
proceed with the final authorization
process as described in today's notice.
This decision raises two questions
concerning the future additions to the
Federal regulatory program: (1) When
will States that receive final
authorization be required to adopt those
new standards, and (2) what is the
status of facilities for which EPA has not
yet promulgated Part 264 standards but
which are located hi States with final
authorization?
The final authorization regulations
contain procedures for the revision of
already approved State programs when
Federal regulations are modified or
supplemented. Section 123.13(e)
provides that State programs approved
for final authorization must make
revisions requked by changes to the
Federal RCRA standards "within one
year of the date of promulgation of such
[new or modified] regulation, unless a
State must amend or enact a statute in
order to make the required revision in
which case such revision shall take
place within two years." This language
provides a clear and orderly process for
maintaining the "equivalence" of State
programs that have received final
authorization.
Owners and operators of facilities
located in a State with final
authorization are generally subject to
that State's RCRA program, since the
State program operates "in lieu of the
Federal program. However, such a State
may not issue a RCRA permit to a
facility before the appropriate facility
standard (e.g., the standard for thermal
treatment) has been promulgated by
EPA and the State's program is judged
equivalent to and consistent with the
Federal program. This is because there
would be no Federal program covering
that group of facilities for the State to be
"equivalent" to or to operate "in lieu of
prior to EPA's promulgation of such
standards. A State may regulate and
permit such facilities independently
under the provisions of State law, but
such State permits would not be
considered RCRA permits. After the
appropriate Federal facility standard
has been promulgated, the authorized
State would be required to modify its
program according to the dates
established in § 123.13(e).
Under current regulations, the
affected facility would not be subject to
the RCRA standards until the State
adopted equivalent standards and those
were approved by EPA. Section 264.1(f)
provides that the Federal standards for
owners and operators of hazardous
waste facilities are not applicable in
States with final authorization.
Therefore, there could be a one (or two)
year period during which the new RCRA
standards would not apply in such a
State, until the State adopted an
equivalent and consistent standard.
RCRA permits could not be issued to
affected facilities during the one (or two)
year period described above, and
operation (and, in some cases,
construction) of new facilities in the
subject categories would not be allowed.
Such a de facto ban on construction
and operation of the affected new
facilities is clearly undesirable, given
the general need for additional capacity
for the treatment, storage and disposal
of hazardous wastes and the prospect
that new facilities in the categories
under discussion would operate with a
higher level of environmental protection
than many older, more conventional
facilities. To avoid this situation, EPA,
elsewhere in today's Federal Register, is
amending § 264.1(f) to make Part 264
permit standards for new categories of
facilities applicable to facilities in States
with final authorization until the State
has adopted equivalent State standards.
This will allow EPA to issue RCRA
permits during-the one (or two) year
period when the authorized State lacks
RCRA permitting authority for those
new categories of facilities. This
amendment is directed at the small
number of new facilities in the
designated categories which would
otherwise be unable to conduct
necessary activities during this period of
State regulatory development. This
amendment also clarifies the
applicability of permit standards for
new categories of facilities in States
with Phase II interim authorization.
IV. Deadlines in the Interim
Authorization Process
A number of important deadlines for
interim authorization are triggered by
the announcement of the final Phase II
corrponent. This section of the notice
identifies these deadlines.
A. Expiration of Interim Authorization
RCRA § 3006(c) provides that interim
authorization extends for 2%. years after
the promulgation of the Federal
hazardous waste regulations. Section
123.122(b) of the State authorization
requirements interprets this provision to
mean that interim authorization "may
extend for a 24-month period from the
effective date of the last component of
Phase II." (This expiration date is 2%
years after the promulgation of the last
major element of the Federal
regulations.)
Since Component C is the last Phase II
component, the two year prior begin on
January 26,1983. At the end of that
period, "all interim authorizations
' automatically expire and EPA shall
administer the Federal program in any
State which has not received final
authorization" (see § 123.122(b)(2)). EPA
encourages ail authorized States to
prepare and apply for final authorization
well in advance of this deadline, in
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32382
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Rules and Regulations
order to avoid reversion of the RCRA
program to EPA.
B. End of Interim Authorization
Application Period
Section 123.122(c)(l) provides that a
State may apply for interim
authorization until the end of the 6th
month after the effective date of the last
Phase II component. The interim
authorization application period will
close on July 26,1983.
EPA is amending this provision
elsewhere in today's Federal Register by
adding that "the Regional Administrator
.may extend the application period for
good cause." The preamble to this
amendment notes that "EPA intends
that this extension only be granted on a
case-by-case basis to States which have
made a good faith effort to meet the
application deadline and* which can
submit a complete application within a
reasonable period of time".
C, States With Partial Interim
Authorization
Section 123.122(c)(4),,as amended
elsewhere in today's Federal Register,
requires States which have received
partial interim authorization p.e.,
interim authorization for Phase I alone
or Phase I and some components of
Phase II) to. apply for all of Phase II
within 6 months of the effective date of
the last component of Phase II. This
deadline will occur on July 26,1983.
