Thursday
March 19, 1987
Part II
Environmental
Protection Agency
•• **^ SF
40 CFR Part 265
fntorlm Status Standards for Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities; Final Rule
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Federal Register / Vol. 52. No. 53 / Thursday. March 19. 1987 / Rules and Regulation.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 265
[SW-FRL-3092-1]
Interim Status Standards for Owners
and Operators of Hazardous Wast*
Treatment, Storage, and Disposal
Facilities; Final Rule
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection
Acency is today amending the interim
status regulations for closing and
providing postclosure care for
hazardous waste surface impoundments
(40 CFR Part 265, Subpart K), under the
Resource Conservation and Recovery
Act (RCRA).
The Agency proposed today's
modifications to the interim status
standards on July 26.1982. Today's
amendments provide conformance
between certain interim status
requirements for surface impoundments
and those requirements contained in the
permitting rules of 40 CFR Part 264, that
were also published on July 26,1982.
The Agency is also setting forth its
interpretation of the regulatory
requirements applying to closure of
storage facilities regulated under both
permits and interim status.
EFFECTIVE DATE: These final regulations
become effective on September 15,1987,
which is six months from the date of
promulgation, as RCRA section 3010(b)
requires.
ADDRESS: The docket for this
rulemaking (Docket No. F-87-CCF-
FFFFF) is located in Room MLGlOO, U.S.
Environmental Protection Agency, 401M
Street. SW., Washington, DC and is
available for viewing from 9:00 a.m. to
3:30 p.m., Monday through Friday,
excluding holidays. Call Mia Zmud at
475-9327 for appointments.
FOR FURTHER INFORMATION CONTACT:
RCRA hotline at (800) 424-8346 (in
Washington. DC. Call 382-3000) or for
technical information contact Ossi
Meyn. Office of Solid Waste (WH-
565E). U 3. Environmental Protection
Agency. Washington. DC 20460,
telephone (202) 382-4654.
SUPPLEMENTARY INFORMATION:
I. Authority
These regulations are issued under the
authority of sections 1008.2002(a). 3004
and 3005 of the Solid Waste Disposal
Act (SWDA), as amended by the
Resource Conservation and Recovery
Act (RCRA) of 1978. as amended (42
U.S.C 6905, 6912(a). 6924, and 6925).
II. Background
Subtitle C of RCRA creates a "cradle-
to-grave" management system intended
to ensure that hazardous waste is safely
treated, stored, or disposed. First,
Subtitle C requires the Agency 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
the Agency established under section
3004 of RCRA that "may be necessary to
protect human health and the
environment." Ultimately, these
standards will be implemented
exclusively through permits issued to
owners and operators by authorized
States or the Agency. However, until
these permits are issued, existing
facilities are controlled under the
interim status regulations of 40 CFR Part
265 that were largely promulgated on
May 19.1980. Under RCRA interim
status, the owner or operator of a
facility may operate without a permit ifi
(1) It existed on November 19.1980, (or
it existed on the effective date of
statutory or regulatory changes under
RCRA that render the facility subject to
the requirements to have a permit under
section 3005); (2) he has complied with
the notification requirements of section
3010 of RCRA; (3) he applied for a
permit (Part A application) in
accordance with section 3005 of RCRA.
Interim status is retained until the
regulatory agency makes a formal
decision to issue or deny the permit or
until the facility loses its interim status
by statute for failure to submit Part B
permit application and/or certification
of compliance with applicable ground-
water monitoring and financial
assurance requirements.
In regulations promulgated on July 28,
1982. [40 CFR Part 264. 47 FR 32274], the
Agency established permitting
standards in 40 CFR Part 264 covering
the treatment, storage, and 'disposal of
hazardous wastes in surface
impoundments, waste piles, land
treatment units, and landfills. Owners
and operators of such facilities must
meet these standards to receive RCRA
permits. Also included in the Federal '
Register on that date were a series of
changes to the interim status
requirements of Part 265. which were
promulgated to ensure consistency with
the new Part 264 standards. There were.
however, a few additional Part 265
conforming changes that the Agency
believed should first be proposed for
public comment because, in most cases,
the public had not had sufficient
opportunity to comment on the
appropriateness of applying them during
the interim status period. Many of the
changes that were proposed on July 26.
