Friday
May 29, 1987
Part 111
Department of
Energy
Federal Energy Regulatory Commission
18 CFR Parts 2 and 380
Regulations Implementing the National
Environmental Policy Act of 1969; Notice
of Proposed Rulemaking
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Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules 20311
chronological order by date of
publication:
5 271.1 Purpose and scope.
TABLE 1.—REGULATIONS IMPLEMENTING THE
HAZARDOUS AND SOLID WASTE AMEND-
MENTS OF 1984
Promulga-
Ttttaol
Federal
Effective data
'M
(tntert Uner
daMol and
pubica- Leak Feder-
bonl, Detec- tl
Don Regis-
Rule, ter
Page
Num-
bers).
.'J
52 FR There are three (3)
[Insert effective dates
corresponding to
various provisions of
the proposal, i.e. 6
months, 12 months.
and 24 months after
pubfcabon of the
final rale. The
specific provisions
are listed below with
their corresponding
effective dates:
{ 264.15 (6X1) and
0>X4)—12 months.
{264.19 and
{264.20—12 months.
{264.73(bX6)-8
{264.117(aXD(ii)-«
months.
{264.118 0>X1) and
(b)(2H>>-6 months.
{ 264.221 (c) and
(I)— 24 months.
{264221 (g), (h).(i).
months.
{ 264.222- 8 months.
{284.223—12
months.
{ 264226 (c).(d),
and (e) — 6 months.
{ 264228tb)(4)— 6
months.
{ 264251 (a). (c).(d),
(e). (0. (g). (h). (i). -fl
{26S.117(aX1X8)-6
{265.118 (cX1) and
-6 months.
{ 265.221 (O.(g).(h).
(i). and ffl—6 months.
9265222—8 months.
} 265.224—12
months.
{ 285226 (b) and
(c>-6 months.
{ 265254 (a), (b). (c).
(-24
rnofittn.
{ 270.18 (CM1X9 and
(cH1X»)-24 months.
{270.18(eX1Xi)-8
5 270.10 (cH2).(cM3).
(cX4). (CX5). (cM8).
and (d)— 24 mentis.
{27020(0 and (k)—
5270.21 (bMUfl). and
(bX1X">- 24 months.
{27021(bX1X»)-«
5270.2(b«2>, (bK3).
(bX4).(bX5).(bX6).
and (c>—24 month*.
|270.41(i)—12
months.
[FR Doc. 87-11416 Filed 5-28-87; 8:45 am]
BILLING CODE «5«0-SO-«
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20314
Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Parts 2 and 380
[Docket No. RM87-15-000]
Regulations Implementing the National
Environmental Policy Act of 1969
May 14,1987. '
AGENCY: Federal Energy Regulatory
Commission, DOE.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Federal Energy
Regulatory Commission is proposing to
revise its regulations that govern the
collection, evaluation, and
dissemination of environmental
information. The proposed regulations
would replace and elaborate on existing
Commission regulations under the
National Environmental Policy Act of
1969 (NEPA). 42 U.S.C. 4321-4347, and
adopt many of the NEPA regulations
promulgated by the Council on
Environmental Quality, 40 CFR Parts
1500-1508, as amended.
DATE: Written comments on this
proposed rule must be filed with the
Commission by July 28,1987.
ADDRESS: Office of the Secretary,
Federal Energy Regulatory Commission,
825 North Capitol Street, ME..
Washington, DC 20428.
FOR FURTHER INFORMATION CONTACT:
Lynn S. Lichtenstein, 825 North Capitol
St. NE., Washington, DC 20428, (202)
357-8530.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Federal Energy Regulatory
Commission (Commission) proposes to
revise its regulations that govern the
collection, evaluation, and
dissemination of environmental
information about Commission actions,
including any actions relating to non-
Federal projects within the
Commission's jurisdiction, as provided
in the Department of Energy
Organization Act, Natural Gas Act,
Federal Power Act, the Public Utility
Regulatory Policies Act of 1978, the
Natural Gas Policy Act of 1978, and the
Interstate Commerce Act. The proposed
regulations would replace and elaborate
on existing Commission regulations
under the National Environmental Policy
Act of 1969 (NEPA). 42 U.S.C. 4321-4347,
and adopt many of the NEPA
regulations promulgated by the Council
on Environmental Quality, 40 CFR Parts
1500-1508, as amended.
II. Background
Section 102(2)(C) of NEPA provides in
part that all Federal agencies must
include in every recommendation or
report on proposals for legislation and
other major Federal actions significantly
affecting the quality of the human
environment, a detailed statement on—
(i) The environmental impact of the
proposed action;
(ii) Any adverse environmental effects
which cannot be avoided should the
proposal be implemented;
(iii) Alternatives to the proposed
action;
(iv) The relationship between local
short-term uses of man's environment
and the maintenance and enhancement
of long-term productivity; and
(v) Any irreversible and irretrievable
commitment of resources which would
be involved in the proposed action
should it be implemented.
Section 102(2) of NEPA also requires
that if agency planning and
decisionmaking may affect the human
environment, the agency should utilize a
systematic, interdisciplinary approach
to the natural and social sciences and
the environmental design arts to protect
unqualified environmental amenities.
NEPA also requires that an agency
consult with other Federal agencies with
jurisdiction by law or special expertise
when preparing an environmental
statement, now commonly know* as an
Environmental Impact Statement
On December 16,1972, the Federal
Power Commission, predecessor to the
Federal Energy Regulatory Commission.
issued Order No. 415-C to comply with
the NEPA mandate that Federal
agencies preserve the natural, cultural.
historic, aesthetic, and biologic
environments by requiring calculation
and reporting of the probable
environmental impact of Federal actions
and programs and by prescribing any
available means for preventing or
mitigating environmental damage. This
order was codified at 18 CFR 2.80
through 2.82. Appendices to these
sections described information to be
supplied by applicants.
On November 29,1978, the Council on
Environmental Quality (CEQ) published
in the Federal Register its regulations
implementing section 102(2) of the
NEPA, 40 CFR Part 1500-1508. The CEQ
regulations consist of processes for
agency cooperation in researching and
solving environmental problems and
provide methods of writing
Environmental Impact Statements and '
Environmental Assessments, receiving
comments, developing records of
decision, and handling information.
The Commission issued a Notice of
Proposed Rulemaking in RM 79-69-000
on August 20,1979.l The Commission
proposed to adopt by reference many
CEQ provisions and set forth detailed
procedures to implement and elaborate
on the policies and procedures of the
CEQ. Since that time, there have been
many changes in Commission
regulations, such as the advent of
blanket certificate applications in the
gas area. In addition, new statutes have
been added to those the Commission
administers such as the Natural Gas
Policy Act of 1978 and the Electric
Consumer Protection Act of 1986.
Overall, however, Commission practice
in the years since the NOPR was issued
has essentially coincided with the
procedures set forth in the CEQ
regulations.
As the Commission's procedures for
environmental analysis have largely
followed these provisions, the
Commission believes it desirable to
continue and broaden the approach it
took in its original proposal. Thus, the
^Commission here again proposes to
"adopt or implement most of the CEQ
regulations. At the same time, it is also
proposing provisions that will in effect
modify or clarify some of those
regulations in tailoring them to the
Commission's proceedings. These
provisions have to do with specific
Commission practices such as its
hearing process.
The Commission is reproposing the
regulation rather than issuing it as a
final rule due to the lapse of time and
the changes in Commission jurisdiction
since the NOPR was published.
Interested persons should have another
opportunity to comment in view of these
changes and with the benefit of the eight
additional years of experience with
Commission implementation of NEPA.
1!L Discussion
1. General
in 1979, in its original proposal, the
Commission proposed to adopt the bulk
of the regulations issued by CEQ to
implement § 102(2) of the National
Environmental Policy Act Most of the
deviation* from the CEQ regulations
concerned "form more than substance."
44 FR 50052, 50054 (August 27,1979).
With the benefit of its experience since
that proposal, the Commission now
again proposes to follow the same
approach, that is, adopting most of the
CEQ provisions, with some
modifications and additions designed to
144 HI UBte (August 27,1979). The Commission
b praposfag to terminate this docket and
tacnporate the record in docket RM 87-15-000.
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20316
Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
Commission believes that major paper
work would not be increased by the
currently proposed regulations as most
of the information they require or
reference must be submitted under
current procedures.
Several comments dealt with the
Commission's method of adopting the
CEQ regulations. One commenter stated
that the incorporation of several
sections of the CEQ regulations by
reference was confusing, was
redundant, and would result in
contradictions. For example, many of
the adopted sections referred to
provisions that were not proposed for
adoption. The Commission agrees and
has revised the proposed regulation to
avoid this problem. The sections that
are adopted, implemented, and modified
are specifically stated. References to
sections not adopted have been
removed. For further clarity, the
Commission intends to recodify the
sections of the CEQ regulations it is
adopting in the final rule. In the event
that it does so, references to "agencies"
throughout those regulations will be
replaced by "the Commission" or "the
agency."
Another commenter stated that the
proposed regulations violated CEQ
mandates not to paraphrase CEQ
regulations, to use the same sequence of
procedures as CEQ, not to quote CEQ
verbatim, and to cross-reference
relevant sections to the CEQ
regulations. The Commission believes
that the regulations, as reproposed here,
no longer involve paraphrasing and
verbatim quotation. Most are simply
adopted, and the remaining portions
either implement specific CEQ
regulations or provide for particular
Commission practices. Where
appropriate, these sections are cross-
referenced to CEQ regulations.
It wa» suggested that the Commission
create separate provisions for each
category of action within its jurisdiction,
which provisions would specify when
the NEPA process begins and describe
each decision point die nature of what
is decided at each decision point and
what data and analysis ia required at •
each point Since Commission "actions"
under NEPA involve primarily
regulatory decision* on numerous,
diverse applications by non-Federal
entities, it was felt that implementation •
of this proposal would necessitate an
extremely lengthy and complex set of
regulations. The reproposed rale thus
deals with these issues genetically.
Proposed § 380.7 identifies decision
points that are relevant for most actions
within Commission jurisdiction. Other
portions of the CEQ regulations also
describe the NEPA process, especially
40 CFR 1508.10, which states when
decisions on proposals may be made.
A number of comments focused on
various aspects of the NEPA process.
One commenter suggested that the
initial notice of a filed application
contain staffs recommendation on the
need for an EA or EIS. The usual
environmental analysis needs are now
proposed in §5 380.4-360.6. Where a
particular action requires a level of
environmental analysis different from
that generally provided for that type of
action, more time may be needed to
make that determination.
One commenter questioned whether
proposed \ 3d.l2(b)(2), stating that staff
would determine whether a particular
action required an EA or EIS, was
consistent with the general category of
environmental review in which that type
of action had been placed. Although this
language has been eliminated from the
current proposal, the Commission does
not believe these provisions are
inconsistent Even though certain types
of actions have been proposed for
inclusion in the categorical exclusion
class because they usually have minimal
or no effect the Commission or staff
may determine that a particular case
may be a major Federal action
significantly affecting the human
environment and that the applicant
should therefore file an ER. The staff
may also determine, based on an ER or
other information, that an action that
usually requires only an EA will, in that
instance, necessitate preparation of an
EIS. Conversely, an action that would
usually require an EIS under the . .
proposed rule may exhibit
characteristics that suggest it might not
be a major Federal action. This would
warrant preparation of an EA to
ascertain the real need for an EIS for-
mat action.
While the arrangement of all actions
into three general classes of review
under SS 380.4.380.5, and 380.6 would
give applicants some guidance useful in
estimating processing time for
applications and would reduce the
burden on the Commission of preparing
environmental documents for certain
actions, it would not relieve the •
CommiMion of the responsibility of
evaluating projects to decide whether -•
they may have significant environmental
effects; Moreover, the requirements of
the Endangered Speder Act the
National Historic Preservation Act and
the Coastal Zone Management Act end
other statutes are separate from NEPA
requirements and must still be •
addressed for categorically excluded
projects. Therefore, the Commission has
added clarifying wording to the original
proposal (in section 3d.l2(a){l))
identifying the applicant's responsibility
to supply the staff with the information
necessary to discharge the
Commission's responsibilities under
NEPA. (Proposed § 360.8(a](2).) The
Commission and staff would evaluate
all information submitted and the
actions proposed in accordance with
S 380.6(b) to confirm that the level of
environmental analysis was
appropriate.
One commenter requested that the
rulemaking define "major Federal action
significantly affecting the quality of the
human environment!' The elements of
that term of art are contained in the
CEQ regulations that are now proposed
to be adopted by the Commission. (See
40 CFR 1508.14.1508.18, and 150&27.J
One commenter indicated its support
for Commission use of a "third party
contractor" procedure for EIS's, such as
that utilized by the EPA (See 40 CFR
6.510{b)(3)(1986)). Under such a
procedure, a contractor selected and
approved by the agency is authorized to
prepare a one-step EIS without the
customary preparation of an ER by the
applicant Such a procedure, is
authorized under 40 CFR 1506.5(c). The
Commission has used it occasionally
and may do so in the future.
2, Environmental Decisionmaking
a. Agency Consideration of
Environmental .Issues
The proposed regulations implement
S § 1505.1(bHe) and 1502.9(c)(3) of the
CEQ regulations. Section 380.7 would
commit the Commission to addressing
environmental considerations at
appropriate major decision points in its
decisionmaking processes. It pledges
that relevant environmental documents
will accompany a proposal through
wilUwpartof
and will
agency review procesi
the record in rulwnaki
accompany proposed rules. The ,.
documents may also be admissible in
evidenceJn triil4ypep4ttceedings. .