Section 123.137 contains the related
stipulation that State programs with
partial interim authorization which fail
to submit an amended application for all
of Phase II which meets the
requirements of the Federal program by
the above deadline will terminate and
responsibility for RCRA implementation
will revert to EPA.
Alternatively, State programs with
partial interim authorization can avoid
program reversion to EPA by applying
for and receiving final authorization 'by
the above deadline. In addition, today's
amendments to these two sections
provide that the Regional Administrator
may extend the deadline for good cause.
This extension is intended to be granted
in the same amanner as the extension to
the application deadline discussed
earlier.
D. Deadline for State Enabling
Legislation
RCRA Section 3006(c) provides that
interim authorization may be granted to
those States which have "in existence a
hazardous waste program pursuant to
State law" no more than 90 days after
the "promulgation of regulations under
Sections 3002, 3003, 3004, and 3005."
EPA interprets this provision to mean
that, at a minimum, a State must have
basic enabling legislation for the
program in place, i.e., basic statutory
authority to regulate hazardous waste,
in'order to be eligible for interim
' authorization.
The deadline by which the State
enabling legislation must be in place is
found in § 123.125(a). This section is -
amended elsewhere in today's Federal
Register to tie the deadline to the final
Phase n component, which establishes
the last major elements of the Federal
program. This section is revised to
provide that: "The State Attorney
General or independent legal counsel
must certify that the enabling legislation
for the State's program was in existence
within 90 days of the announcement of
the last component of Phase II." This
deadline will occur on October 25,1982.
Most States which have received
interim authorization for Phase I will
have already demonstrated adequate
authority and thus satisfied the enabling
legislation requirement. Unauthorized
States which desire to apply for interim
authorization can satisfy the
requirement by certifying that the
necessary legislation was in place at
any time prior to the date given above.
V. Compliance With Executive Order
12291
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. The notice published today is
not major because it will not result in an
effect on the economy of $100 million or
more and will not result in an increase
in costs or prices. It will not result in
any of the other significant adverse
effects addressed in the Executive
Order. The notice announces the last
component of Phase II interim
authorization, the beginning of final
authorization, and several deadlines in
the interim authorization process. These
announcements are based on and carry
out regulations'promulgated under
RCRA.
This notice was submitted to the
Office "of Management and Budget
(OMB) for review as required by
Executive Order 12291.
VI. Authority
Sections 1006, 2002(a) and 3006 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) and 6926.
List of Subjects in 40 CFR Part 123
Hazardous materials, Indians-lands,
Reporting and recordkeeping
requirements, Waste treatment and
disposal, Water pollution control, Water
supply, Intergovernmental relations,
Penalties, Confidential business
information.
Dated: July 9,1982.
Anne M. Gorsucb,
Administrator.
[FR Doc. 82-19471 FUed 7-23-82; 8:45 am]
BILLING CODE 6560-50-M
40 CFR Part 264
[SW-FRL 2173-1}
Hazardous Waste Management
System; Standards for Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Interim .final rule.
SUMMARY: Elsewhere in today's Federal
Register, EPA announces that States
may commence the application process
for final authorization. As described in
that announcement, EPA plans to add
permitting standards for several
processes which are not currently
covered by the Part 264 standards for
owners and operators of hazardous
waste management facilities. Section
123.13(e) requires States with final
authorization to make revisions to their
programs "within one year of the date of
promulgation of such [Federal]
regulations, unless a State must amend
or enact a statute... in which case
such revision shall take place within
two years." Under the current
regulations, until a State makes those
revisions, neither EPA nor that State has
the authority to issue RCRA permits to
facilities covered by those new
permitting standards, including new
facilities which need a RCRA permit in
order to commence operation (and, in
some cases, construction). '
To remedy this problem, EPA is today
amending its hazardous waste
management regulations to enable
certain facilities located in States with
final authorization to obtain a federally-
issued RCRA permit during the time
preceding the State's authorization for
" those new standards. EPA is also today
clarifying the applicability of new
permit standards in States with Phase II
interim authorization.
The Agency expects that this
amendment will result in savings to the
regulated community by enabling new
facilities subject to these post-
authorization standards to obtain a
RCRA permit and begin operation
before the State adopts equivalent new
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Federal Register / Vol. 47, No. 143 / Monday. July 26, 1982 / Rules and Regulations 32383
standards. New facilities are expected
to operate with a higher level of
environmental protection than older,
more conventional facilities. Therefore,
this amendment will have a positive
environmental impact by allowing these
new facilities to obtain RCRA permits
sooner than they would otherwise be
able.
DATES: Effective date: January 26,1983.
Comment date: EPA will accept public
comment on this amendment until
September 24,1982.