1982. were promulgated in final
regulations on April 23,1985 (50 FR
16044). Today, the Agency is making
final the remaining changes to the
surface impoundment closure and post-
closure care requirements (§ 265.228)
that were proposed on July 26,1982.
ID. Discussion of Today's Amendments
The Part 284 rules issued on July 28,
1982, for surface impoundment closure
and post-closure care (§f 264.228 and
264.310) are in many ways similar to the
interim status requirements (5 § 265.228
and 285.310). The Part 264 closure rules,
however, contain more specific
performance standards to assure
adequate protection of human health
and the environment For reasons "
discussed below, the Agency believes
the more explicit Part 264 closure rules
should also be implemented during
interim status. Moreover. EPA believes
that the closure process is adequate to
apply these closure requirements. The
existing review process for interim
status closure and post-closure care
plans will provide an opportunity for the
Agency to review the specifics of the
plans for compliance with the closure
performance standards. Thus, any
problems with misinterpretation of the
closure requirements by the owner or
operator would be identified and
rectified prior to actual closure. In fact,
the review process for closure and post-
closure care plans during interim status
is similar to the review process of
closure and post-closure care plans
conducted during the permitting process.
Therefore, the Agency believes that
these closure requirements are capable
of being properly implemented during
interim status.
The § 265.228 closure rules proposed
on July 26.1982, and promulgated today,
retain the basic format of existing
regulations by allowing owners and
operators to choose between removing
hazardous wastes and waste residues
(and terminating responsibility for the
unit) or retaining wastes and managing
the unit as a landfill. (An additional
choice for closure is proposed elsewhere
in today's Federal Register.) The
requirements for both choices are made
more specific in today's amendments.
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if the owner or operator chooses not
to remove or decontaminate the waste
and waste residues, then the rules
promulgated today provide that the
owner or operator must: (1) Eliminate
free liquids by either removing them
from the impoundment or solidifying
them. (2) stabilize the remaining waste
and waste residues to support a final
cover. (3) install a final cover to provide
long-term minimization of infiltration
into the closed impoundment, and (4)
perform post-closure care and ground-
water monitoring.
The Part 265 regulations promulgated
today (like the existing Part 264
regulations for permitted units) allow
owners and operators of surface
impoundments to remove or
decontaminate wastes to avoid capping
and post-closure care requirements
(§ 265.228(a){l)). They must remove or
decontaminate all wastes, waste
residues, contaminated containment
system components (e.g., contaminated
portions of liners), contaminated
subsoils, and structures and equipment
contaminated with waste and leachate.
AH removed residues, subsoils, and
equipment must b« managed as
hazardous waste unless there is
compliance with the delisting provisions
of 5 281.3(d). (Similar Part 265 closure
and post-closure care rules for waste
piles were promulgated on July 28,1982.)
The new requirements for closure by
removal differ significantly from the
previous Part 265 requirements in one
respect. The previous interim status
requirement in § 265.228(b) required
owners or operators to remove all waste
residuals and contaminated soil or to
demonstrate, using the procedures in
§ 261.3 (cj and (d), that the materials
remaining at any stage of the removal
were no longer a hazardous waste. Once
an owner or operator made a successful
demonstration under § 261.3 (c) and (d).
(sinei could discontinue removal and
certify closure.
Under § 261.3 (c) and (d). materials
contaminated with listed waste (as
evidenced by the presence of Appendix
yill constituents) are hazardous waste
by definition unless the material is
delisted. Material* contaminated with
characteristic wastes, however, are only
hazardous wastes to the extent that the
material itself exhibits a characteristic.
Thss to meet the old closure by removal
standard, owners or operators of
characteristic waste impoundments had
mli 'f ?5S0nstrate that *e remaining
material did not exhibit the
characteristic that first brought the
impoundment under regulatory control.
This demonstration, however
arguably allowed significant and
potentially harmful levels of hazardous
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8703
constituents (i.e.. those contained in
Appendix VIII of Part 261) tOTemain in
surface impoundment units without
subjecting the units to landfill closure.
post-closure care, or monitoring
requirements.