Finally. Jtatates that alternatives
considered by the Commission will
include alternative* described in the
environmental document
matt deddffwhW»«e»*fo|eet i» a major
Federal action stoni&cantly affecting the-
quality of the human environment The
time required to prepare anEA may--
very considerably, depending on me
sufficiency of the initial application and "
the complexity of me-project or action
proposed. The CEQ regulations do not
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Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules
^^"'^'^•''••^•'^••^•••••••••^•••••••••••••••i^B^Ba^^l^^l^jJ,^^^^^^,^
require specific deadlines with respect
to this kind of NEPA decision.
The Commission proposes to adopt
§ 1505.2 of the CEQ regulations, Record
of decision in cases requiring
environmental impact statement, with
one modification. The record of
decision, both for applications to the
Commission and issuance of rules, is a
Commission Order. Pursuant to § 1505.2
(a) and (b), an order memorializing a
decision for which an EIS is required
would contain a statement of the
decision and identify the alternatives
considered, specifying the one or ones
considered to be environmentally
preferable and the factors balanced in
making the decision. In addition, the
order would state whether all
practicable means to avoid or minimize
environmental harm from the
alternatives chosen had been adopted
and, if not. why not Finally, the
Commission may include a monitoring
and enforcement program in the order
for any mitigation. (40 CFR 1505.2(c} as
modified by proposed S 380.3(b).)
The Commission believes that the
requirements of § 1505.2 could be
satisfied by either including relevant
sections of the EIS in its order or
incorporating them by reference in the
order. The Commission notes that this is
in keeping with CEQ regulations that
encourage combining environmental
documents with agency documents and
the use of incorporation by reference to
reduce paperwork and delay. {40 CFR
1500.4,1500.5. and 1506.4.)
b. Prohibition Against Actions
The original proposal stated that the
Commission would not undertake or
permit any step which would have an
adverse environmental impact or restrict
the choice of reasonable alternatives
until the EA/HS process is completed
and a decision issued. The intent and
language of § 1508.1 of the CEQ
regulations, here proposed for adoption,
is the same.
In accordance with 11506.1 of the
CEQ regulations, the prevnosly
proposed rule prohibited any steps
toward completion of a proposed action
which could either foreclose viable
alternative* to the proposed action or
cause an adverse environmental impact
until the EA/EIS process was concluded.
(See53d.l2(aM2HviJ.)
One comnaenter contended that the
Commission has no authority to declare
unlawful acts that an otherwise lawfnL
The Commission conki disapprove an
application that proposed to undertake
an action or project within the
Commission's jurisdiction* but
according to the commenter, it was
powerless to prohibit an applicant from
performing nonjurisdictional actions
that might have been in furtherance of
the proposed project The commenter
cites as an example construction
activities adjacent to hydroelectric
project hinds; such activity may
adversely affect the public interest, but
the Commission, it stated, has no
jurisdiction over the activity pursuant to
the Federal Power Act or NEPA.
The Commission can act directly or
indirectly to enjoin or otherwise stop
unauthorized activities directly related
to a project or action within its
jurisdiction. Under section 7{c) of the
Natural Gas Act a natmai fas company
may not inter alia, construct facilities
prior to Commission authorization. The
Commission views the beginning of
construction as any clearing or grading
of potential rights-of-way or sites or
stringing of pipeline. The Commit
may bring an action to enjoin such
activity under section 20 of the NGA or
otherwise seek to enforce compliance
with the Act Under section 23 of the
Federal Power Act it is unlawful for any
person to construct or operate a
hydroelectric project without a license.
The Commission may enjoin these
actions under section 314 of toe FPA or
otherwise seek compliance with the Act
(See also sections 315 and 314 FPA.) In
addition, persons who violate terms or
conditions of licenses, permits, or
exemptions or who do not comply with
Commission rules and regulations aad
certain orders under the Federal Power
Act face civil penalties and, following a
compliance order, revocation. (Electric
Consumer Protection Act of 1986, Pub. L.
99-495. sec. 12.100 Stat 1243.1255-1257
(1986).)
Moreover, since ultimate approval of
the project is the Commission's to give,
any applicant that takes steps to further
an unapproved project or action and in
the process endangers the environment
and contravenes the purposes of NEPA,
does so at its financial peril because the
Commission may withhold or condition
its approval. Any argument made by an
applicant that its project should be
approved because of prior expenditures
of fluids or lesuuims would be
disregarded by the Commission in
making its decision on the merits of me
proposal. Thus, a step taken by an
applicant toward completion of a
proposed action may affect the
treatment givuu flw relevant certificate
or license appocatfon.
TheComuwsfeadta
seek to prohibit any steps taken in
furtherance of a project before
completion of the EA/BS process, if
such a step mmld affect the
enviremneat adversely or fefedestt any
reasonable aHetnative. It tan proposes
20317
to adopt the CEQ regulation at 40 CFR
1506.1.
Another commenter expressed a
desire to be able to take steps that'the
commenter believed would have no
environmental impact, regardless of the
alternatives that may be foreclosed.
contingent on a favorable Commission
decision on the application. The
Commission believes that any postitiva
steps in furtherance of an action that
foreclose alternatives are in derogation
of the NEPA process since no action is
also an alternative. The Commission
may be unable to prohibit all steps from
proceeding in conjunction with
environmental review but as noted
above, without Commission
authorization an applicant may be
facing enforcement actions and putting
its investment at risk.
Two commenting utilities requested
that the Commission's regulations
expand on § 15018 of fee CEQ
regulation* concerning cooperating
agencies in order to permit sach
agencies to Make final derisions on a
project conditioned on the later
development of a final EIS by the lead
agency. Section 1501:0 encoazage* '
interagency cooperation, and te
Commission again proposes to fetiow
these CEQ procedure*. The CEQ
provwon* do not permit action* to be
approved and embarked upon by any
agency or party until tiie NEPA process
isjonipirted. Itt* principle, completion
of the process prior to final approval, is
of central importance to the falfUhnent
of the NEPA mandate. The Coamigsion
declines, therefore, to follow these
commenten' suggestions.
c. Timing of Decisions
The Coaanfcsion proposes here to
adopt 40 CFR 1SOS.10. Tfaia section
specifies ariitiawai tine periods for
decisions on proposed actions—00 days
after pab&catkm of notice of a draft EIS
and 30 days after pabBcatfen of notice
of a fine! BS. The 38 day time period
may be waived m ruiemaking and a
decision OB a final rule mey be
published slmultauiiomlj with the
notice of availabiify of an FEES, m
addition, outer tins provision. H»
CGIBHMBiOll CMUd Pmn»u nOQCS Ol
avaiabBfty of a final EIS at me time it
iseaes its Intel decision m tne
application ftseif in eases where the
right to a rehearing is aJfuiiled the
public, that is. in cases involving
appications. 49 CFR 15«.10fb). The
timing provMens, 13d.lS(i) and Q) in
the original version, were tne same
except that they did not alow decisions
and notices of Has*» for applications to
be issued simultaneously.
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20318
Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
One commenter proposed that the
time limits of § 1506.10 of the CEQ
regulations, now proposed to be
adopted, which prescribe a minimum '
amount of time that the Commission
may allow between the preparation of
certain documents and the ultimate
Commission decision on the project or
action, should also represent the
maximum time period. The time limits
provided hi that section conform to
existing Commission procedures and, of
course, the CEQ regulations. These
timing provisions are designed to afford
the public a minimum period during
which it can avail itself of review and
comment. They are not designed to be
time limits on environmental analysis.
d. Application Denials
The Commission has addressed the
circumstances in which applications are
not granted in several sections of the
proposed regulations. First, an
application may be rejected or
dismissed. The Commission may reject
or dismiss an application for a number
of reasons, including failure to comply
with Commission rules and regulations,
failure to provide sufficient information,
and failure to prosecute the application
in a timely manner. The Commission
believes that in these cases, its actions
are merely procedural. It is functioning
to keep business before it moving in an
orderly manner rather than making
substantive decisions regarding projects.
Rejection of an application is included
in the Categorical Exclusions category,
proposed § 380.6(a](l). No
environmental review is necessary if an
application is rejected because the
applicant has not placed a bonafide
proposal before the Commission which
merits environmental analysis.
Rejections were included in the
previously proposed Categorical
Exclusions section. § 3d.ll(a)(l).
Second, the Commission may deny an
application after a consideration of the
merits of the application. These
occasions were not addressed in the
previous NOPR. The Commission may
deny an application because of one or
more nonenvironmental factors. For
example, a project may be
uneconomical or unsafe. There would be
no reason to conduct an environmental
review for a project which cannot be
built or maintained due to lack of funds
or unacceptable risks to life or health.
Therefore, if based on a review of the
merits the Commission finds that a
project is not viable, the Commission
believes it may deny the application
without environmental study, as put
forward in proposed § 380.7(e).
The Commission may perform an EA
for a project, either because it is
required in proposed § 380.4 or because
the staff or Commission believe one is
warranted (5 380.6{b)), which shows that
the project will have significant adverse
environmental impacts and that
measures in mitigation are either non-
existent or impractical. In such a
situation, the Commission, if
appropriate, can determine to deny the
proposal on the merits under its
substantive statutory authority. Further
environmental study would be
unwarranted.
The purpose of NEPA and the CEQ
regulations is to examine the
environmental effects of actions and
projects proposed by applicants. In an
application is not approved and a
project is not built, there is no need for
further study. Accordingly, the
Commission is proposing to deny
applications without doing an EIS in
these circumstances because it is not
required. "A court may only order
[preparation of an EIS] if it finds that the
project may have a significant effect on
the human environment" Fritiofson v.
Alexander. 772 F.2d 1225,1248 (5th Cir.
1985). (See also, Cabinet Mountains/.
Scotchman's Peak Grizzly Bears v.
Peterson, 885 F.2d 678,682 (D.C. Cir.
1982). "NEPA's EIS requirement is
governed by the rule of reason... and
an EIS must be prepared only when
significant environmental impacts will
occur as a result of the proposed
action." If the proposal is disapproved
based on an EA, an EIS should not be
performed because there will be no
significant effects on the environment
since the status, quo is not changed.
However, if the Commission does
perform an EA which shows that a
project would have significant adverse
environmental effects, but the
Commission has not determined to
disapprove the project, an EIS would be
prepared.
In the record of decision (Commission
order), the Commission will provide its
reasons for its determination not to do
an EIS. The Commission believes that
performing an EA and providing its
conclusions on the record, satisfies the
requirements of NEPA. Rhone-Poulenc, .
/ho. etc. v. F.D.A., 639 F.2d 750,754-755
(D.C. Cir. 1980).
Of course, any decision made by the
Commission or its designee on an
application must be supported by
substantial evidence. (Section 313(a),
Federal Power Act and section 19(0),
Natural Gas Act) Thus, Commission
orders and decisions in matters set for
hearing must be based on evidence
which will meet this standard. The
Commission believes that an EA. even
without an EIS, may in appropriate
circumstances constitute substantial
evidence sufficient to meet the
requirements of the Federal Power Act
and the Natural Gas Act The
Commission may grant an application
after performing an EA if the EA shows
that there would be m/significant
adverse environmental impact In like
manner, the Commission may deny an.
application on the basis of an EA which
showed there would be significant
adverse environmental impact from the
proposed project
If the Commission denies an
application without performing an EA
and the denial may result in a change in
the status quo, it will examine whether
or not the environmental effects will be
significant If, upon examination of ther
effects of a denial where the status quo
is changed, the Commission believes
that the denial would not have
significant effects, it will set forth the
factual considerations underlying its
conclusion. Arizona Public Service
Company v. Federal Power Commission,
490 F.2d 783, 783-785 (D.C. Cir. 1974).
3. Environmental Information
In accordance with the CEQ
regulations (§ 1508.5(a)) proposed '
i 380.8 sets forth, either directly or by
reference, the types of environmental
information that would have to be
supplied by applicants. The type of
information varies with the scope and
complexity of the project If an EA or
EIS is required for a proposed action or
project, a non-Federal applicant must '
submit an Environmental Report (ER).
The Commission also proposes in
S 380.8(a)(3). that environmental
information may be required for projects
that do not normally require an EA or an
EIS and are not included in § 380.6(a)
(24) or (28). In addition, applicants could
be required under 8 38O8(b) to conduct
studies which would be necessary or
relevant to determine the impact of their
proposal and would be required to
consult with government agencies
during the planning stages of the
proposed action.
Current Appendi* A has served an
increasingly limited role as the
Commission has revised its hydropower
project licensing procedures to vary the
ER requirements according to the type of
project application. Specific ER
requirements for these projects can now
be found in Part 4 of this chapter. Thte
Appendix would that be eliminated.
Appendix B, which would be •
transferred'to thirput from existing
Part 2 of the regulations and retitled
Appendix A. would now apply to all gas
projects for which- an EA or EIS would
be done except prior notice filings under
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Federal Register / Vol. 52. No. 103 /Friday. May 29. 1987 / Proposed Rules
20319
§ 157.208. The revised Appendix B
would no longer permit "abbreviated
reports" under which an applicant could
show its project has no significant
environmental effect and thus avoid
filing a report. The previous proposal
contained almost identical provisions
except that it also retained current
Appendix A.
As stated above, the existing NEPA
provisions in Part 2 of the Commission's
regulations contain two appendices
detailing the format of an applicant's ER
to the Commission, one each for
hydroelectric and gas projects. Nine
commenters favored retention of the so-
called "abbreviated reports" in those
appendices because they permit
applicants for Commission authorization
to make a showing that a proposed
action will not have a significant
environmental impact. Such a showing.
if accepted by the Commission, would
theroretically terminate any further
environmental review of the action.
Commenters reasoned that elimination
of this provision would increase the
burden on utilities and add to
processing delays at the Commission.
Commission staff would still have the
ability, it was argued, to determine the
sufficiency of the applicant's argument.
The Commission does not believe that
the abbreviated reports formerly
permitted in Appendices A and B are
commensurate with the purposes of the'
proposed new NEPA regulations. The
Commission prefers that the
environmental information submitted by
any applicant conform to the
requirements that pertain to the type of
project for which authorization is sought
and that that information be evaluated
by its staff. (Appendix A has, in any
event, been superseded by the ER
requirements in Part 4 of this chapter.)