ADDRESS: Comments should be'sent to
the Docket Clerk (Docket 3004—
Additions to federal regulations after
state authorization), Office of Solid
Waste (WH-562), Washington, D.C.
20400.
FOR FURTHER INFORMATION CONTACT:
Terrance Grogan, Office of Solid Waste
(WH-563), U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, D.C. 20460, (202) 382-2224;
or the RCRA Hotline toll-free at (800)
424-9346 or in Washington, D.C. at 382-
3000.
SUPPLEMENTARY INFORMATION:
I. Background
On February 26,1980, and May 19,
1980, EPA published regulations
pursuant to the Resource Conservation
and Recovery Act of 1976, as amended
(RCRA), establishing the first phase of a
comprehensive program for the handling
and management of hazardous waste (45
FR 33068-33285, now codified in 40 CFR
Parts 260-265). These regulations
require, among other things, that
facilities which treat, store, or dispose of
hazardous waste must obtain a permit
from EPA or an authorized State. The
permit must be based on standards
promulgated by EPA hi 40 CFR Part 264.J
Section 3006 of RCRA allows a State
which seeks to administer and enforce a
hazardous waste program to obtain
authorization from EPA to run the
program in lieu of the Federal
Government. EPA will authorize a State
if it determines that the State's program
is "equivalent" to and "consistent" with
(in the case of final authorization), or
"substantially equivalent" to (in the
case of interim authorization), the
Federal program. The authorized State
can then issue and enforce permits for
the treatment, storage, or disposal of
hazardous waste, under RCRA.2
'Portions of 40 CFR Part 284 were promulgated on
Muy 19.1000 (45 FR 33154), January 12,1981 (46 FR
1802], and January 23.3981 (45 FR 7067). The major
Hissing piece of the RCRA performance standards
jvas the land disposal regulations, until their
iromulgiillon elsewhere in today's Federal Register.
'States may issue hazardous waste permits under
Slate law in any case, whether or not they are
Authorized under RCRA.
On May 19,1980, EPA promulgated
regulations which spell out in detail,
among other things, the requirements for
States to receive authorization to
administer the RCRA permit program in
lieu of the Federal permit program. (See
45 FR 33377, codified in 40 CFR Part
123).
Elsewhere in today's Federal Register,
EPA is promulgating permitting
standards for land disposal facilities,
which represent the last major piece of
the RCRA hazardous waste program.
However, EPA intends to add permitting
standards for processes not currently
covered by the Part 264 standards. For
example, theTart 264 standards do not
currently cover treatment and storage of
hazardous waste in certain types of
underground tanks; thermal treatment of
hazardous waste hi devices other than
incinerators; or treatment of hazardous
waste by chemical, physical or
biological methods (other than in tanks,
surface impoundments or land treatment
units).
Adding Part 264 permitting standards
to the Federal regulations after States
have obtained final authorization raises
the following problem under the existing
regulations. Section 123.13(e) provides
that State programs approved for final
authorization must make revisions
required by changes to the Federal
RCRA program "within one year of the
date of promulgation of such [new or
modified] regulation, unless a State must
amend or enact a statute in order to
make the required revision in which
case such revisions shall take place
within two years." This language
provides a clear and orderly process for
. maintaining the "equivalence" of State
programs that have received final
authorization. However, there may still
be a one or two year gap between the
time new standards are promulgated by
EPA, and the time that the State adopts
and is authorized for equivalent
standards.
The problem arises when a person
plans to build a new facility (or expand
an existing one) with processes covered
by the new Part 264 standards during
this one or two year period in a State
with final authorization.3 Such a person
could not receive a RCRA permit for
these processes from the authorized
State during this period. This is because
the State's RCRA authorization includes
only those portions "of the Federal.
program for which the State has been
judged to have equivalent and
consistent standards. State programs
cannot operate "in lieu of this new part
of the Federal program until they have
received authorization for those new
Part 264 standards.
In addition, the person could not
receive a federally-issued RCRA permit
if he or she is located in a State with
final authorization, because § 264.1(f) as
currently worded provides that the
requirements of Part 264 do not apply to
a person who treats, stores or disposes
of hazardous waste in a State with a
RCRA hazardous waste program
authorized under Part 123.4 (This
provision was originally promulgated on
the assumption that by the time of final
authorization, Part 264 standards would
be in place for all categories of
facilities.)
The owner or operator of a new
facility could therefore face a period of
time in which he cannot obtain a RCRA
permit from either the authorized State
or the Federal government. This
effectively places a ban on the operation
(and, in some cases, construction) of the
facility. EPA did not intend to impose
this de facto ban, and believes it is
undesirable. These new facilities may
provide needed additional treatment,
storage, and disposal capacity at a
higher level of environmental protection
than older, more conventional facilities.