For example, the previous version of
the rule allowed residues from waste
that originally exhibited the
characteristic of extraction procedure
(EPJ toxicity to remain in place at "clean
closure" if the residue was no longer EP
toxic. This could allow an
environmentally significant quantity of
hazardous constituents to remain at a
facility site that will receive no further
monitoring or management. While EP
toxic criterion would preclude only a
concentration that exceeds 100 times the
drinking water standard, constituents
may remain at levels significantly above
the drinking water standards. If such
constituents are close to the saturated
zone, they may contaminate ground
water at levels exceeding the ground-
water protection standard. Furthermore.
the waste residues may contain
significant and potentially harmful
levels of other hazardous constituents
(listed in Appendix VIII of Part 281) that
are not found through EP testing. Hence,
the language "or demonstrate what
remains is no longer a hazardous waste-
has been dropped from the interim
status regulations because it is
inconsistent with the overall closure
performance standard requiring units to
close in a manner that eliminates or
minimizes the post-closure escape of
Appendix VIII constituents.
Making this conforming change
ensures that no Appendix VIII
constituent presents any threat to
human health and the environment. This
is also consistent with several of the
new requirements added by the
Hazardous and Solid Waste
Amendments of 1984. For example, new
section 3004(u) of PCRA requires
corrective action for releases not only of
hazardous wastes, but also hazardous
constituents. Similarly, section 3001(f)
requires the Agency to consider, when
evaluating waste delisting petitions, all
hazardous constituents found in the
waste, not just those for which the
waste was listed as hazardous. Finally
new section 3005(i) requires owners and
operators of landfills, surface
impoundments, waste piles, or land
treatment units that qualify for interim
status and receive waste after July 26
1982, to meet the ground-water
monitoring and corrective action
standards found in Subpart F to 40 CFR
Part 284. These regulations also require
owners and operators to monitor and
clean up the full range of Appendix VIII
constituents found in a waste.
The question has also arisen during
the implementation of previous closured
by removal whether § 265.228 requires
consideration of potential ground-water
contamination in addition to soil
contamination. The answer to this
question is yes. The c'osure by removal
requirements in | 265 228 (a}(i) and (b)
require removal or decontamination (i.e
Hushing, pumping/tre.iting the aquifer)
ot underlying and surrounding
contaminated soils." Since
contamination of both saturated and
unsaturated soils may threaten human
health or the environment, the Agency
interprets the term "soil" broadly to
include both unsaturated soils and soils
containing ground water. Thus the
closure by removal standard requires
consideration of both saturated and
unsaturated soils. Uncontaminated
ground water is. therefore, a
requirement for "clean closure" under
Part 285 (and Part 264) as revised today
as well as under the previous regulation.
The one comment received on the
proposed !J 265.228 surface
impoundment closure and post-closure
care requirements for "clean closure"
argued that clay liners shouhi be
allowed to remain in place at closure
even if they are contaminated because
their excavation is expensive and
hazardous to workers removing the
waste. EPA disagrees. While excavation
may be expensive, the additional cost of
removing the liner will usually be small
in comparison to the cost of removing
the waste. Therefore, if an owner or
operator is willing to expend the
resources to remove the waste, it is not
unduly burdensome to go one step
further and remove the liner. This
burden is justified by the benefit of
removing contamination from the
impoundment. (See discussion below.) If
extensive excavation is needed, thereby
considerably increasing the cost of
removal, it is generally because
extensive contamination of the clay and
underlying soils has occurred. In these
cases, it may be cheaper to install a
proper final cover and perform post-
closure care rather than remove the
contamination. In addition, we do not
believe that removal of the liner will be
any more hazardous to workern than is
the removal of the waste. With proper
safety procedures, removal of the waste
and liner should not pose an undue
hazard to workers.
EPA's Interpretation of the "Remove or
Decontaminate " Standard
The sole commenter on the proposed
rule also suggested that, in addition to
the cas« where all wastes, residues, and
contaminated liners and soils are
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J-ederal Register / Vol. 52. No. 53 / Thursday. March 19. 1987 / RqJes and Regulations
removed, no final cover should be
required where the type and quantity of
waste in the liner can be shown.to pose
no public health or environmental
threat. This comment touches upon an
issue that has arisen in other contexts.