The Commission, therefore, again
proposes to revoke the abbreviated
report provisions now contained in
Appendices A and B.
One commenter argued that proposed
§ 3d.l2(c), content of an ER for specific
proposals, now 5 380.8(c)(l), required
some reorganization, primarily to
establish less burdensome
environmental reporting requirements
for various post-licensing actions
relating to water power projects. ER
requirements for hydropower projects
are now quite specific. Applicants for
the amendment or surrender of a license
are now subject to the ER requirements
of 18 CFR 4.201 (b) and (c). Where
amendments involve a new facility with
a total installed capacity of 1.5 MW or
less or a constructed facility with a total
installed capacity of 5 MW or less, only
a short-form ER pursuant to § 4.61(d) is
required. The commenter contended that
an applicant should be permitted to
tailor a simplified ER to suit the
proposed action. The Commission
believes that the short-form ER in
§ 4.61{d) achieves this purpose. As
previously stated, every ER should be
commensurate with the scope of the
proposed action.
According to one comment, the ER
provisions for amendments to a license
(§ 3d.l2(c)(l)(iii)) did not make clear
which type of ER should be submitted
for such amendments as sales and
leases of land or grants of easements
solely for telephone lines, pipelines, or
recreation facilities. The Commission's
experience indicates that use of project
lands for such purposes will normally
have so little environmental impact that
no ER is necessary. A categorical
exclusion, S 380.6(a](19), has been added
to describe a variety of authorized uses
of project lands that would not require
an EA or EIS under the reproposed
regulations.
The ER requirements for all projects
proposed pursuant to section 7 of the
Natural Gas Act (formerly applicable
only to section 7(c)), currently Appendix
B, contain information requests which,
in the opinion of one commenter, would
not coincide with the proposed EIS
format and would not otherwise lead to
better decisionmaking. The Commission
now proposes to use the EIS format
shown in proposed 9 380.9, which is the
format contained in the CEQ regulation
at 40 CFR 1502.10 with some
modifications. The information
requested in Appendix B in the
provision entitled "Components to an
Environmental Report" is relevant and
important to the preparation of an EIS.
The requirements in Appendix B can
provide much of the data on which the
judgments and assessments of an EIS
must be based. The information that
would be provided under Appendix B
for natural gas projects would be used in
the preparation of each relevant EIS and
EA. (Appendix B would become
Appendix A in this proposal.)
Several commenters stated that the
provision, now proposed, at § 380.8(b)(2),
which required aiv applicant to make
"any" studies that staff considers
necessary or relevant to determine the
environmental impact of the proposal,
was too vague and open-ended.
Commenters requested a definition or
description of the studies that may be
required under this provision. The
Commission staff currently has this
authority under 18 CFR 2.82, Appendix B
to 2.82, and 157.14(b). The Commission
believes the staff needs latitude to
determine what additional information
that is not contained in an application is
necessary for a sound decision on
environmental issues. Because there are
innumerable site-specific variables, the
Commission believes it is not possible to
provide a comprehensive definition or
description of such studies.
The commenter also requested
establishment of a firm deadline for
requesting further environmental
studies. The Commission staff is
encouraged to act expeditiously to
obtain all necessary information that
may not be provided in an initial
application. The Commission believes,
however, the time at which data
requests are sent to applicants for
environmental studies or other
necessary information may vary,
depending on the nature or complexity
of the application and the workload of
the Commission staff. It would thus be
difficult to establish hard and fast
deadlines.
All commenters agreed that the
studies requested by the staff must be
necesary and relevant to the
environmental determinations. Two
commenters indicated that the
consultation requirements (now in
proposed S 380.8(b)(3)) were unrealistic
and burdensome. It was argued that
applicants cannot identify all
environmental impacts before
submitting an application, even with the
assistance of Federal, state, and local
agencies. The commenters contended
that the consultation process would
delay applications and result in poor
quality work, partly because agencies
would not act or respond to consultation
requests until an application has
actually been filed with the Commission.
The Commission believes that pre-
application consultation by applicants
on environmental issues greatly
facilitates both the processing of the
application and the consultation
required of the Commission under
section 102(2)(C) of NEPA. Revisions in
the Commission's hydropower project
regulations, for example, provide for
such pre-application consultation. (See,
for example, 18 CFR 4.38.) Another
example is that applicants for new
licenses under section 15 of the-Federal.
Power Act are required to consult with
fish and wildlife agencies two years
before expiration of an existing license.
(Electric Consumer Protection Act of
1988, Pub. L. No. 99-495, section 4,100
Stat. 1243,1248 (1986).)
Such requirements permit the
applicant to summarize its attempts to
consult with an agency if it proves
impossible to obtain advice from the
agency within a reasonable time.
Proposed S 380.8(b)(3) would not impose
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1967 / Proposed Rules
any procedural requirements for
consultation; nor does it mandate that
an applicant wait indefinitely until an
agency acts before submitting an
application. The provision merely
requires a good faith effort The
Commission believes the applicant that
incorporates the information and advice
supplied by agencies in its ER benefits
from pre-application consultation
because it assists in expediting
Commission decision-making.
Proposed § 380.8{b){4) would require
that an applicant submit applications for
all related Federal and state approvals
as early as possible in planning its
project or action. Some commenters
believe this requirement to be
unrealistic because other agencies will
wait for the Commission to issue a
license before taking any action. It is
also argued that the provision forces an
applicant to get state approval before
filing an application, with duplication of
effort and conflicts of law as a result
The Commission emphasizes that this
provision does not require approval by a
state or Federal agency where otherwise
not required by law; The Commissian
merely prefers that if other federal or
state approvals are required, the
applicant apply to that agency in the
early planning stages. The objective of
the provision is to facilitate early
identification and review of
environmental problems. It does not
hold in abeyance the applicant's ability
to submit an application or Die
Commission's power to process me
application.
Oae commenter contends that the
requirement in proposed S 380.8(b)(5}
that the applicant notify the Commission
staff of all other Federal actions
required for completion of the proposed
action or project wa* unnecessary and
conflicted with the Commisioa's
obligation under i 1501.2 of the CEQ
regulations to advise the applicant The
authorization of a project wnhin the
Commission's jurisdiction is a joint
effort of the Commission, the applicant
and any other agency that may have
approval authority, special expertise, or
some other interest in me project. The
Commission want* to be fully apprised
of any Federal action* that could delay
approval and development of a
proposed action or project The
Commission's familiarity witn the
procedure* and requirements of other
agencies is extensive, but it is not
exhaustive. Since the applicant witt be
primarily responsible for apprising itself
of all governmental requirements that
affect its proposal, die Coasmisskm
believes this requirement is not
burdensome.
4, Environmental Documents
Section 380.9 proposes the format for
EIS's that is used by the staff. It is
substantially similar to that in 40 CFR
1502.10. It does not, however, include an
index or an abstract, and it adds staff
conclusions to the document The EIS as
previously proposed, § 3d.21, contained
the same subjects, but had separate
chapters for die environmental impacts
of the proposed action and analysis of
alternatives.
Several, commenters addressed issues
relating to the content of an EIS and the
procedures for the development
circulation, and approval of an EIS. One
commenter indicated that former
§ 3d.l3(d} (here replaced by proposed 40
CFR 1506.3) that permitted adoption of
an EIS prepared by another Federal
agency, could result in the exclusion of
interested parties from die BIS process
because any adopted EIS that covered
actions that were substantially similar
to the action proposed to the
Commission would not be recirculated,
except possibly as a final EIS. One aim
of both. CEQ and Commission NEPA
regulations is to minimize duplication
and excess paper work. Presumably, if
the action* are substantially similar,
interested parties have already
participated in the NEPA process. IB any
event, the Commission recognizes its
responsibilities to parties in its own
proceedings, and would provide
opportunity for comment when the
factual base or conclusion* of another
agency's EIS indicated the need for
further review. The Commission might
supplement the adopted EIS in thai case.
Commenters argue that the proposed
separation of the EIS sections th«t deal
witn the impact of the proposed action
from the analysis of alternatives to the
proposed action would predispose the
decisionanker toward the applicant's
proposal. The EPA contended that as>
EIS ehouk) give equal attention to alt
alternatives, including the proposal. In
addition, the Sierra Chibv beUeving that
format changes proposed by the
Commission were substantial stated
that the Commission's fatten to adept
certain CEQ provisioB* am the content of
an EIS went beyond mere alteration of
the foiraat
The ConnnissioB ttffff with the
conmenten that epaal cad substantial
attention should be gwen to all
reasonable alternatives to a prapoaed
project. It proposes here to adapt
§ 1502.14(b). which, require* aa agency to
devote sabstsatbd treatssesB to aM
alternatives including the proposed
action, and } 1502 34|c* which requires
consideration of reasonable non-
jurisdictiooa! alternatives. The
Commission nevertheless notes that it
generally analyzes the proposals of
others and decides between the
alternatives of approving or
disapproving an action or project
Although the Commission does not
agree that the EIS format proposed in
the original NOPR would have dictated
Commission deciaionmaking and
predisposed the Commission to certain
conclusions, in the reproposed rule the
proposed action and alternative* to it
would be presented in one section of the
EIS and all alternatives, including die
proposed action, would be analyzed
together. (See § M0.9f e).) in addition.
one request that the EIS foraut include
discussion of energy requirements and
conservation potential* of the
alternatives to the proposed action
would be accommodated bjr the
adoption of 40 CFR 150e.M(e) a*
proposed here. ••
The Commission doe* net agree with
the comment that concluded that
proposed i 3dlO(a)(5) (atenmtive* to be
considered) limited Cfinmfcssinn
consideration to those alternative*
mentioned hi an EIS to theexcsaaioBof
record evidence in shearing. That
provision i* replaced here by •
§ 388J(bM2). The Cosoaissioa believes
that bearings would not nonaaUy range
beyond the alternatives •resented hi an
EIS but. if they did. the Commission
would usually prepare a supplement to
the EIS. Section 15OZ9f cHlKn) of the
CEQ regulations provide* for soch a
practice and the Coanmsskm propose*
to follow that practice.
One conMifiirter requested
clarification of the evidentiary basis for
utilizing an BIS prepared by another
Federal agency nade* what ia now 4O
CFR 150&3. adoption fdf another
agency1* EISJ. H the BB that the
Commission wishes to adopt ism draft
form, the Coraauaion, woaht specify
that ft ia a draft at the th** ft is
circulated for comment When adopting
aa EIS kt draft or fc^ form tba^
Comiaission woMkl indf pf nritTtwy
review the docnaaemtto anaara that
comment* sad nggeaoona are aananed.
In the event that iaaae* contained in the
EIS in anther agency arc contested, the
Comminion coaldt*se expert testimony
that is competent and credible to
support ft.
An EIS ***y oe pnpared by a>
certifiabb/ free of any interest a* an
interrenor in • contacted prooeedhsg.
The Commiasioa* a* a matter of coarse.
evalnaie* consultant* for ojnSkt* of
interest In addition. JlSOfcSfc) of the
(^regafation*, her* proposed for
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 I Proposed Rules 20321
adoption, requires contractors to
execute a disclosure statement
specifying that they have no financial or
other interest in the outcome of the
project.
5. Classification of Actions
In Subpart B, the Commission
proposes to implement the CEQ
regulations (see 51507.3(b)(2)) by
establishing classes of actions which
normally require an Environemental
Assessment, an Environmental Impact
Statement, or neither of these (the
Categorical Exclusions class). The
Commission notes that actions whkh
would not usually be the subject of
environmental analysis, those in
proposed § 380.6 (a), may become so if
the Commission or the staff believe such
analysis is warranted. (See § 380.6(b). In
like manner, actions which normally
require an EIS may be found not to do
so in particular circumstances. § 380.5
(b) and (c).
Most comments dealt at length with
the kind of actions or projects that
should require an EA or an EIS and
which kinds of actions should be
excluded from these levels of
environmental analysis. Nearly all
categories of actions in proposed § 3d.lO
(b) and (c) and § 3d.ll were identified
by commenters as candidates for greater
or lesser environmental review within
the NEPA process. As a result of the
comments and further staff review,
some of the actions have been described
more precisely and the level of
environmental review for some actions
has been changed.
a. Environmental Assessments
Section 380.4 fdentifies^ctions the '
Commission believes may constitute
major Federal actions that significantly
affect the quality of the human
environment The EA enables the staff
to consider the effects of these actions
in an efficient manner and to decide
whether they may be significant If an
action will have a significant effect on
the quality of the homan environment
an EIS will be performed as long as the
project may be approved. If thelEA
indicates^ project will not have : ;
significant environmental impact .. ,.,
including instance*; where piitigaring ..
measures are responsible for the lack of
adverse impact the Commission will
make a Finding of No Significant Impact.
Where an EA shows a project has
significant adverse consequences and
the project is not approved, the
Commission is proposing not to perform
an EIS. The Commission believes that
an EIS is not required in these
circumstances. (Proposed §5 380.5(c)
and 380.7(e)(l}.) (See discussion above
under 2.d, Application denials.)
There are several proposed additions
to the Environmental Assessment class
(§ 380.4). Prior notice filings under
§ 157.208 by blanket certificate holders
for gas projects that exceed
automatically authorized dollar amounts
have been added. (See § 380.4(b)). These
projects are thought to be of sufficient
magnitude to warrant environmental
study. They were not part of the
Commission's regulations at the time the
previous NOPR was issued. An EA
would also be done for the construction •
of LNG peaks having facilities,
(§ 380.4(a)); for exemptions for small
hydroelectric power projects of 5 MW or
less (§ 380.4(h)); and for additional
project works at licensed projects
(§ 360.4(i)). Applications for new
licenses under section 15 of the Federal
Power Act would receive an
Environmental Assessment under
§ 380.4(k).»