The Agency is today amending
§ 264.1(f) to rectify this problem. Under
this amendment, Part 264 will apply to
these facilities until the State receives
final authorization for the new
standards. Facilities subject to these
new standards may therefore obtain a
federally-issued RCRA permit during
that limited period of time. They will not
have to wait until the State in which
they are located adopts equivalent and
consistent standards.
The language of § 264.1(f) is also being
amended to clarify the applicability of
Part 264 in States with Phase II interim
authorization under RCRA § 3006(c).5
This amendment ensures that States
authorized for any of the Phase II
components will operate the RCRA
permit program in lieu of EPA for
facilities covered in their authorized
components. For example, if a facility
conducted incineration of hazardous
wastes, and the facility was located in a
State with interim authorization for
Phase II, Component B (the component
covering incinerators), then it would not
s Facilities in existence on November 19,1980,
may qualify for interim status when the new
standards are promulgated. See Section 3005(e) of
RCRA and 40 CFR Part 122.22(a).
* Part 264 does currently apply to underground
injection, if the authorized State program does not
cover it. See 40 CFR § 264.1(f).
5 For a discussion of Phase II interim
authorization, see amendments to Part 123 '
published on January 26,1981,46 FR 8298, and the
announcement of Phase II Component C elsewhere
in today's Federal Register.
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32384 Federal Register / Vol. 47. No. 143 / Monday, July 26. 1982 / Rules' and Regulations
be subject to Part 264. arid the State's
"substantially equivalent" standards
would operate in lieu of the Federal
standards.
However, Part 264 will apply to the
permitting of new processes (e.g.,
underground tanks) added to the
coverage of Part 264 after the
announcement of Component C. Since
Component C is the last Phase II
component, interim authorization would
not be available for permitting these
new processes. EPA would retain
permitting responsibility for such new
processes in States with interim
authorization, since the processes would
not be included in the State's
authorization for Phase II. States would
receive authorization to operate the
RCRA permit program in lieu of EPA for
such new processes as part of final
authorization, under the provisions in
i 123.13(e) described above.
EPA requests comments on the
approach taken in this amendment for
both final and interim authorization. In
particular, comments are solicited on
alternatives to Federal permit issuance
in authorized States during the period
between addition of new RCRA permit
standards and State authorization for
equivalent and consistent standards.
II. Interim Final Promulgation
EPA believes that the use of advance
notice and comment procedures for this
amendment to the applicability section
of 40 CFR Part 264 would be
impracticable and contrary to the public
interest, and therefore finds that good
cause exists for adopting this change in
interim final form (see 5 U.S.C.
§ 553(b)(B)).
This amendment is designed to make
the language of § 264.1(f) consistent with
the Agency's original intent in
promulgating that section. EPA never
intended a situation where a facility
could not obtain a RCRA permit from
either EPA or an authorized State after
the appropriate Part 264 standards were
promulgated. The current language of
§ 264.1(f) was based on the assumption
that Part 264 standards would be in
place for all categories of facilities by
the time of final authorization. However,
this did not happen, and thus certain
new facilities could face a temporary
ban on operation (and, in some cases,
construction) in States with final
authorization due to current regulatory
language. Today's amendment rectifies
this situation by allowing continued
operation of the RCRA permitting
process, as originally intended.
This interim final amendment will
take effect in six months, at the same
time that final authorization can take
effect. This timing ensures that the
RCRA permitting process will not be
disrupted in States with final
authorization.
EPA will accept comments on this
amendment for 60 days, and will make >
any further changes deemed necessary
as a result of those comments.
III. Executive Order 12291
Under Executive Order 12291, (46 FR
12193, February 19,1981), EPA must
judge whether a regulation is ''Major"
and therefore subject to 'the requirement
of a Regulatory Impact Analysis. A
major rule is defined as a regulation
which is likely to result in:
• An annual effect on the economy of
$100 million or more;
• A major increase hi costs or prices
for consumers, individual industries,
Federal, State or local government
agencies or geographic regions; or
* Significant adverse effects on
competition, employment, investment,
productivity, innovation or on the ability
of United States-based enterprises to
compete with foreign-based enterprises
in domestic or export markets.
This regulation is not major because it
will not result in an effect on the
economy of $100 million or more nor will
it result in a major increase in costs or
prices to consumers, industry or
government entities. There will be no
adverse impact on the ability of the U.S.
based enterprises to compete with
foreign based enterprises in domestic or
export markets. Because this
amendment is not a major regulation, no
Regulatory Impact Analysis is being
prepared^
This amendment was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
IV. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. § 601 et seq., whenever an
agency is required to publish a
rulemaking, it must prepare and make
available for public comment a '
regulatory flexibility analysis which
describes the impact of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). No regulatory flexibility
analysis is required, however, if the
head of the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. This amendment will not have a
significant economic impact on a
substantial number of small entities.