'hat is: What is the necessary extent of
emoval or decontamination of wastes,
waste residues, contaminated liners,
and soils (including contaminated
ground water) to avoid the landfill
closure and post-closure care
requirements under both Parts 264 and
265 regulations? The issue concerning
how much removal or decontamination
of wastes and waste residues is
necessary to protect human health and
the environment is relevant in a broad
range of regulatory contexts currently
being examined by the Agency including
closure and corrective actions under
RCRA and response actions under the
Comprehensive Environmental
Response Compensation and Liability
Act (CERCLA) programs.
The removal and decontamination
issue arises directly from differences in
regulatory strategy between disposal
and storage. A storage unit holds wastes
temporarily, and the wastes are
eventually removed for treatment or
disposal elsewhere. The goal at closure
is to leave no materials at the storage
site that require further care. In contrast.
a disposal unit, by definition, is closed
with wastes and residues remaining at
. the site. The goal at closure is to assure
'hat these remaining wastes and
sidues are managed in a manner that
..rotects human health and the
environment. There is no need for post-
closure oversight of storage units since
all potentially harmful wastes and
contaminated materials are removed.
This is not true for disposal units: hence,
the Agency has promulgated regulations
requiring post-closure care for disposal
units. (For further discussions on a
proposed alternative closure option, see *
the preamble to proposed §| 264.310 and
265.310 elsewhere in today's Federal
Register).
To assist the reader, we describe
below EPA's interpretation of the
"remove and decontaminate" language
in §§ 264.228 and 265.228. i.e. we
describe the amount of removal or
decontamination that obviates the need
for post-closure care for both interim
status and permitted surface
impoundment units. With regard to
storage units regulated under both Parts
264 and 265. the Agency interprets the
terms "remove" and "decontaminate" to
mean removal of all wastes and liners.
and the removal of leachate and
materials contaminated with the waste
or leachate (including ground water)
that pose a substantial present or
potential threat to human health or the
environment. The Agency recognizes
that at certain sites limited quantities of
hazardous constituents rpight remain in
the subsoil anityet present.pnly
insignificant risks to huihan health and
the environment. Because regulations
for storage facilities require no further
post-closure care, the Agency must be
certain that no hazardous constituents
remain that could harm human health or
the environment (now or in the future).
To provide the necessary level of
assurance, the Agency will require
owners or operators to remove all
wastes and contaminated liners and to
demonstrate that any hazardous
constituents left in the subsoils will not
cause unacceptable risks to human
health or the environment. The Agency
will review site-specific demonstrations
submitted by facility owners and
operators that document that enough
removal and decontamination has
occurred so that no further action is
necessary. Owners or operators wishing
to avail themselves of the site-specific
removal option must include in their
closure plans specific details of how
they expect to make the demonstration.
including sampling protocols, schedules.
and the exposure level that is intended
to be used as a standard for assessing
whether removal or decontamination is
achieved (see discussion below). The
Agency is presently developing a
guidance document explaining the
technical requirements for achieving a
"clean closure-". This guidance
document should be available in draft
form by January 1987. In the meantime,
the following discussion presents the
framework for the demonstration
procedure.
The closure demonstrations submitted
by facility owners and operators must
document that the contaminants left in
the subsoils will not impact any
environmental media including ground
water, surface water, or the atmosphere
in excess of Agency-recommended
limits or factors, and that direct contact
through dermal exposure, inhalation, or
ingestion will not result in a threat to
human health or the environment.
Agency recommended limits or factors
are those that have undergone peer
review by the Agency. At the present
time these include water quality
standards and criteria (Ambient Water
Quality Criteria 45 FR 79318, November
28.1980:49 FR 5831. February 15.1984;
50 FR 30784. July 29.1985). health-based
limits based on verified reference doses
(RfDs) developed by the Agency's Risk
Assessment Forum (Verified Reference
Doses of USEPA. ECAO-CIN-475,
January 1986J and Carcinogenic Potencv
Factors (CPF) developed by the
Agency's Carcinogen Assessment Group
(Table 9-11. Health Assessment
Document for Tetrachloroethylene
(Perchloroethylene) USEPA. OHEA/600/
8-62/005F, July 1985) to be used to
determine exposure at a given risk, or
site-specific Agency-approved public
health advisories issued by the Agency
for Toxic Substance and Disease
Registry of the Center for Disease
Control. Department of Health and
Human Services.