An EA (rather than an EIS) would be
done for major unconstructed
hydropower projects with a total
installed capacity of 20 MW or less. The
same is true for onshore/offshore
pipelines other than those involving
major construction on right-of-way
where there is no existing pipeline.
There have also been some —
modifications of actions iii this class.
Only curtailments having a major effect
on an entire pipeline system would
usually have an EA (5 380.4fe)}. and
only some abandonments or-*eductions
of natural gas service (5 380&tc)) as
opposed to all of these actions, as
previously proposed.
Surrender of hydropower project
licenses and minor amendments to -
licensed and exempted hydroelectic
project facilities, would no longer
require an EA. Nor would exemptions
for small conduit hydroelectric facilities.
With respect to all of the actions
listed in § 380.4, the Commission
emphasizes that an EA should be
commensurate with the scope of the
actual project under study. Some of the .
actions and projects are obviously more
extensive .than others. By requiring an . .
ER and an EA under this section, the
Commission will have an opportunity to
determine whichjprbjecta or actions may
create problems for the environment "••'•'.
4 ta Confederated Triba and Bwidt of the
Yalcima Indian Nation. V. REJtO, 746 P. 2d 488 (9th
Cfr. 1984). the onirt held that the Committion '
unreasonably failed to prepare an EIS In the
relicenting proceeding involved there. The • •
Commiuion believe* that performance of an
Environmental Aswssment would enable it to
determine whether an EIS la neceuary or whether
there would be no • ignificant impact on the
environment for applications for reliceniing.
without imposing an undue burden on
applicants or creating unreasonable
delays.
Two commenters contended that
applicants should be permitted to
prepare an EA, with Commission staff
independently evaluating it. Section
1508.5(b) of the CEQ regulations,
proposed for adoption here, permits
agencies to allow applicants to prepare
an EA. At the same time, however, it
requires the agency to make its own
evaluation of the environmental issues
and be responsible for the scope and
content of the Environmental
Assessment The Commission believes
that an independent evaluation by its
staff would generally consume an
amount of time and resources equal to
preparation of an EA and that
preparation of environmental documents
by parties with a vested interest in
Commission approval is undesirable.
Thus, while it proposes to adopt
§ 1508.5(b), Commission practice would
continue to be preparation of EA's by its
staff and not by applicants.
The Sierra Club understood proposed
§ 3d.2Q(b), staff determination of
whether to prepare an EIS after
completion of an EA, to indicate that the
Commission would, in an EA, determine
the significance, of an action or project
on the basis of its nuMutade, including
the extent of CommiaMM&Kiirol or —
influence over thefnpwiiietion. As
the commenterpointed cot it is the
significance"of the environmental impact
that determines whether the
Commission will prepare an EIS. The
magnitude of a project is, of course,
relevant to any EA determination, but
the originally proposed provision placed
undue emphasis on it In any event the
Commission believes the standards for
assessing whether projects not classified
or those over which there is some doubt
are major Federal actions significantly
affecting the quality of the human
environment are sufficiently detailed in
the definitions proposed to be adopted.
(See 40 CFR 1508.18 and 150oV27.) It has
thus deleted former f 3d20(b).
Under the previously proposed rule, a
variety of actions normally required the
preparation ofairEA by the-
Commission, based in part on the
information 'submitted by the applicant
in its ER. Several commenters .
advocated the removal of many of these
actions from the EA category to the
categorical exclusion category (now
under S38O8),
One commenter suggested that
proposed 8 3d.lO(b)(l) (consteuction and
abandonment of gas facilities) should
apply only to "significant" construction
and "major" abandonment of various
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
gas facilities. The Commission believes
that, in general, construction and
abandonment of gas facilities are the
kinds of actions which may have
significant effects on the quality of the
human environment. It believes that for
the most part, they should be retained in
the EA category. The decision to
evaluate such actions is based on the
Commission's experience and
understanding of soch projects or >
actions and its estimation of the
likelihood of environmental damage. For
example, the environmental significance
of the construction of a metering facility
will depend more on its location, in a
wetlands area, for example, than on its
size or cost
Several commenters favored
categorical exclusions for the
certification for sale or transportation of
natural gas and for natural gas
curtailment plans. Where the
Commission believes these actions may
significantly affect the quality of the
human environment, it has retained the
requirement that an EA be prepared in
the current proposed regulation. Actions
which the Commission does not believe
will have significant effects on the
human environment have been placed in
the categorical exclusions class. Such
actions are gas curtailment plans-thai do
not have a major effect on an entire
pipeline system (proposed § 380.6{a)
(25)) and the sale, exchange, and
transportation of natural gas that does
not involve construction of facilities.
(Proposed § 380.8(a](27}.) These actions
are believed to have minimal effects on
the environment
The provision that required an EA for
abandonment or reduction of natural
gas service, originally $ 3d-10(b)(3). has
been modified. Abandonment of service
is now proposed for the Categorical
Exclusion Class. Abandonments in place
of minor natural gas pipelines and by
removal of minor surface facilities and
abandonments pursuant to blanket
certificates are also proposed for the
Categorical Exclusions class. (See
proposed 1380.6(81(21). (28), and (29).]
There have also been some additions
proposed for the EA category for natural
gas projects. Onshore and offshore
pipeline projects that do not Involve
major uuus (ruction on right-of-way
where there is no existing natural gas
pipeline wottld now require an EA
instead of an EIS. Liquefied natural gas
peakshaving facilities have been added
to the types of gas projects that would
require an EA. (See proposed § 300.4(a).)
Some co mm enters also recommended
the categorical exclusion of
hydroelectric prefects or actions
described m prevwrasly proposed
§ 3d.lO(b) (0) through (10), licensing of
minor hydroelectric projects and major
hydroelectric projects — existing dams,
surrender and modification of licenses,
and exemptions for small conduit
hydroelectric facilities. The Commission
has reviewed the comments and
believes that retention of the EA
requirements for the licensing actions is
desirable. (Proposed 1 380.6(1).)
Hydroelectric projects, "with less than
5mW of installed capacity" though
small, may have a significant impact on
their environs. (Based on its experience
with such projects, the Commiseion
requires from applicants a small,
streamlined ER such aa that under
S 4.61(d)(2) of its regulations.) It k
difficult to anticipate die nature of die
impact of any particular action. The EA
requirements would provide the
Commission with the opportunity to
make a threshold determination about
the need for more extensive study.
Section 3d.lO(bM8) dealt with actions
for which some commenters doubted the
need for any environmental review — the
surrender of hydzopower project
licenses and modifications in project
facilities, operations, or boundaries. The
Commission befieves that such action*
may represent a lesser threat to the
environment than some of the otker
actions in original S 3d.lO(b). Thus,
these actions baas been proposed for
the categorical exclusions category. (See
proposed § 380.6(aK13).) Applicants for
surrender or amendment of
hydroelectric project licenses must still
file an ER, however. The ER is
commensurate with the size of Ae
project See | ft.l of this chapter.,
The Commission realizes that some of
these actions may have a significant
impact Surrender of a license involving
a small project *»y require monitoring
of the clea*-*pv safety conditions, and
any possible threat* to heahk
Modification* of a project or the way/ in
which it operates may result in major
change* in land or water u*e that the
Commission must evaluate. IB
appropriate ckcuoMtances, the
CoBHHsaion would .do an EA or EIS for
such a project pursuant to proposed
$3a06(b}.
Section 3dlO(b)(?) dealt with
exemption* for small conduit
hydroelectric fofilitiftti The CTT
agree* with the rnmnmntog* that these
actions will not normally involve a
significant impact on the human
environment The facilities Involve man-
made conduits with aa installed
capacity of 15 MW or lew. The facMitie*
are not part of a dam and da not rely on
the construction of dams. Thus, these
action* are proposed here as part of tie
categorical exdnrioo* eta**. (S»
proposed f 3W.6{aH14>.} Again,
however, application for such an
exemption require* the Sting of an Eft
under 1 4.S2(e} of this chapter.
The Commission proposes to retain
licenses for transmission lines in die EA
category. Thia requirement pertains to
both construction of such lines and
maintenance of existing lines. The
Commission believes an ER and an EA
are appropriate when licensing
constructed lines because maintenance
of rights-of-way has continuing impacts
on the environment The Commission
would require an ER under S 380.8(cJ(l)
in accordance with the requirements of
S 4.71 of this chapter. For constructed
lines and those to be connected to a
licensed hydroelectric project with an
installed generating capacity of 5 MW or
less, this would be a short-form ER
under J4.61(dK2).
The EA requirement for electrical
interconnection* aad wheeling under
four sections of the Federal Power Act;
now described in 1 380.4(1). wa*
originally proposed only for such action*
that would entail "substantial new
construction," Definition of this term
was requested. la the rcproposed rule, in
an interconnection or wheeling
transaction conducted pursuant to the
enumerated section* of the Federal
Power Act involves the construction of a
new substation or expansion of an old
one, or a new transmission line that
operate* at mote than 115 kilovolt* (KV)
and meets certain other specified
criteria, am BA would be required.
Language- ha* been f4$t$ at
S 380.6(a)(17) of the reprapoaed rule
setting forth which such actions would
not require an EA. The Commission
would obtain sufficient intonation oa
interconnection and wkeeUng projects
that arc categorically excluded to
require an EA wfaeic appropriate.
b. Environmental Impact Statements
Section 3«0.5f*) »*rt*in* pnrjrrtn or
action* dmt lfceCa»wno*iD»! betiewe*
are aetmally BUJOT Federal action* that
significantly affect ate qwBty of the
human e*HM'cament Oanabatai staff
may decide that a patticutar psojector
action tlut would odUiMi^nq*im *•
EIS may not, iorMBemuan, b»i
major Fedni actfc*, IB *•*<
EA weuUBnt beprapcradtei
the Meed Cot •
however, M i*
of an OS wortd MtoMtteaUy JoPow
application for avtfeorintioii far**qr
liquefied natural gw tnport/expevt
fad&f* amafrrulpaltot pvofsct on
natural ga* pipeline, * new gM storage
field, or a new ufKOMtnteted
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules 20323
hydroelectric power project with a total
installed capacity of more than 20 MW.
The Commission is proposing to add
certificate application* to develop
underground natural gas storage
facilities (except where depleted oil or.
natural gas producing fields are used) to
the actions that would require an EIS.
(Proposed S38ft5{a}|2}.) Only major
pipeline construction projects utilizing
right-of-way where there is no existing
natural gas pipelines are proposed to
require an EIS, however, rather than all
major new onshore/offshore gas
pipeline projects. Other pipeline projects
would receive an EA. Unconstructed
hydroelectric projects with a total
installed capacity of more than 20 MW
are proposed hi the EIS class rather than
all major uoconstructed hydroelectric
projects. Other unconstracted
hydroelectric projects would receive aa
EA.
The Commission believes tart where
a pipeline ha* already been constructed
the significant effects on the
environment have generally already
takes placed. Any new enestraenon in
the same right-of-way a* the existing
pipeline is much less likely to hove
significant effects, ft is thus proposing
here to perform a* EA rather than an
EIS for projects te be btritt on existing
right-of-way with eonatracted pipeline
An EIS will be performed far major
pipeline projects to be buih on new
right-of-way or on existing right-of-way
without constructed pipeline.
The CciRimflaion baa reviewed fee
EIS's it has done for appHcatwas for
hydroelectric project licenses from
approximately 1972 to the beginning o£
1987. Of a total ol 46 EIS's, only 12.
about 26 percent, involved projects with
a total metalled generating capacity of
20 MW or less. The ComnisBaoB
concludes, therefore, that m the vast
majority of applications far which an
EIS will be performed, thegeneratiag
capacity will exceed 20 MW. it ha* Una
used this criterion in dtfmiag
application* for which it will oonaHy
perform SIS'*.
Commenters argar that the original
proposed regulation weald create
conrnsiraabavt when aa BIS mast be
prepared becaaaa it would raqnce fhs
§ 1502.5(b> and jc» an EIS earner than
the Supreme Court appeal* to dofe
Aberdeen and Rockfish Railroad
Company v. SCRAP.' la SCRAP # with
regard to an application by a non-
Federal party, the Sapieme Court stated
"... the time at which the agency mast
prepare the fiaal statement ic the time at
which it makes, a reconaieadation or
report on a proposal for federal
action." * Section 1502.5(bJ states that
an EA or EIS shaH be commenced "no
later than immediately after [an]
application is received." Section
15O2.5{c} states that for adjudication, a
final EIS "shall normally precede the
final staff recommendation" and that
portion of the hearing relating to the
impact study. The CEQ regulations at
issue here were promulgated hi 1978,
subsequent to SCRAP 11 The
Commission does not beh'eve they
contradict SCRAP It. Preparing a final
EIS and making a recommendation, on. a
proposal are lengthy processes and
commonly proceed simultaneously.
Section 1502.5fb} merely provides that
environmental study should be begun a*
soon as possible, and definitely when an
application is received by the agency.
The recommendation or report process.
would begin at the same time. Section
1502.5(c) addresses the needs of
adjudication. Adjudication must be
based on evidence, and if the agency
has not completed the NEPA process* it
may not yet have decided upon its,
evidence and may not be ready to
proceed to trial The Comnusftion's,
current practice is to prepare an
Environmental Assessment (EA} or aa
EIS as early as possible in its
proceedings, so that such ^"^""""'T ace
available for tumrwiag nnrf contested
cases. This would continue to be
Commission practice under Part 38fk
The Commission does not believe
SCRAP II createa any inconsisieBcw
with practice.
One commenter stated mat the wwd
"major" in proposed & adJXHcM*}, that
described new onshore/offshore natural
gas pipeline projects requiring EK?»