Accordingly, I hereby certify that this
regulation, if issued in final form, will
not have a significant economic impact
on a substantial number of small
entities. , •
List of Subjects in 40 CFR Part 264
Hazardous materials. Packaging and
containers, Reporting and recordkeeping
requirements. Security measures, Surety
bonds, Waste treatment and disposal.
Dated: July 9,1982.
Anne M. Gorsuch,
Administrator.
Title 40 CFR Part 264 is amended as
follows:
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
1. The authority citation for Part 264
reads as follows:
Authority: Sees. Ip06, 2002{a), and 3004,
Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, (42
U.S.C. §§6905, 6912(a), and 6924).
2. Section 264.1(f) is revised to read as
• follows:
§ 264.1 Purpose, scope and applicability.
*****
(f) The requirements of this part do
not apply to a person who treats, stores,
or disposes of hazardous waste in a
State with a RCRA hazardous waste
program authorized under Subparts A
and B of Part 123 of this chapter, or in a
State authorized under Subpart F of Part
123 of this chapter for the component or
components of Phase II interim
authorization which correspond to the
person's treatment, storage or disposal
processes; except that this part will
apply:
(1) As stated in paragraph (d) of this
section, if the authorized State RCRA
program does not cover disposal of
hazardous waste by means of
underground injection; and
(2) To a person who treats, stores or
disposes of hazardous waste in a State .
authorized under Subparts A and B of
Part 123 of this chapter, at a facility
which was not covered by standards
under this part when the State obtained
authorization, and for which EPA
promulgates standards under this part
after the State is. authorized. This
paragraph will only apply until the State
is authorized to permit such facilities
under Subparts A and B of Part 123 of
this chapter.
*****
[FR Doc. 82-19470 Filed 7-23-82; 8:45 amj
BILLING CODE 6560-50-M
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Federal Register / Vol. 47, No. 143 / Monday, July 26,1982 / Proposed Rules
32385
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 265
[SWH-FRL 2173-3]
Hazardous Waste Management
System: Interim Status Standards for
Owners and Operators of Hazardous
Waste Treatment, Storage, and
Disposal Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Notice of Proposed Rulemaking.
SUMMARY: Elsewhere in today's Federal
Register the Environmental Protection
Agency is promulgating standards
around which hazardous waste surface
impoundments, waste piles, land
treatment units, and landfills will be
permitted. These rules suggest some
conforming changes to Part 265, the
Interim Status Standards, for
consistency and compatibility. Most of
these are promulgated as part of today's
rulemaking. A few however, potentially
have more impact and could benefit, in
the Agency's view, from additional
public input. For these reasons,the
Agency is proposing the following
conforming changes.
(1) A variance to the two foot
freeboard requirement for surface
impoundments.
(2) Final cover performance
requirements for surface impoundments
and landfills.
(3) An additional variance allowing
placement of some ignitable or reactive
wastes in surface impoundments.
(4) More definitive requirements
respecting placement of containers in
landfills.
DATES: EPA will accept comments on
the proposed rules on or before
November 23,1982.
ADDRESS: Comments should be sent to
Docket Clerk (Docket 3004—Land
Disposal Interim Status Proposal), Office
of Solid Waste (WH-562), U.S.
Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460.
The public docket for this proposed-
rule is located in Room S-269, U.S.
Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C., and is
available for viewing from 9:00 a.m. to
4:00 p.m., Monday through Friday,
excluding holidays.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline at 800-124-9346 (in
Washington, D.C. call 382-3000) or
Rodney Jenkins (202) 382-4658. Office of
Solid Waste (WH-564), U.S.
Environmental Protection Agency,
Washington, D.C. 20460.
SUPPLEMIENTARY INFORMATION:
I. Explanation of the Proposal
Elsewhere in today's Federal Register,
EPA has promulgated regulations
affecting treatment, storage, and
disposal of hazardous wastes in surface
impoundments, waste piles, land
treatment units, and landfills. Those
rules establish standards that must be
met for facilities to receive a permit
under the Resource Conservation and
Recovery Act (RCRA) hazardous waste
regulatory program. Also included are a
series of conforming changes to the
interim status requirements of Part 265,
which were made to provide
consistency and compatibility. There
are, however, a few additional
conforming changes which the Agency
believes should be adopted during
interim status. Because they may have
substantial impact on interim status
operations as well as on the
environment, and because, in most
cases, the public has not had sufficient
opportunity to comment on the
' appropriateness of applying them to the
interim status period, EPA is proposing
these changes today.
A. Surface Impoundments—General
Operating Requirements
Section 265.222 contains the rules
designed to prevent overtopping of
impoundment dikes. The current interim
status regulations require not only that
overtopping not occur but that a
minimum freeboard of two feet be
maintained to ensure it. The Agency
received numerous comments claiming
that the two foot requirement is not
necessary if the performance
requirement to prevent overtopping is in
place. In any event, some claimed, the
two foot minimum might not be suffcient
in some cases.