The Aqency is currently compiling
toxicity information on many of the
hazardous constituents contained in
Appendix VIII to Part 261. The facility
owner and operators should check with
the Office of Solid Waste,
Characterization and Assessment
Division. Technical Assessment Branch
(202) 382-4761 for the latest toxicity
information. However, for some
hazardous constituents, formally
recommended exposure limits do not yet
exist. If no Agency recommended
exposure limits exist for a hazardous
constituent then the owner or operator
must either remove the constituent "
down to background levels, submit data
of sufficient quality for the Agency-to
determine the environmental and health
effects of the constituent, or follow
landfill closure and post-closure
requirements. Data submitted by the
owner or operator on environmental and
health effects ofa constituent should.
when possible, follow the toxicity
testing guidelines of 40 CFR Parts 797
and 798 (50 FR 39252, September 27,
1985). The Agency does not believe
there are many situations where
developing exposure levels will be a
realistic option for owners and
operators because the testing required
by 40 CFR Parts 797 and 798 to produce
reliable toxicity estimates is expensive
and time-consuming.
The Agency believes it is necessary to
present policy on the appropriate point
of exposure for the various pathways of
exposure in order to provide some
national consistency in dealing with the
potential impacts of the release of
hazardous constituents from closing
units. The following point of exposure
was chosen because the Agency
believes it represents a realistic and at
the same time reasonably conservative
estimate of where either environmental
or human receptors could be exposed to
the contaminants released from the unit.
For the purpose of making a closure by
removal demonstration, the potential
point of exposure to hazardous waste
constituents is assumed to be directly at
or within the unit boundary for all
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Federal Register / Vol. 52. No. 53 / Thursday. March 19. 1987 / R..IP,andRegulation,
routes of exposure (surface-water
contact, ground-water ingestion.
inhalation, and direct contact). Potential
exposure at or within the unit boundary
must be assumed because no further
oversight or monitoring of the unit is
required if the unit is closed by removal.
(Recall that the land overlying a unit
that closes by removal may be
transferred and developed freely
without giving notice of its prior use.)
Therefore, no attenuation of the
hazardous waste constituents leaching
from the waste residues can be
presumed to occur before the
constituents reach exposure points.
This approach differs from the
existing "delisting procedure" developed
in response to the requirements of
§§ 261.3 (c) and (d). 260.20. and 260.22.
As discussed previously, the "clean
closure" approach is based on the
premise that, after closure by removal is
satisfied, no further management control
over the waste (or unit) is necessary. In
contrast, delisted solid waste remains
subject to the regulatory controls
promulgated by the Agency under
Subtitle D of RCRA. Subtitle D contains
performance criteria for the
management of non-hazardous waste.
Although the Agency is currently
assessing whether more specific Federal
regulatory requirements are needed for
waste management under Subtitle D.
most states have already adopted
specific regulatory requirements for
Subtitle O waste management.
Therefore, even though a waste may be
delisted its management continues to be
controlled. In contrast closure by
removal will not be followed by any
regulatory controls: hence, an
environmentally conservative approach
is needed to assure no further risk to
human health and the environment.
Therefore, unlike the current "delisting
procedure" that la based on a generic
process that only considers the ground-
water route of exposure, the
demonstration procedure discussed here
is waste-specific and site-specific,
considers all potential exposure
pathways, and aisumei no attenuation.
The demonstration should be
conservative in th«.sense that it
eliminates the uncertainties associated
with contaminant fate and transport.
tocusing on the waste contaminant-
levels and contaminant characteristics.