(now & 380t5(a)(3,ft shoald be delmed
according to CoaMdiaaian precedent
Suck projects* ft was. argued* have little
environmental impact aad an EIS te
therefore nnnarniarj Thn (Tnmmiminn
does not believe that ostaaote/oflshojs.
pipeline projects an mteiy te have
minimal eaviraanealal impact. The
potential threat to am life aad
freshwater swamps make*
environmental review advisable far
such projects. However, suck a pipeline
project may not alwaya be aa liaimthwa
to its environmental the oner typacoi
actions described in i 3aQ£(a).
Experience indicates thai anmt
onshore/offshore projects shooid have
an EIS. Waile there do aot appear tD be
any/ convenient engtaeerini
environmental criteria; tot <
"bright Mae" dfrtiacnon beta
"major" and non-major pipefcae
projects, the industry must be aware
that pipeline projects involving
extensive construction or sensitive
environmental areas will almost
certainly require an EIS. Moreover, there
is no difference in ER filing requirements
for pipeline projects receiving aa EIS
and those receiving anEA. (See
c. Categorical Exclusions
Under § 380.6(a), various action* aad:
projects of non-Federal applicants and
many actions or function* performed by
the CranmJssioa itself are proposed a*
not normally consti toting major federal'
action significantly affecting the qaatrty
of theboraan envronneRt. This weald
not, however, foreclose environmental
review if wtasnat ckcanstanees-
indicated that any of the action*
presumed not to cause any significant
direct or mdfreet environmental impact
might, in fact, have sash effects. [See
S 3W.6{b),>
The Categorical: Exclusions section
(9 380.6(3]}, has undergone some
revision since the previous NOPIL Throe
sections have been deleted:
S Sd-IlCalfiai, (151, and (23J. review or
approval of study proposals required by
a license or preliminary permit for a
hydroelectric project, water resource
appraisal studies and plans, foe
displacement of fuel oil by natural gas.
Number 12, study proposals, is part of
the preliminary permit process* Watez,
resource appraisal studies, niunbei 15,
are no longer prepared. Number 23»
displacemeat of fuel oil by natural gas,
is no longer monitored by the
Commissio&v
There an a nsmber of admnow
proposed far tmr Categorical Excmskm*
section. TkeaeactJoHSv it i* felt haw
minor ov no advene efitctaoa fee
envinmraenfc.lae finr te tkr
estabtisfameBto< fee* tab* void fey aa
appMcaet aadtf sectio* safe) ef the
Federal Power Act (nrapiaMJI
§ 380.6(a)(ll).t Other
hydroelectric ana aw die svtnmdar of
hydroelectric license*, preftnloary
permits, aad ememptfou*. auiau duieuts
y
exemptions, e
jdmenfsrbr
1 42ZUS. 28*. 35 SLO. 233B fJ*75J (SCRAP IH,
•/rf 812356.
J*l
f prefect works
hydrpefectric faetiftfe* (§ MRefa)fJt4R
SiiBifary, f^^nflffff fit Luiu rig/itB raff
water power puijiBtJL lands, for utilities,;
small structures, erosion measures, and
some otbernses have also been
proposed for mdusion in | SaootaJ. (/See
proposed i MO.Qta}tl9).I (These actions
were discussed in the Environmental
Assessments section, S.a above.J
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20324
Federal Register / Vol. 52. No. 103 /Friday. May 29. 1987 / Proposed Rules
Exemptions for hydroelectric and gas .
projects are proposed to be added to
several types of procedural actions that
were previously categorically excluded.
These include withdrawals of
applications (§ 380.6(a)(10)) and
approval of filings made in compliance
with certificates, preliminary permits,
exemptions, and licenses
(§ 380.6(a)(30)). Transfers of exemptions
under Part I of the FPA are also
proposed to be excluded. (See
5 380.8(a)(8).)
Electrical connections and wheeling
under sections 202(b), 210,211, and 212
of the Federal Power Act where there is
no new substation, no line operating at
more than 115 KV on more than 10 miles
of right-of-way, and no new line on more
than one mile of new right-of-way are
also proposed as categorical exclusions.
(See § 380.6(a)(17J.)
With regard to gas, a number of
actions would be added to the
categorical exclusion section. (See
§ 380.6(a)(20). (27). (28). and (29).) These
are exemptions under section l(c) of the
Natural Gas Act; the sale, exchange, and
transportation of natural gas which does
not involve construction; abandonment
in place of minor natural gas pipeline
and abandonment by removal of minor
surface faculties; and abandonment of
service under a gas contract
Lastly, a categorical exclusion for
actions having only socio-economic
effect is proposed as S 380.6(a)(31). This
exclusion is in keeping with S 1508.14 of
the CEQ regulations which provides that
"economic or social effects are not
intended-by themselves to require
preparation of an environmental impact
statement"
- Numerous commenters, largely
representative* of regulated industries,
advocated expansion of the list of
projects excluded from the need for
issuance of environmental documents
under the NEPA process. Many of the
actions or projects that commenters
wanted removed from the EA category
(1380.4), discussed previously, axe the -
same-project* or actions that
commenters also suggested be •
categorically excluded.. • .. • .
A naturaJLga* pipeline company • • .
.requested; exclusion of natural gat? •
interconnection and transmission
facility, projects, such a* pipeline loops • ••
and added compwssion facilities within,-.
or adjacent to, existing rights-of-way~, •
Such projects, it was argued, rarely -have .
a significant environmental impact The
Commission believes that the
construction of such facilities may,
violate noise standards, change land
uses, disturb previously unknown or
unnoticed historical or archaeological
sites, or jeopardize credible soils.
Pipeline loops can conceivably involve
up to hundreds of miles of new
construction. The Commission thus
proposes to continue to require an EA
for such projects under § 380.4(a).
One commenter argued that licenses
for constructed major or minor
hydroelectric projects, licenses for
constructed transmission lines, and
approval or modification of
hydroelectric project boundaries should
be excluded. Modifications in licensed
hydroelectric project facilities, mode of
operation, and boundaries are proposed
here as categorical exclusions. (See
5 380.6(a)(13).) The Commission believes
that the other projects mentioned may
have environmental effects that should
be assessed prior to authorization.
These projects or actions are thus
reproposed here as requiring an EA. (All
of-these actions were discussed above
in the Environmental Assessments
section.)
A natural gas utility argues for the
exclusion of the replacement of existing
pipelines and appurtenant faculties. The
Commission believes that some
replacements'are already excluded by
virtue of 5 2.55(b) of this chapter, which
excludes facilities which replace
deteriorated ones from the definition of
"facilities" under section 7(c) of the
Natural Gas Act as long as the
replacement has a substantially
equivalent designed delivery capacity:
With regard to other replacements, the
Commission believes that although
substituting a new pipeline for an old
pipeline may-appear to'leave the kind in •
the same condition, removal^of the old '
line and retrenching could seriously
disturb the environment and should be
assessed for any impact ,
A commenter also advocated
categorical exclusion of natural gas -
transportation and exchange
arrangements, including those entered
into pursuant to section 311(a) of the
NGPA, provided thatnomajor
construction of-facilities isiiropdsed.
The Commission believes mat these •
actions will-not usually have adverse
environmental impacts and thus
proposes f 380.6(aH27) excluding the
sale, exchange and transportation of- "•
natural gas and do not require - •.
tonstructioir of facilities.- - '• • » •
- Jt was ftirthercoatendedthat~ ••< •«•-
individual natural g« projects that -•;••"•-•
wottldquaHfy as budget-typ* certificate
projects under § 187,7 (b), (c), {d)» (a) or .
(g) should be excluded. Faings under .
these sections are no longer accepted by
the Commission and most certificates
issued have expired. The essence of the
old budget-type program was ' •-
transferred to the Order 234 blanket
program under. 18 CFR 157.200-157.218.
This program was the subject of an EA
and has its own environmental
procedures that the Commission
believes are in harmony with the
procedures in this rule. References to the
Order 234 and Order 436 programs have
been added at 85 380.4(b). 380.8(a) (21)
and (22), and 380.8(c)(2)(ii). The
Commission proposes to retain
preparation of an EA for facilities which
require a prior notice filing under
§ 157.208 because their costs exceed a
specified limit Other action* under the
blanket programs, such as gas sales for
resale, construction of certain sales taps,
new delivery points, transportation, and
increases in storage capacity,, have been
proposed as categorical exclusions. (See
S 380.6(a) (21) and (22).)
As previously stated, the Commission
proposes to place abandonment in place
of minor natural gas pipeline and by
removal of minor surface facilities and
abandonment of service under a
contract in the categorical exclusion*
class. Minor surface facilities include
valves, metering, and related equipment
including underground connections to
pipelines. The Commission believe*
removal of these facilities would have .
no significant impact and would - . .
generally improve the appearance of the
facilities' site. By minor natural gas
pipeline, the Commission means short
segments of buried pipeline of six inches
outsider diameter or les*. The . .
Commission believe* that abandonment
in place of such pipeline-would have no
sigm^cant environmental impact These.
action* are thu* proposed under-
S 380.6(a)(28). When service under a
supply contact la abandoned, facilities
are only infrequently abandoned. Such
fadlitie* consist of well*, wellhead
equipment and gathering pipeline* and
are under the jurisdiction of other state
and Federal agencies. Abandonment
underage* supply contract doe* not
affect thrpipelirie*'respon*ibiaty to .
serve it* customer* and. therefore, has
no environmentalimpact For/txaraple, „-
abandoiimept of.first *ale* to interstate
pipelines and pipeline to pipeline *ale»
rightujf-wayfeme categorical
exclusion* dara^ha* ahvayrbeen - -:- .-
qualified by th« condition that land use
in the vidntty of the project must have-
remained unchaaged*mce the original
facititteswere installed. One commenter
argue* that mi* condition should be
deleted because construction in a right-
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Federal Register / Vol. 52, Nor. 103 / Friday, May 2ft 1967 / Prondsed Rule's
of-way is limited to small facilities with
no environmental impact. The
Commission believes that construction
of small facilities, even in existing
rights-of-way, may have effects on land
use and historical or archaeological
sites. In addition, if significant
nonjurisdictional facilities are
associated with minor facilities under
Commission review, they must be
included in. the NEPA evaluation.
The EPA argued that the categorical
exclusion now proposed in $ 3flO£(a){7j
for actions relating to the reservation
and classification of United State* lands
as water power sites, as well ag other
actions under section 24 of the Federal
Power Act is not appropriate because
such actions constitute major land use,
decisions. The reservation of the Federal
lands under section 24 is automatic at
the time an applicant applies for a
preliminary permit QJ a tJCCTSB for a
particular site for purposes of power
generation. The reservation preserves
the status quo; it dees not allow die
applicant to proceed with its project
The Commission then evaluate* the
environmental impact of the project
when it receives, an application for a
license."
The Sierra Club strongly attacked the
exclusion of preliminary permits, now in
proposed 5 3oUS(a)(9), arguing that
ground disturbances pursuant to
feasibility studies may have significant
effects on the environment It was
argued that an application for a permit
.should contain an Environmental Report
(ER], including comparative studies of
alternatives, and be followed by an EA
prepared by the Commission.9
The Commission continues to believe
that preliminary permits are among
those actions that rarely entail
significant environmental impacts and
has thus again placed them under
Categories Exclusions. The proposed
Categories Exclusions hi S 380.8[aJ are
not absolute. Under paragraph, (b) of
that section, the Commission would
prepare an EA or EIS when there are
circumstances that it determines involve
significant environmental impacts. In
the case of preliminary permits, those
circumstances can be detected by
Commission staff by meant of the work
plan for new dam construction
responsibility of fte Departaenl of the Interior.
• Preliminary permfti have been the subject of
two ncort hima'U. WiihfcjUn Slim Dmmfciuut
of FiiheriM^reMXSM RaHSMfH* Or.MSS|
and Natiaul Wildlife F«l«r«tinin. EEBC. S» R3d
1 506 (9th Or. 1986). to both cues the petitioner
contended inttraHa. that the CommteioB «fcouU
have prepared •• EA «r«t BIS "fta cMrt did not
other grain*. (See National Wildlife «* 15154
contained in Exhibit 2 of the preliminary
permit application (18 CFR 4.81(c)). But
because it believes the vast majority of
preliminary permits do not entail studies
that have any significant impact on the
environment, the Commision does not
propose to prepare an EA or EIS for
each such application.
6. Public Participation
a. Scoping and Public Notice
The Commission proposes to adopt
many of the provisions of the CEQ
regulations pro-riding for public
participation in the NEPA process; The
Commission wiH follow the procedures
for "scoping" or determining the issues
to bemcfaded in an EIS that are set out
in 40 CFR 1501.7. The Commission also
proposes to fallow the provisions for
public notice, meetings, and availability
of documents of 40. CFR 1500.6. with
some modifications as noted below.
These provisions are largely the same as
those contained in the previous
proposal.
Many commenters requested further
elaboration of the Commission's scoping
procedures in the new rule, based on the
provisions of S 1501.7 of the CEQ
regulations. The Commission proposes
adopting the CEQ scoping, procedure.
The Commission believes the: steps- aad
tasks involved in this procedure an
adequately speUed out in the CEQ
regulations, 40 CFR 1501.7 and 1508.25.
The CEQ regulations do not require
public pertiapatian or pobttc. rMmmnl
on Environmental Asseasaests.
However, the Cnmrnksion uses certain
procedures when it believes that tke
analyses at issue may beaefit from
public man««»T^ On occasion, the
f^miTf^ft the
CEQ regulation, S 1506.6. In the ordinary
course of business the Commission often
given notice of availability of
Environmental Assessments- (EA} and of
Findings of No Significant Impact
(FONSI) in the orders it issues
concerning applications. (A FONSI may
be incorporated in an order ratter than
appearing as a separate document) The
Commission wishes to continue this
practice, end so includes this sectTun in
the proposed regulation.