EPA generally agrees with these
commenters and, in the Part 264
regulations, the Agency requires only
that overtopping be prevented. As with
most Part 264 requirements, this will be
implemented through the permitting
process, when the applicant will
demonstrate that design features and
operating practices at the facility will, in
fact, prevent overtopping. During interim
status, in the absence of Agency review
provided by the permitting process, EPA
has concern that a general performance
requirement, such as "prevent
overtopping", can be adequately self-
implementing or readily enforced.
Therefore, the Agency is proposing
today to expand the two feet minimum
freeboard requirement by allowing a
lesser level if a qualified engineer
certifies that alternate design features or
operating procedures will prevent
overtopping. EPA believes that a
qualified engineer can review design
and operating features and adequately
conclude whether overtopping is
• possible. The owner or operator would
also be required to maintain the
certification and the basis for it at the
facility to facilitate enforcement
inspections. The Agency believes this
approach to be self-implementable and
to provide a degree of protection
equivalent to that of the two foot
minimum.
B. Surface Impoundments—Closure and
Post-Closure Care
The current interim status
requirements allow surface
impoundments to be closed by digging
up remaining wastes and contaminated
liners, equipment, and surrounding soils.
Alternately, the owner or operator may
solidify liquids and apply a final cover
in accordance with the landfill
requirements for closure (§ 265.310).
Also, in the second case, he must carry
out the post-closure care requirements
as if his impoundment were a landfill.
The Agency does not propose to
change this basic approach and, in fact,-
has adopted it as the basis for the Part
264 permitting standards. EPA believes
that the new standards in Part 264 are
more easily understood and that they
are as applicable during interim status
as for permitted facilities. The Agency
further believes the new Part 264 rules
are readily implementable during
interim status as well since the existing
interim status closure and post-closure
care review process is similar to the
review process for closure and post-
closure care plans conducted during the
permitting process. Therefore, the
Agency is proposing to adopt, as interim
status requirements, the new Part 264
closure and post-closure care
requirements for surface impoundments
(§ 264.228) except for some of the post-
closure care requirements. (Interim
status facilities are not required to have
leak detection systems or leachate
management facilities and, thus, the
post-closure requirements of Part 264
respecting them are inappropriate for
interim status facilities.)
The fundamental requirements are not
greatly different than the interim status
requirements promulgated on May 19,
1980. The new requirements proposed
today are, however, much more explicit,
identifying more clearly what is
expected of the final cover. They are
also somewhat more stringent. The
cover must now "minimize" infiltration
instead of simply "controlling" it. It must
not be any more permeable than the
bottom liner to prevent the "bathtub"
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32386
Fef eral Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Proposed Rules
effect. Since the bottom liner may be
highly impermeable, the cap may also
have to be impermeable as well. It must
also accommodate settling and
subsidence. The reasons for these
requirements are discussed at length in
the preamble to the Part 264
requirements promulgated today
elsewhere in this issue of the Federal
Register.
The proposed interim status post-
closure care requirements also contain
' some differences from those now in
place. The new provisions require that
erosion from precipitation be prevented.
This requirement is appropriate for
interim status just as it is for permitted
units. The current interim status
provisions relating to leachate collection
systems, gas collection systems,
maintenance of benchmarks, and
restriction of access would be dropped
as inappropriate under this Proposal, the
first three because surface
impoundments are not required to have
such equipment, and the last because it
is redundant to § 265.117(b).
C. Surface Impoundments—Ignitable or
Reactive Waste
The existing limitations on placing
ignitable or reactive waste in surface
impoundments allow the practice only if
placing the waste in the impoundment
results in the waste not being ignitable
or reactive any more; or the ;
impoundment is used solely for
emergencies. The new Part 264
requirements allow use of
impoundments for ignitable or reactive
waste if the waste is protected from
conditions that could cause it to ignite or
react. EPA doesn't expect this variance
to be used much, but concedes that
protection against carelessly thrown
matches and from certain reactions may
be practical. Since the management
methods providing protection can be
reviewed during permitting, EPA agrees
that the new variance provides
additional flexibility to the owner or
operator without sacrificing human
health or environmental protection.
Adoption of the same variance during
interim status, however, is fraught with
the^same enforcement and self-
implementation problems as adoption of
the freeboard variance discussed in
Section A. The Agency proposes to
circumvent these difficulties by using'
the same approach proposed for the
freeboard variance, namely that the
owner or operator obtain certification .
from a qualified chemist or engineer that
the design features of this facility or the
operating practices employed will
prevent ignition or reaction. EPA
expects that a qualified engineer or
chemist can evaluate the operation and
adequately determine that it is safe.
Enforcement of the rule can adequately
be carried out by comparing the basis
for the certification kept at the facility
against actual practice.