Therefore, arguments relying on fate and
transport calculations will not be
accepted. The Agency is pursuing this
relatively conservative approach at this
time because we are confident that it
will be protective of human health and
the environment. After a few years of
experience with "clean closure"
demonstrations, the Agency may decide
that a less stringent approach is
sufficiently reliable to assure that
closures based on such analyses are
fully protective of human health and the
environment. At that time, the Agency
may change its position on the use of
fate and transport arguments for "clean
closure" demonstrations. (Elsewhere in
today's Federal Register, the Agency is
proposing a third closure option that
would incorporate fate and transport
factors. However, unlike the closure by
removal option, that option would
require closure to be followed by
verification monitoring to verify the fate
and transport predictions and assume
that the closure protects human health
and the environment.)
To make the demonstration with
respect to the direct contact pathway,
owners or operators must demonstrate
that contaminant levels in soil are less
than levels established by the Agency as
acceptable for ingestion or dermal
contact. Total waste constituent levels
in soil should be used for this analysis.
Arguments based on exposure control
measures such as fencing or capping
will not be acceptable since the long-
term future use of the property cannot
be reliably controlled and hence the
long-term effectiveness of these
measures is uncertain.
To make the demonstration with
respect to the ground-water pathway,
owners or operators must remove
enough contaminated soil and saturated
subsoils (i.e.. ground water) to
demonstrate that constituent levels in
ground water do not exceed Agency-
established chronic health levels (based
on Rfd or CPF values) and that residual
contaminant levels remaining in the soil
will not contribute to any future
contamination of ground water. (Note:
this demonstration may in some cases
require constituent-specific ground
water data beyond that required by
!§ 265.90 through 2165.100). The
demonstration related to residual soil
contamination levels must show that
levels of constituents found in leachate
from the residual soil contamination are
not above Agency-established exposure
levels. Levels of constituents in leachate
may be estimated based on known
characteristics of the waste constituents
(e.g., solubility and partitioning
coefficients) or determined by the
results of actual soil leaching tests. The
Agency is exploring the appropriateness
of using the extraction procedures (but
not the acceptable contaminant levels)
found in the Toxicity Characteristics
Leaching Procedure (TCLP), Federal
Register of January 14.1985 (51 FR 1690).
The current EP Toxicity leaching
procedure is insufficient for this
demonstration because it does not -
capture the organic constituents in the
waste.
The analysis of potential air
exposures should assess contaminants
migrating from the soils into the
atmosphere. The demonstration should
include emission calculations, available
monitoring data, and safe inhalation
levels based on Agency-established
exposure levels.
The potential surface water exposure
analysis should compare Agency-
established water quality standards and
criteria (45 FR 79318. November 28.
1980) with the levels of constituents that
may leach from the residual
contaminated soil. Tests described
previously should be used to estimate
the level of constituents in the leachate.
The surface water exposure analysis
should also consider existing surface
water contaminant concentrations.
IV. Stata Authority
A. Applicability of Rules in Authorized
States
Under section 3008 of RCRA. EPA
may authorize qualified^tates to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorization, the Agency
retains enforcement authority under
sections 3008, 7003 and 3013 of RCRA.
although authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA). a
State with final authorization
administered its hazardous waste
program entirely in lieu of the Federal
program. The Federal requirements no
longer applied in the authorized State.
and the Agency could not issue permits
for any facilities in a State where the
State was authorized to permit. When
new, more stringent Federal
requirements were promulgated or
enacted, the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State adopted
the requirements as State law.
In contrast, under section 3006(g) of
RCRA. 42 U.S.C. 6926(g). new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect in nonauthorized States. The
Agency is directed to carry out those
requirements and prohibitions in
authorized States, including the issuance
of permits, until the State is granted
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Federal Register / Vol. 52. No. 53 / Thursday. March 19. 1987 / Rule3 and Regulations
authorization to do so. While States
must still adopt HSWA-related
provisions as State law to retain final
authorization, the HSWA applies in
authorized States in the interim.
D. Effect on State Authorization
Today's rule promulgates standards
that are not effective in authorized
States since the requirements are not
being imposed pursuant to Hazardous
and Solid Waste Amendments of 1984.
Thus, the requirements will be
applicable only in those States that do
not have final authorization. In
authorized States, the requirements will
not be applicable until the State revises
its program to adopt equivalent
requirements under State law.