The original proposal S (3.dl3PU
contained a provision allowing, the
Commission l» publish EIS*S 18 days
after fifing wflfc. tie EPA if there was no
publication by 9A dosing, that time.
The current proposal retains tins
provision. (Proposed S 380.23.}
One commenter contended that the
publicatJon-ofrnotfee of NEPA-related
events in proposed 1 3dJ3.(f) axe an
entirely new and unnecessary addition
to the regulations. (The corresponding,
sections here are 40 CFR 150&6(a} and
(b). which, are proposed for adoption.)
The f!r»inrpfaai«n does not beHeve *ft»« to
be the case. The Cammission already
publishes n
meetings, notices of inUnt to
environmental ift
occasion T">tire"^ of the availability of
environmenftaL docutnentsv tTBdff* the*
repropoeed rules, sucii puibilca>tiov.
would occur as. set out tai 4O CFR
ISOOfifr) aad proposed, iS 3aO7fe) and
38022.
The pcovisioiu ia proposed f 3d.l3(f)
that deok with wheakeangie>
meetteflk would be held o»
rnirimnmnntsl imini rnnsrii inma
the distiacttoabetweea Uw tw*. Tfcfs
piowiBieBi would b» replaced by 4A CFR
ISOAJKcJ wUch itprapKMcd lor
adoptiom. The rntmiieina befavcs tiwk
heansgs awi meetiB(s> etc need
interchaageably IB tttc secnoa.
"'In ii Hi ii rrisisiininn hrilils • limim.
or meeting, it will pwbliah notice
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20326
Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
describing the nature of the hearing or
meeting, and the issues, controversies,
or statutory requirements involved and
will make available to the public or the
interested parties the underlying
environmental documents, if any, that
may be discussed. Circulation of an EIS
includes service on all parties to a
contested proceeding under Rule 2010 of
the Commission's Rules of Practice and
Procedure. 18 CFR 385.2010 (1988). In
accordance with comments and
following 40 CFR 1506.6(c](2), if a draft
EIS will be discussed at a hearing or
meeting, the Commission will usually
circulate it to'the public and to the
parties in any proceeding, at least 15
days in advance of the meeting or
hearing.
b. Intervention
Section 380.20(a) proposes to allow a
motion for intervention in trial-type
proceedings based on the environmental
issues or sufficiency of a draft EIS. The
newly proposed section is substantially
the same as the old, § 3d.lO(e). Section
380.20 then states the responsibilities of
persons who intervene in trial-type
proceedings. (Proposed 5 380.20{b)(3).)
Intervenors would be required to file
timely comments in cases not yet set for
hearing. Where a matter was set for
hearing, an intervenor could present
evidence and participate in accordance
with the Commission's Rules of Practice
and Procedure. Facts and opinions on
environmental issues could not be
considered if they were not admitted
into evidence and made part of the
record of the proceeding. (See
5 380.20(b)(3)(ii)(B).) Such facts and
opinions may, however, have been
expressed as comments on draft
environmental documents. In that case,
they would be entered in the xecord to
the extent they were reflected in the
final environmental document and that
document was submitted in evidence.
Subparagraph (c) states that the
procedure for resolving a contested
environmental issue that is the subject
of trial-type proceedings will be the
Commission's own adjudicatory
process. Those who wish to contest an
environmental issue that is the subject
of a trial-type hearing can do so as
parties either under the intervention
procedure proposed in these regulations
or under the Commission's Rules of
Practice and Procedure, 18 CFR 385.214.
The CEQ would stand in the same
position as any other person in this type
of proceeding and should intervene and
submit evidence on the record if it
wished its conclusions and opinions to
have probative value. If it did not
choose to become a party, then its
opinions and conclusions could not be
considered unless submitted by a person
who was a party and admitted as
evidence or unless they were otherwise
officially noticeable. [See
§§ 380.20(b)(3)(ii](B) and 380.20(c).)
It is important for all agencies and
members of the public to understand the
fundamental differences between the
opportunity to comment on proposed
Commission actions or to petition the
Commission to adopt certain policies,
and the more stringent responsibilities
and requirements imposed on persons
who intervene in contested on-the-
record proceedings in order to
demonstrate that the Commission
should or must adopt a particular course
of action. The procedure for intervention
is governed by the Commission's Rules
of Practice and Procedure at 5 385.214
(Rule 214). Proposed § 380.20 would
allow a timely motion for intervention
upon publication of a DEIS if it is
ultimately issued as a final rule.
The EPA desired that Federal
agencies be afforded automatic
intervention in contested proceedings.
The Commission believes that such a
provision may not be appropriate
because the process of intervention and
the resulting litigation is only
meaningful if the contesting parties are
willing and able to supply record
evidence. This may include personal
participation in a hearing by the
intervenor or a representative of the
intervenor group.
c. Availability of NEPA Documents
Section 380.21 proposes to implement
CEQ regulation § 1508.6(e) by specifying
that information and documents
concerning the NEPA process will be
available to the public through the
Commission's Public Reading Room and
Public Reference Branch.
The Commission does not propose to
create a separate repository devoted
exclusively to environmental documents
as requested by one commenter.
Environmental documents would be
available from the Public Reading Room
and Public Reference Branch according
to the docket numbers of the actions
involved and as indicated in these
regulations and the Commission's public
notices. (See proposed i 390.21.).
7. Resolution of Interagency
Disagreements
The current proposal adopts the CEQ
provision for the resolution of lead
agency disputes, 40 CFR 1501.5. With
regard to substantive environmental
disputes between the Commission and
other Federal agencies, the Commission
does not propose to adopt the
procedures of Part 1504 of the CEQ
regulations which provide for the
referral of such disputes to CEQ for a
recommendation.
The original proposal established its
own procedures for resolution of
disputes, $ 3d.l4. The net effect of these
procedures was to refer lead agency
disputes to the CEQ under 40 CFR
1501.5. Environmental disputes related
to Commission actions or proceedings
pursuant to its regulatory
decisionmaldng functions were to be
resolved exclusively by Commission
decision and any judicial review thereof.
CEQ recommendations were to be
entered in the record as advisory only if
CEQ were not a party to the proceeding.
The initial proposed rulemaking did
not adopt the Part 1504 procedures of
the CEQ because that Part appeared to
indicate that the Commission's
determinations on environmental issues
could become subject to binding
decisions reached outside Commission
proceedings. Binding resolution of
disputed issues by CEQ would be
inconsistent with the Commission's
primary jurisdictional statutes and its
Rules of Practice and Procedure.
In the intervening period between that
NOPR and this one, no Commission .
matters have been referred to the CEQ.
by another agency, nor has the
Commission referred any environmental
disputes to the CEQ. The Commission
believes that the referral process may be
incompatible with both its adjudicatory
and rulemaking processes and so, again,
does not propose Part 1504 for adoption.
The EPA objected to the provision in
former S 3dl4, here proposed 5 380.20,
that required commenters to intervene
formally in contested Commission
proceedings in order to influence
decisions on issues set for hearing. This
requirement, according to the EPA, is
contrary to NEPA and section 309 of the
Clean Air Act which gives EPA the right
to comment on any agency action. The
Commission wishes to avoid
misunderstandings about its
proceedings or the purposes of its
intervention provisions.
There are a variety of means by which
agencies or members of the public may
participate in agency dedstonmaking
without any special qualification. These
include commenting on rulemakiflgs
under the Administrative Procedure Act
and commenting on any draft EIS,
whether prepared for an adjudication.
such as a contested or uncontested
licensing proceeding, or a rulemaking.
Comments on an EA are sometimes
solicited, .and there are opportunities to
participate in scoping meetings as well.
Federal and state agencies may be
asked to consult with the Commission
and applicants regarding projects in
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20327
which the agencies have an interest by
jurisdiction or special expertise. The
EPA may participate to the fullest extent
in any and all of these procedures.
The submission of comments for
consideration by the Commission or its
staff described above, however, is very
different from the procedures
surrounding participation in a contested,
trial-type proceeding. The Commission
makes any decision that results from a
trial-type proceeding based on a formal
record and, if environmental issues are
formally contested, parties must
intervene and subject their evidence to
cross-examination in order to ensure
that such evidence or opinion is
properly considered by an
Administrative Law Judge. A regulatory
agency is bound to provide due process
to all parties. In a contested on-the-
, record proceeding, an agency of the
United States will enjoy a position no
different than that of other parties. In
such a proceeding, no weight will be
given the agency's evidence unless it is
formally entered into the record. {See
§ 380.20{b)(3)(ii)(B).) EPA may, if it
wishes, intervene under existing
Commission regulations, or under the
additional right of intervention proposed
here if it is promulgated as a final rule.
The EPA also requested a provision
describing how lead agencies may
request Commission participation as
cooperating agency and a description of
the conditions under which the
Commission would choose to serve as a
cooperating agency. The Commission
here proposes to follow the provisions
governing cooperating agencies in the
CEQ regulations, 40 CFR 1501.6 and
1508.5. An agency may request
Commission participation simply by
writing to the Secretary of the
Commission. A responsible officer of the
agency will determine whether the
Commission's interests in a project are
sufficient to Justify participation as a
cooperating agency. Normally, other
agencies will request to be cooperating
agencies or to participate as parties in
Commission proceedings to approve
applications. •
One commenter requested a
description of the point at which the
Commission would decide a
disagreement between itself and another
agency is unsolvable. so that it may be
referred to CEQ. Although the
Commission is not proposing to adopt
Part 1504, there may be occasions on
which it would consider participation in
the referral process beneficial. The
Commission believes that such
decisions must be made on a case by
case basis.
The same commenter requested that
the Commission establish a maximum
timefgrattempting resolution of any
interagency disagreement. Such a time
period would arguably help avoid
delays in the Commission's
decisionmaking processes. If such
disagreements are not settled prior to
hearing on applications, they will
ultimately be decided by the
Commission. Schedules for matters set
for hearing are determined by the
Commission or the Presiding
Administrative Law Judge.
8. Miscellaneous
a. Monitoring
Section 1505.3 of the CEQ regulations,
which was originally proposed for
adoption by reference and is also
proposed for adoption here, states that
an agency may monitor the
implementation of its decision. One
commenter requested clarification of the
term "monitoring." The Commission
customarily reviews on a case-by-case
basis many of the non-Federal projects
that it has previously authorized.
Commission authorization is frequently
conditional and licenses or certificates
often require that reports be filed with
the Commission after a project becomes
operational. There is post-certification
review for natural gas projects. In
addition, there is ongoing cooperation
with other Federal agencies, such as the
Bureau of Land Management, that share
an interest in, or jurisdiction over, a
particular project The Commission
'believes the monitoring function of both
§ § 1505.2 and 1505.3 of the CEQ
regulations is present in many of the
Commission's regulations and
procedures.
b. National Historic Preservation Act
The Advisory Council for Historic
Preservation (ACHP) requested that a
section be included in the NEPA
regulations describing the Commission's
responsibilities under the National
Historic Preservation Act (NHPA). The
ACHP has recently revised its
regulations governing agencies'
compliance with section 106 of the
NHPA.T Insofar as NHPA compliance
may be handled through the NEPA
process, the Commission would do so
under these reproposed regulations. •
The Commission currently includes
requests for information on historic sites
in its various Environmental Report (ER)
requirements and it consults with the
Advisory Council when approving any
project that may affect a historic site
included in or eligible for inclusion in
the National Register of Historic Places
' "Protection of Historic Properties," 51 PR 31115
(September 2,1966).
or that may affect any other cultural
site. It should be noted, however, that
NHPA requirements are separate from
those of NEPA and may necessitate
other or additional actions on the part of
applicants and the Commission to
ensure their fulfillment.
c. Supplemental DEIS's and FEJS's
Section 380.7(d) outlines the
procedures by which supplemental draft
and final EIS's performed or adopted by
the agency could become part of the
record in accordance with § 1502.9(c)(3)
of the CEQ regulations. For rulemaking
proceedings, such status would be
automatic where the rulemaking
proceeding was ongoing. If the record
had closed, then those seeking review
might introduce them under the
procedures provided for judicial review
such as section 19(b) of the NGA,
section 313(b) of the FPA, and section
SOBoftheNGPA.
In adjudicated matters, if the
proceeding were still pending, a
supplemental draft EIS or final EIS
might be admissible in evidence. If the
evidentiary record has been closed, a
party may move to reopen the record,
the presiding officer could reopen it sua
sponte prior to the service of an initial
or revised initial decision, or the
Commission could reopen the record
after service of the initial or revised
initial decision. 18 CFR 385.716.
d. Finding of No Significant Impact
Some commenters requested more
information about a Finding of No
Significant Impact (FONSI}. A FONSI is
an environmental document as defined
in S 1506.13 of the CEQ regulations. It is
a product of the EA procedures and
briefly presents the reasons why ah
action would not have a significant
impact on the human environment. A
FONSI incorporates or contains a
summary- of the EA. A FONSI may be
combined with another agency
document under the CEQ regulations* 40
CFR 1506.4. so that a FONSI may be
issued as part of a Commission Order.
e. Non-Jurisdictional Facilities
The Commission recognizes .that it is
responsible for assessing impacts on
non-jurtcdictional facilities in
conjunction with those ever which it has
jurisdiction. (See Alice Henry v. Federal
Power Comaa'saion, 513 F. 2d 395 (D.C.
Cir. 1975).) For purposes of
environmental analysis, the Commission
must consider all of the facilities that
are integral to a proposal. In Alice
Henry the court held that the
Commission had to consider the
environmental effects of an entire coal
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
gasification proposal including the
plant, pipeline to transport the gas, and
a tap and valve facility, for purposes of
NEPA. Only the tap and valve facility
came within the Commission's
jurisdiction. Id. at 405-407. The CEQ
regulations which the Commission is
proposing to adopt provide that "parts
of proposals which are related to each
other closely enough to be, in effect, a
single course of action shall be
evaluated in a single impact statement"
40 CFR 1502.4(a). Actions that are
interdependent parts of a larger action
and depend on the larger action for their
justification should be evaluated
together. 40 CFR 1508^5{a)(iii). The
Commission believes that these
principles apply generally to the conduct
of environmental analysts undertaken
under NEPA and that, therefore, on
occasion, it may be required to evaluate
the effects of non-jurisdictional facilities
when preparing EA's and EIS's.