D. Landfills—Closure and Post-Closure
Care
The Part 264 Subpart N requirements
for closure and post-closure care
promulgated today elsewhere hi this
Federal Register, are being proposed
here hi modified form for adoption as
interim status rules. As discussed in
Section B of this preamble for surface
impoundments, the new rules are clearer
and more explicit. Because of this, they
should be more easily implemented
during interim status than the existing
rules.
The interim status closure and post-
closure requirements in place now are
very general in nature, requiring that
owners or operators develop a plan to
"control" infiltration based on
consideration of certain factors. The
new requirements are more specific and
are more stringent. Covers must be
designed to "minimize" infiltration
instead of simply "controlling" it. They
must also allow no more precipitation to
pass through than would the bottom
liner to prevent the "bathtub effect".
Additionally, the cover must
accommodate settling and subsidence.
These provisions are as applicable to
landfills which close under interim
status as they are to permitted landfills.
The post-closure care requirements
for interim status units adopted today
are somewhat different than those
adopted hi Part 264. The Part 264
provisions include some requirements
relating to unit components (e.g., leachate
collection and treatment systems) which
are not required during interim status.
Post-closure care provisions affecting
these systems would, therefore, be
inappropriate.
E. Landfills—Special Requirements for
Containers
The current interim status
requirements mandate that empty
containers be crushed flat prior to
placement hi the landfill. The purpose of
this requirement is to minimize
subsidence due to empty containers.
Collapse of empty containers is thought
to be a leading cause of differential
subsidence which hi turn poses a
serious threat to the continuity and
proper functioning of the final cover.
Commenters on this provision made
three basic points:
(1) Small containers should be
exempted,
(2) Provide guidance on when a
container is empty (or full) for purposes
of this rule, and
(3) Provide guidance on how much
crushing and shredding is necessary to
comply.
The agency agrees with all of these
points, and, hi the Part 264 requirements
promulgated today, has accommodated
points (1) and (2). The rationale for the
various provisions is discussed in the
Preamble to that issuance. EPA believes
those provisions respond to the
commenters requests with regard to
interim status but wishes to propose
them to obtain added comment;
The Agency is not yet able to provide
more specific general guidance at
present on how much shredding or
crushing is necessary to comply with the
rule. EPA believes that crushing
sufficiently to produce a void space of
10 percent or less of the volume
originally present should adequately
minimize differential subsidence. The
Agency is not absolutely certain,
however, that shredding and crushing
equipment can actualy achieve that
level. In the Preamble to the Part 264
promulgation, EPA has asked for data
and may propose a change at a later
time.
II. Classification
The regulations proposed today are
Interim Status Part 265 conforming
changes to the Part 264 permitting
standards promulgated elsewhere in
today's Federal Register. Considering
the magnitude of the costs and impacts
of the promulgated regulations, the
Agency does not believe these proposed
requirements will result hi an annual
effect on the economy of $100 million or
more; a major increase hi costs or prices
for consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or hi domestic
or export markets. Therefore, EPA does
not expect today's proposed rule to be
subject to the major rule provisions of
Executive Order 12291 and, therefore,
does not believe that a regulatory
impact analysis is necessary.
The proposed rules might-have a
significant impact on small entities,
however, thereby triggering the
requirements of the Regulatory
Flexibility Act. As part of the Regulatory
Flexibility Analysis being conducted for
the Part 264 permitting regulations
promulgated today, EPA will consider
the impact of these proposed rules on
small entities. The results of that
analysis will be available for review.
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Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Proposed Rules
32387
prior to any action to finalize these
proposed rules. In performing this
analysis EPA will determine in more
detail the costs to the economy of the
proposal and, if necessary, perform a
regulatory impact analysis.
The certification requirements of
proposed §§ 265.222(b) and 265.229(b)
are subject to the OMB clearance
requirements of the Paperwork
Reduction Act, of 1980.
This proposal was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291 and the Paperwork Reduction Act.
III. Request for Comment
EPA invites comments on all aspects
of the proposed rule. All comments
should be addressed to the Docket Clerk
(see Addresses above) and should •
prominently bear the notation: "Docket
3004—Land Disposal Interim Status
Proposal". All comments should contain
specific documentation in their support.
Lists of Subjects in 40 CFR 265
Hazardous materials, Packaging and
containers, Reporting and record-
keeping requirement, Security measures,
Surety bonds, Waste treatment and
disposal, Water supply.
Dated: July 9,1982.
Anna M. Gorsuch,
Administrator.
For the reasons set out in the
preamble, Part 265, Subparts K and N, of
Title 40 of the Code of Federal _
Regulations are proposed to be amended
as follows.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
• DISPOSAL FACILITIES
1. The authority citation for Part 265
reads as follows:
Authority: Sections 1006, 2002(a), and 3004
of the Solid Waste Disposal Act, as amended
by the Resource Conservation and Recovery
Act of 1976, as amended (42 U.S.C. 6905,
e912(u), and 6924).