40 CFR 271.21(e){2) requires that
States that have final authorization must
modify their programs to reflect Federal
program changes and must subsequently
submit the modification to EPA for
approval. The deadline by which the
State must modify its program to adopt
today's rule is July 1988. These
deadlines can be extended in
exceptional cases (40 CFR 271.21(e)(3)).
Once EPA approves the revision, the
State requirements become Subtitle C
RCRA requirements.
States with authorized RCRA
programs may already have
requirements similar to those in today's
rule. These State requirements have not
been assessed against the Federal
regulations being promulgated today to
determine whether they meet the tests
for authorization. Thus, a State is not
authorized to carry out these
.requirements in lieu of the Agency until
the State requirements are approved. Of
course. States with existing standard*
may continue to administer and enforce
their standards as a matter of State law.
States that submit official applications
for final authorization less than 12
months after the effective date of these
standards are not required to include
standards equivalent to these standards
in their application. However, the State
must modify its program by the
deadlines set forth in i 271.21(e). States
that submit official applications for final
authorization 12 months after the
effective date of those standards must
include standards equivalent to these
standards in their application. 40 CFR
271.3 sets forth the requirements a State
must meet when submitting its final
authorization application.
V. Effective Date
Pursuant to section 3O10(b) of RCRA.
today's amendments will be effective
six months after promulgation.
VI. Regulatory Impact
Under Executive Order 12291, the
Agency must judge whether a regulation
is "major" and. therefore, subject to the
requirement of; a Regulatory Impact
Analysis. As. stated inijhe proposed rule
on July 26,1982, the Agency does not
believe these conforming changes will
result in an annual effect on the
economy of $100 million or more; a
major increase in 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 in domestic
or export markets. In addition, the Part
265 conforming changes do not impose
any requirements beyond those required
for permitting facilities under Part 264.
Therefore, the Agency believes that
today's rule is not a major rule under
Executive Order 12291.
This regulation was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
vn. Regulatory Flexibility Act
Under the Regulatory Flexibility Act,
(5 U.S.C. 601 et seq.). the Agency must
prepare a regulatory flexibility analysis
for all regulations that may have a
significant impact on a substantial
number of small entities. The Agency
conducted such an analysis on the land
disposal regulations and published a
summary of the results in the Federal
Register. Vol. 48, No. 15 on January 21.
1983. Today's conforming regulation
does not impose significant additional
burdens. In addition, they do not impose
any requirements beyond those required
for permitting facilities under Part 284.
VUL Paperwork Reduction Act
The certification requirements
contained in this rule have been
approved by the Office of Management
and Budget (OMB) under the provisions
of the Paperwork Reduction Act of 1980,
44 U.S.C. 3501 et seq. and have been
assigned OMB control number 2050-
0008.
Liot of Subjects in 49 CFR Part 265
Hazardous materials. Packaging and
containers, Reporting and recordkeeping
requirements, Security measures. Surety
bonds, Waste treatment and disposal.
Water supply.
Dated: March 8, 1987.
Lee M. Thongs,
Administrator.
For the reasons set out in the
preamble. Part 285, Subpart K of Title 40
of the Code of Federal Regulations is
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
continues to read as follows:
Authority: Sees. 1008. 2002(a). 3004. and
3005 of the Solid Waate Disposal Act. as
amended by the Resource Conservation and
Recovery Act of 1978. as amended (42 U.S.C.
8905. 6912(a). 6924. and 8925).
2. In 40 CFR Part 265, Subpart K.
§ 265.228 is revised to read as follows:
§ 265.228 Closure and post-ctosure 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
S 261.3(d) of this chapter applies; or
(2) Close the impoundment and
provide post-closure care for a landfill
under Subpart G and $ 265.310. -
including the following:
(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
the final coven 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 coven
(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
Subpart G. and § 285.310, during the
post-closure care period, the owner or
operator of a surface impoundment in
which wastes, waste residues, or
contaminated materials 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
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necessary to correct the effscis of
settling, subsidence, erosion, or other
events:
(2) Maintain dnd monitor the ground-
water monitoring system and comply
with dli other applicable requirements of
Subpart F of this part: and
(3) Prevent run-on and run-off from
eroding or otherxvise damaging the final
cover.
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