IV. Treatment of Certain CEQ
Regulations
Some portions of the CEQ regulations
are not proposed for adoption. Some
require implementing action which is
taken herein, and some, the Commission
believes, are inappropriate or contrary
to Commission practice or authority.
Section 1501.2(d](2) and the second
sentence of § 1502.5(b) are not proposed
for adoption because they would
conflict with other statutes and
regulations. These sections, in effect,
either call for or encourage agency
consultation with other Federal agencies
prior to the receipt of applications for
projects. Specific consultation
requirements for the Commission are
contained in statutes such as section
10{a)(3) of the FPA (as amended by the
Electric Consumer Protection Act of
1986. Sea 3{bX4). 100 StaL 1243,1244),
which states that the Commission "shall
solicit recommendations from state and
federal fish and wildlife agencies and
Indian tribes upon receipt of an
application for a license." Section 30 of
the Federal Power Act requires the
Commission to consult with Federal fish
and wildlife agencies hi making a
determination on an application for an
exemption for a small conduit
hydroelectric facility or a small
hydroelectric power project The
Commission's regulations both in this
proposed rule and elsewhere (see 14-38
of this chapter) require or encourage
applicants to consult with Federal
agencies as early as possible in their
planning processes. Applicants present
this information as part of their
application. Commission consultation is
triggered by the receipt of applications.
The Commission believes that Section
102(2)(C) of NEPA does not require more
than this and that pre-application .
consultation by the Commission would
conflict with the existing regulatory
scheme. Finally. § 1502.10,
Recommended format is not proposed
for adoption because the staff has
evolved a format for EIS's which is
proposed in 5 380.9. Section 1502.11(e),
which requires an abstract, has not been
included because it is not used and its
purpose is fulfilled by the summary in
proposed 5 380.9(b). Section 1506.7.
Further guidance, has been omitted
because it refers solely to actions to be
taken by CEQ.
The Commission proposes to
implement some CEQ provisions. These
are § 1502£(cX3) (how to make a
supplemental EIS part of the record.
9 380.7{d)); § 1505.1 (environmental
decisionmaking, by the regulation as a
whole and by § 3WX7); {1506J(e)
(where to get environmental
information, i 38021): and 81507J(b)
(environmental study categories,
§§ 380.4,380.5, and 380.6).
Some of the provisions of the CEQ
regulations are proposed to be adopted,
but with modifications as noted in
S 380.3(b). These provisions include
§ 1501.4{e) (preparation of a FONSI).
The proposed language states that the
Commission may prepare a Finding of
No Significant Impact on the basis of an
Environmental Assessment or conclude
the analysis with the Environmental
Assessment if the analysis shows die
action has advene environmental
effects and the action is not approved.
This provides the agency with three
possible courses of action when an EA
has been performed rather than the two
that are contained in the CEQ.
regulations. Under the CEQ regulations.
an EA must be followed either by a
FONSI or an Environmental Impact •
Statement (40 CFR 1501.4(e)). The
Commission believes that a third
procedure is warranted.
Section 1502.7. Page limits, is modified
to refer to the EIS format as proposed in
§ 38O9 instead of the format contained
in 40 CFR 1502.10.
Section 1502.13,. Purpose and need of
EIS, is modified to reflect the fact that
for most applications die purpose which
the staff is evaluating is the purpose as
given by the applicant
In ! 1502.14(e) (identification of -.
preferred alternative) die wording has
been changed to reflect the fact that th«
Environmental Impact Statement
contains the staffs preferences
regarding alternatives rather than the.
agency's. The Commission or its
designees would specify their choice
upon consideration of the EIS and other
relevant information.
Section 1505.2(c) has been modified to
make the inclusion of monitoring and
enforcement programs in the record of
decision discretionary rather than
mandatory. As stated previously, the
Commission believes the monitoring
function is present in many of the
Commission's regulations and
procedures.
V. Regulatory Flexibility Act
Certification
The Regulatory Flexibility Act of 1980
(RFA), S U.S.C. 601-812, requires certain
analyses of proposed agency rules that
will have a "significant economic impact
on a substantial number of small
entities." Pursuant to section 805(b) of
the RFA, the Commission hereby '
certifies that the reproposed NEPA
regulations* if promulgated, would not
have a significant economic impact on a
substantial number of small entities.
These rules are procedural in nature
and, moreover, insofar as they affect
members of the public and impose ,
obligations on them, merely reflect .-
requirements already in place in pvipHng
statutes and regulations.
VL Paperwork Redaction Act Statement
The reproposed rule, for the most part,
either reiterates or references reporting
and filing requirements that are already
in existence. The OMB control numbers
for these requirements start with the
designation 1902- and are as follows: for
S ZBO and § 242*0128; for Part 4.
Subpart D. 0073; for Part 4, Subpart E,
0058; for Part 4. Subpart F, 0058; for Part
4. Subpart G. 0115; for Part 4. Subpart H.
0115; for 5 4.81,0073; for Part 4, Subpart
1,0115; for Part 4. Subpart K, 0115: for
Part 4, Subpart L. 0058 and 0115. The
control number for ft 157.206 is 1902-
0060.
The proposed ink wiH be submitted
to the Office of Management and Budget
(OMB) for clearance under the
Paperwork Redaction Act 44 U.SXL
3501-3504 and OMB's regulations, 5 CFR
1320.13 (1985). Cooanents on tne
information collection requests of this
proposed rule can b> sent to the Office
of Information and Regulatory Affairs of
OMB, New Executive Office Building,
Washington. DC 20S03 (Attention: Desk
Officer for tha Fadml Energy •
Regulatory Commission);
VII. CoBBinent Procedure
The Commission invitee interested
parties to submit written comments on
the matters proposed in this notice. An
original and Mcopiec of such comments
must ba filed with toe Commission no
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20329
later than July 28,1987. Comments
should be submitted to the Office of the
Secretary, Federal Energy Regulatory
Commission, 825 North Capitol Street,
NE., Washington, DC 20426, and should
refer to Docket No. RM87-15-000,
Written comments will be placed in
the public files of the Commission and
will be available for inspection at the
Commission's Division of Public
Information, Room 1000,825 North
Capitol Street, NE., Washington, DC
20426, during regular business hours.
List of Subjects
18CFRPart2
Environmental impact statements.
18 CFR Part 380
Environment, National Environmental
Policy Act.
In consideration of the foregoing, the
Commission proposes to amend
Subchapters A and W of Chapter L Title
18, Code of Federal Regulations, as set
forth below.
By direction of the Commission.
Commissioner Staion concurred with a
separate statement to be issued later.
Lois D. Casbell,
Acting Secretary.
PART 2—(AMENDED)
1. In Part 2, the authority citation
continues to read as follows:
Authority: Department of Energy
Organization Act 42 U.S.C. 7101-7352 (1982);
Executive Order No. 12,009,3 CFR 142 (1978);
Federal Power Act. 16 U.S.C. 792-825r (1982);
Natural Gas Act 15 U.S.C. 717-717w (1982);
Natural Gas Policy Act of 1978,15 U.S.C.
3301-3432 (1982); Public Utility Regulatory
Policies Act of 1978,16 U.S.C. 2801-2645
(1982); and the National Environmental Policy
Act 16 U.S.C 4321-4361 (1978), unless
otherwise indicated.
2. Part 2 of Subchapter A is amended
by amending §2.80(b) to remove all but
the first sentence of paragraph (b); by
removing 5i 2.80(c). 2.81,2.82, and
Appendix A; and by redesignating
Appendix B as Appendix A of Part 380.
Redesignated Appendix A is amended
by removing the first paragraph of
numbered guideline (8); by removing
from numbered guideline (2) the words
"the Commission's Order No. 415-C
(issued December 18,1972) amending
S§ 2,80-2.82," and inserting in lieu
thereof the words "Part 380"; by
removing from numbered guideline (3) in
Redesignated Appendix A the term
"5 2.82(a)", and inserting in lieu thereof
the term "§ 380.8" in both places; and by
revising the title of Redesignated
Appendix A to read "Appendix A—
Guidelines for the Preparation of
Environmental Report for Applications
under the Natural Gas Act, as specified
in § 308.8."
3. Subchapter W is amended by
adding a new Part 380 to read as
follows:
PART 380—REGULATIONS
IMPLEMENTING THE NATIONAL
ENVIRONMENTAL POLICY ACT
Subpart A—General Provisions
Sec.
380.1 Purpose and definitions.
380.2 Adoption of CEQ regulations as noted.
380.3 Portions of CEQ regulations adopted,
modified, or implemented.
Subpart B—Environmental Assessments,
Environmental Impact Statements, and
Categorical Exclusion*
380.4 . Actions that require an Environmental
Assessment.
380.5 Actions that require an Environmental
Impact Statement
380.6 Categorical exclusions.
Subpart C—Environmental Decisionmaking,
Environmental Information, and
Environmental Impact Statement Format
380.7 Environmental decisionmaking.
380.8 Environmental information to be
supplied by applicant
380.9 Format for Environmental Impact
Statement
Subpart D—Additional Provisions
380.20 Participation in Commission
proceedings.
380.21 Public access to information and
documents.
380.22 Additional discretionary means of
Notice of Availability of an
Environmental Assessment or a Finding
. of No Significant Impact
380.23 Additional means of notice of
availability of an EIS.
Authority: National Environmental Policy
Act of 1969,42 U.S.C. 4321-4347; Department
of Energy Organization Act; 42 U.S.C. 7101-
735% Executive Order 12009,3 CFR 142
(1978). - ,
Subpart A—General Provision* ,,
§ 380.1 Purpose and definition*.
(a) The National Environmental Policy
Act (NEPA) of 1969 (42 U .S.C. 4321 et
seq.) establishes national policies and
goals for the protection of the
environment Section 102(2) of NEPA
contains certain procedural
requirements directed toward the
attainment of such goals. In particular,
all Federal agencies are required to give
appropriate consideration to the
environmental effects of their proposed
actions in their decisionmaking and to
prepare detailed environmental
statements on recommendations or
reports on proposals for legislation and
other major Federal actions significantly
affecting the quality of the human
environment.
(b) In addition to the definitions in 40
CFR Part 1508, the terms listed below
have the following definitions:
(1) DEIS— Draft Environmental Impact
Statement.
(2) FEIS— Final Environmental Impact
Statement.
(3) FONSI— Finding of No Significant
Impact.
(4) Environmental Report or ER— that
part of an application submitted to the
Commission by an applicant for
authorization of a proposed action
which includes information concerning
the environment, the applicant's
analysis of the environmental impact of
the action, or alternatives to the action
required by this or other applicable
statutes or regulations.
§380.2 Adoption of CEQ regulations as
noted.
The Federal Energy Regulatory
Commission hereby adopts the
regulations issued by the Council on
Environmental Quality (CEQ) for
implementing the procedural provisions
of NEPA. 40 CFR Parts 1500-1508, with
the exceptions, modifications and
additions in this part.
§380.3 Portion* of the CEQregutation*
adopted, modified, or Implemented.
(a) The following portions of the CEQ
regulations, 40 CFR Parts 1500-1508 are
adopted:
§1500.2 (Policy)
§1500.5 (Reducing delay)
§1501.1 (Purpose)
§ 1501.2 (Apply NEPA early in the process),
,.,.
§ 1501.3 (When to prepare an environmental
assessment)
§1501.5 (Lead agencies)
§ 1501.8 (Cooperating agencies)
S 1501.7 (Scoping)
§15013 .4Time limits)
§ 1502.1 -^{Purpose [of Environmental Impact
Statement))
§ 1502£ (Implementation)
§ 1502.3 (Statutory requirements for
statements)
§ 1502.4 (Major federal actions requiring the
. preparation of environmental impact
• ' ^statements)
§ 1502.6 (Interdisciplinary preparation)
§.1502* (Writing)
§ 15025 (Draft final, and supplemental
statements), (a), (b). (c)(l), (cXZ). and
(cK4)
§ 1502J1 (Cover sheet). (9). (b). (c). (d). and
(I)
§1502.12 (Summary)
§ 1502.15 (Affected environment)
S 1502.18 (Environmental consequences)
§1502.17 (last of preparen)
§1502.18 (Appendix)
§1502.19 (Circulation of the EIS)
§1502^0 (Tiering)
§ 1502^1 (Incorporation by reference)
§ 150&22 (Incomplete or unavailable
information), (a) and (b)
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rule*
11502,23 (Cast-benefit analysis)
I150Z24 (Methodology and scientific
accuracy)
{150225 (Environmental review and
consultation requirements)
Part 1503 (Commenting)
115053 (Implementing the decision)
{1506.1 (Limitations on actions during
NEPA process)
{ 1506,2 (Elimination of duplication with
State and local procedures)
i 1500.3 (Adoption of other agencies'
environmental documents)
§ 1506.4 (Combining documents)
i 15065 (Agency responsibility)
S 1508.6 (Public involvement), (a), (b). (c).
(d).and(f)
115063 (Proposals for legislation)
i 1506.9 (Filing requirements)
i 1506.10 (Timing of agency action)
i 1500.11 (Emergencies)
i 1507.3 (Agency procedures), (c). (d), and
(e)
Part 1503 (Definitions)
(b) The following portions of the CEQ
regulations, 40 CFR Parts 1500-1508, are
adopted with modifications:
(1) Reducing paperwork (9 1500.4).