2. In 40 CFR 265, Subpart K,
§§265.222, 285.228, and 265.229 are
revised to read as follows:
§ 265.222 Genera] operating requirements.
(a) A surface impoundment must
maintain enough freeboard to prevent
any overtopping of the dike by
overfilling, wave action, or a storm.
There must be at least 60 centimeters
(two feet) of freeboard.
(b) A freeboard level less than 60
cimtimeters (two feet) may be
maintained if the owner or operator
obtains certification by a qualified
engineer that alternate design features
or operating plans will, to the best of his
knowledge and opinion, prevent
overtopping of the dike. The
certification, along with,a written
identification of alternate design
features or operating plans preventing
overtopping, must be maintained at the
facility.
§ 265.228 Closure and post-closure care.
(a) At closure, the owner or operator
must:
(1) Remove or decontaminate all
waste residues, contaminated
containment system components (liners,
etc.), contaminated subsoils, and
structures and equipment contaminated
with waste and leachate, and manage
them as hazardous waste unless
§ 261.3(d) of this chapter applies; or
(2)(i) Eliminate free liquids by
removing liquid wastes or solidifying the
remaining wastes and waste residues;
(ii) Stabilize remaining wastes to a
bearing capacity sufficient to support
final cover; and
(iii) Cover the surface impoundment
with a final cover designed :and
constructed to:
(A) Provide long-term minimization of
the migration of liquids through the
closed impoundment;
(B) Function with minimum
maintenance;
(C) Promote drainage and minimize
erosion or abrasion of the cover;
(D) Accommodate settling and
subsidence so that the;cover's integrity
is maintained; and
(E) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) In addition to the requirements of
§ 265.117, during the post-closure care
period, the owner or operator of a
surface impoundment in which wastes
remain after closure in accordance with
the provisions of paragraph (a)(2) of this
section must:
(1) Maintain the integrity and
effectiveness of the final cover,
including making repairs to the cover as
necessary to correct the effects of
settling, subsidence, erosion, or other
events;
(2) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this part; and
(3) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover.
§ 265.229 Special requirements for
ingnitable or reactive waste.
Ignitable or reactive waste must not
be placed in a surface impoundment,
unless:
(a) The waste is treated, rendered, or
mixed before or immediately after
placement in the impoundment so that:
(1) The resulting waste, mixture, or
dissolution of material no longer meets
the definition of ignitable or reactive
waste under §§ 26i'.21 or 261.23 of this
chapter; and
(2) Section 265.17(b) is complied with;
or
(b)(l) The waste is managed in such a
way that it is protected from any
material or conditions which may cause
it to ignite or react; and
(2) The owner or operator obtains a
certification from a qualified chemist or
engineer that, to the best of his
knowledge and opinion, the design
features or operating plans of the facility
will prevent ignition or reaction; and
(3) The certification and the basis for
it are maintained at the facility; or
(c) The surface impoundment is used
solely for emergencies.
3. In 40 CFR 265, Subpart N, §§ 265.310
and 265.315 are revised to read as
follows:
§ 265.310 Closure and post-closure care.
(a) At final closure of the landfill or
upon closure of any cell, the owner or
operator must cover the landfill or cell
with a final cover designed and
constructed to:
(1) Provide long-term minimization of
migration of liquids through the closed
landfill;
(2) Function with minimum
maintenance;
(3) Promote drainage and miminmize
erosion or abrasion of the cover;
(4) Accommodate settling and
subsidence so that the cover's integrity
is maintained; and
(5) Have a permeability less than or
equal to the permeability of any bottom
liner system or natural subsoils present.
(b) After final closure, the owner or
operator must comply with all post-
closure requirements contained in
§§ 265.117-265.120 including
maintenance and monitoring throughout
the post-closure care period. The owner
or operator must:
(1) Maintain the integrity and
effectiveness of the final cover,
including making repairs to the cover as
necessary to correct the effects of
settling, subsidence, erosion, or other
events.
(2) Maintain and monitor the ground-
water monitoring system and comply
with all other applicable requirements of
Subpart F of this part;
(3) Prevent run-on and run-off from
eroding or otherwise damaging the final
cover; and
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32388
Federal Register / Vol. 47, No. 143 / Monday, July 26, 1982 / Proposed Rules
(4) Protect and maintain surveyed
benchmarks used in complying with
§ 265.309.
§ 265.315 Special requirements for
containers.
Unless they are very small, such as an
ampule, containers must be either:
(a) At least 90 percent full when
placed in the landfill; or
(b) Crushed, shredded, or similarly
reduced in volume to the maximum
practical extent before burial in the
landfill.
[PR Doc. 82-19472 Filed 7-23-82; 8:45 (lm|
BILLING CODE 6560-50-M
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United States
Environmental Protection
Agency
Official Business
Penalty for Private Use
$300
Special Fourth-Class Rate
Book
Postage-and Fees Paid
EPA '
Permit No. G-35
Washington DC 20460
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