Agencies shall reduce excessive
paperwork by:
(1) Reducing the length of
environmental impact statements
(9 1502,2(c)). by means such as setting
appropriate page limits (99 1501.7(bXl)
and 1502.7).
(H) Preparing analytic rather than
encyclopedic environmental impact
statements (§ 1502.2(a)).
(iil) Discussing only briefly issues
other than significant ones ({1502^(b)).
(iv) Writing environmental impact
statements hi plain language (f 1502JJ).
(v) Following a dear format foe
environmental impact statements
(§ 380.9).
(vi) Emphasizing the portions of the
environmental impact statement that are
useful to decisionmakers and the public
(951502.14 and 1502.15) and reducing
emphasis on background material
(9 1501.18).
(vi!) Using the scoping process, not
only to identify significant
environmental issues deserving of study,
but also to deerophasize insignificant
issues, narrowing the scope of the
environmental impact statement process
accordingly (51501.7).
(viii) Summarizing the environmental
impact statement (S 1502.12) and
circulating the summary instead of the
entire environmental impact statenent if
the latter is unusually long (| 1502.10).
(be) Using program, policy, or plan
environmental impact statements and
tiering from statements of broad scope
to those or narrower scope, to eliminate
repetitive discussions of die same issues
(99150Z4 and 150&20).
(x) Incorporating by reference
(§ 1502^1).
(xi) Integrating NEPA requirements
with other environmental review and
consultation requirements (91502.25).
(xii) Requiring comments to be as
specific as possible (91503.3).
(xiii) Attaching and circulating only
changes to the draft environmental
impact statement, rather than rewriting
and circulating the entire statement
when changes are minor (91503.4(c)J.
(xiv) Eliminating duplication with
State and local procedures, by providing
for joint preparation (91508.2), and with
other Federal procedures, by providing
that an agency may adopt appropriate
environmental documents prepared by
another agency (9150&3).
(xv) Combining environmental
documents with other documents
(91506.4).
(xvi) Using categorical exclusions to
define categories of actions which do
not individually or cumulatively have a
significant effect on the human
environment which are therefore exesspt
from requirements to prepare an
environmental impact statement
(91508.4).
(xvii) Using a finding of no significant
impact when an action not otherwise
excluded will not have a significant
effect on die human environment and is
therefore exempt from requirements to
prepare an environmental impact
statement (91508.13).
(2) Whether to prepare an
environmental impact statement
(915014). In determining whether to
prepare an environmental impact
statement the Federal agency shall:
(i) Determine under its procedures
supplementing these regulations
(described in 91507.3) whether the
proposal is one which:
(A) Normally requires an
environmental impact statement, or
(B) Normally does not require either
an environmental impact statement or
an environmental assessment
(categorical exclusion).
(ii) If die proposed action is not
covered by paragraph (b)(2Ki)of this.
section, prepare an environmental
assessment (f 1508.9). The agency shaft
involve environmental agencies,
applicants, and the pvboc, to the extent
practicable, in preparing assessments
required by 91S08.9(aHl).
(HiJ Based on (he environmental
assessment make Ms determination
whether to prepare an environmental
impact statement
(iv) Coissnfii™ the scoping process
(91501.7). if the agency wifl prepare an
environsaentai impact statement
(v) Prepare a finding of no significant
impact (91508.13). if the agency
determines on the basis of aw
environmental assessment that the
action will not have a significant effect
on the human environment or conclude
the environmental analysis with the
environmental assessment if the agency
does not approve the proposal
(A) The agency shall make the finding
of no significant impact available to the
affected public as specified hi 91508.0.
(B) In certain limited circumstances,
which the agency may cover hi Hs
procedures under 91507.3, the agency
shall make me finding of no significant
impact available for public review
(including State and areawide
clearinghouses) for 30 days before the
agency makes its final determination
whether to prepare an environmental
impact statement and before the action
may being. The circumstances are:
(1) The proposed action is, or is
closely similar to, one which normally
requires the preparation of an
environmental impact statement under
die procedures adopted by die agency
pursuant to f 1507.3. or
(2) The nature of the proposed action
is one without precedent
(3) Page limits (91502J). The text of
final environmental impact statements
(e.g., paragraphs (d) through (g) of
9 380.9) shall normally be less than lift
pages and for proposals of unusual
scope or complexity shall normally be
less than 300 pages.
(4) Purpose andneed\$ 1502.13). The
statement shall briefly specify the
underlying purpose and need to which
the agency is responding in proposing
the alternatives including the proposed
action or. tot applications other than
optional certificates for faculties under
9 9157.100-1S7.108 of this chapter, the
purpose and need, as started by the
applicant which the agency is
evaluating.
(5) Alternatives including the
proposed action (S 1502.14). This section
is the heart of the environmental impact
statement Based on the information and
analysis presented in the sections on the
affected environment (91SOZ1S) and the
environmental conseaaanres (f 1S02.16).
it should present the environsaentai
impacts of the proposal and the
alternatives fa cuatparative form, than
sharply defining the Isaacs and .
providing a dear basis far choice among
options by the iociilnasaaimraadtfae
public, fa thissacnon agendas shall-
(i) Rigorously cxptora and objectively
evaluate all n
for alternatives which
able alternatives, and
front detailed atady, briefly discuss the
reasons far their having bean
eliminated.
(ii) Devote substantial treatment to
each alternative consider in detafl
inctomng the proposed action so that
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
20331
reviewers may evaluate their
comparative merits.
(iii) Include reasonable alternatives
not within the jurisdiction of the lead
agency.
(iv) Identify the agency staff's
preferred alternative or alternatives, if
one or more exists, in the draft
statement and identify such alternative
'in the final statement unless another law
prohibits the expression of such a
preference.
(v) Include appropriate mitigation
measures not already included in the
proposed action or alternatives.
(6) Record of decision in cases
requiring environmental impact
statements (51505.2). At the time of the
decision (§ 1506.10) or. if appropriate, its
recommendation to Congress, each
agency shall prepare a concise public
record of decision. The record, which
may be integrated into any other record
prepared by the agency, including that
required by OMB Circular A-85
(Revised), part I, sections 6 (c) and (d),
and part n, section 5(b)(4), shall:
(i) State what the decision was.
(ii) Identify all alternatives considered
by the agency in reaching its decision,
specifying the alternative or alternatives
which were considered to be
environmentally preferable. An agency
may discuss preferences among
alternatives based on relevant factors
including economic and technical
considerations and agency statutory
missions. An agency shall identify and
discuss ail such factor* innlnrfing any
essential considerations of national
policy which were balanced by the
agency in making its decision and state
how those considerations entered into
its decision.
(iii) State whether all practicable.
means to avoid or minimize
environmental harm from the alternative
selected have been adopted, and if not,
why they were not A monitoring aad
enforcement program may be i
and summarized when applicable for
any mitigation.
(7) Agency ability to comply
(§ 1507.2). Each ageaey shall be capable
(in terms of personnel and other
resources) of complying with the
requirements enumerated below. Such
compliance may include use of other's
resources, but the using agency shaft
itself have sufficient capabffity to
evaluate what others do for it Agencies
shall:
(i) Ftdftfl the requirements of section
10Z(Z)(A) of the Act to utilize a
systematic, interdisciplinary approach
which will insure the integrated use of
the natural aad social ecieBees and the
environmental design arts in planting
and to deciskmmaidpg which may have
an impact on the human environment
Agencies shall designate a person to be
responsible for overall review of agency
NEPA compliance.
(ii) Identify methods and procedures
required by section 102(2)(B) to insure
that presently unquantified
environmental amenities and values
may be given appropriate consideration.
(iii) Prepare adequate environmental
impact statements pursuant to section
102{2)(C) and comment on statements in
the areas where the agency has
jurisdiction by law or special expertise
or is authorized to develop and enforce
environmental standards.
(iv) Study, develop, and describe
alternatives to recommended courses of
action in any proposal which involves
unresolved conflicts concerning
alternative uses of available
resources.Thi8 requirement of section
102(2)(E) extends to all such proposals,
not just the more limited scope of
section 102(2)(C)(iii) where the
discussion of alternatives is confined to
impact statements.
(v) Comply with the requirements of
section 102(2)(H) that the agency
initiates and utilize ecological
information in the planning and
development of resource-oriented
projects.
(vi) Fulfill the requirements of sections
102(2)(F), 102{2)(G), and 102(2)(I), of the
Act
(c) The following portions of the CEQ
regulations. 40 CFR Parts 1500-1508. are
implemented by these regulations:
Section SO£9(cK3). ptocadaies for
introdutiag supplMMntal OS's into the
record, by S 380.7(4):
Section 1505.1(aHe). agency
decfcionHtiaking procedures, paragraph (a) by
this regulation and paragraphs fbH«) by
1380.7;
Section isoae(e), wbm to get tafenution
on the NEPA process, by {Sean:
Section 15O7.3(H classes of actis**. by
5f 38OA, 3»5 and 380A
SubpsrtB—Envfr
ntsl
Assessments, Environmental Impact
Statements, and Categorical
AnEmJFomnental AsujueinusU wfll be
prepared fertile actions identified fa
this section.
(a) Except as identified ia ftf MfcS(a)
and 380.6ja) of this part and f 2£S of
mis chapter, authorization under section
7 of the Nataral Gas Act far the
construction, replacement or
abandonment of compression.
processing, or interonsaectiag faculties,
onshore aad ofSsfcore pipelines, metering
facilities. LNG peak-shaving faoifitiM. or
other facilities necessary for the sale,
exchange, storage, or transportation of
natural ^as;
(b) Prior notice filings under 1157.208
of this chapter for the rearrangement of
any facility specified in 51157.202 (b)(3)
and (6) or the acquisition, construction,
or operation of any eligible facility as
specified in i 157182 (aX2) and (3fc
(c) Abandonment or redaction of
natural gas service under section 7 of
the Nataral Gas Act not excluded under
|380.6(aX21)or(2g);
(d) Except as identified m i 380.5(a) of
this section, conversion of existing
depleted oil or natural gas fields to
underground storage fields under
section 7 of the Natural Gas Act;
(e) New natural gas curtailment plans
or any amendment to an existing
curtailment plan under section 7 of the
Natural Gas Act and sections 401-404 of
the Natural Gas Policy Act of 1978 that
has a major effect on an entire pipeline
system;
(f) Licenses under Part ! of the Federal
Power Act and Part 4 of mis chapter for
construction of any water power
project—existing dam:
(g) Licenses under Part I of the Federal
Power Act and Part 4 of this chapter for
construction of any owaastmcted water
power project {new dam) with a total
installed capacity of 20 MW or less;
(h) Exemptions under section 405 of
the Public Utility Regulatory Policies Act
of 1978, as amended, and |$ 430(bM27)
and 4.101-4.208 «f this chapter for small
hydroelectric power projects of 5 MW or
less;
(i) Licenses far additional project
works at licensed-projects under Part I
of the federal fewer Act whether or not
these are styled license amendments or
original licenses;
U) Licenses asKier Parti of the Federal
Power Act and Pact 4 ef this chapter for
(k) Applications farmewlicenses
under sectten ISof the Federal Power
Act;
(M Approval of eJeotrte
•sH0COOHHBCIlOBB ABfll ^VOOQBBR ttQdBiT
smiles* «lft). tM. 211. aad «2 of me
Federal Power Act mat exdeded under
(a) Except as provided in paragraphs ,
(b)easl(c)ofthisaectioa.aaEISwfflbe
prepared as specified fa iJeoa of tab
(l)Aotaeris»aoa
of the Natural Gas
srr1inni»or7
t for construction
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20332
Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
and operation of jurisdictional liquefied
natural gas import/export facilities used
wholly or in part to liquefy, store, or
rcgasify liquefied natural gas
transported by water;
(2) Certificate applications under
section 7 of the Natural Gas Act to
develop an underground natural gas
storage facility except where depleted
oil or natural gas producing fields are
used;
(3) Major pipeline construction
projects under section 7 of the Natural
Gas Act using right-of-way where there
is no existing natural gas pipeline; and
(4) Licenses under Part I of the Federal
Power Act and Part 4 of this chapter for
construction of any unconstructed water
power project with a total installed
capacity of more than 20 MW.
(b) If the Commission or its staff
believes that a proposed action
identified in § 380.5(a) may not be a
major Federal action significantly
affecting the quality of the human
environment, an EA rather than an EIS
will be prepared.
(c) An EIS will not be required if an
EA indicates that a proposal has
adverse environmental effects and the
proposal is not approved.
§380.6 Categories! exclusion*.
(a) General rule. Except as stated in
paragraph (b) of this section, an EA or
an EIS will not be prepared for
(1) Procedural, ministerial, or internal
administrative and management actions,
programs, or decisions, including
procurement, contracting, personnel
actions, correction or clarification of
filings or orders, and acceptance.
rejection and dismissal of filings;
(2}(i) Reports or recommendations of
legislation not initiated by the
Commission; and
(ii) Proposals for legislation and
promulgation of rules that are clarifying.
corrective, or procedural, or that do not
substantially change the effect of
legislation or regulations being
amended;
(3) Compliance and review actions,
including investigations (jurisdictional
or otherwise), conferences, hearings,
notices of probable-violation, show
cause orders, and adjustments under
section 502(c) of the Natural Gas Policy
Actofl978(NGPA);
(4) Review of grants or denials by the
Department of Energy (DOE) of any
adjustment request, and review of
contested remedial orders issued by
DOE;
(5) Information gathering, analysis,
and dissemination;
(6) Conceptual or feasibility studies;
(7) Actions concerning the reservation
and classification of United States lands
as water power sites and other actions
under section 24 of the Federal Power
Act;
(8) Transfers of water power project
licenses and transfers of exemptions
under Part I of the Federal Power Act
and Part 9 of this chapter;
(9) Issuance of preliminary permits for
water power-projects under Part I of the
Federal Power Act and Part 4 of this
chapter;
(10) Withdrawals of applications for
certificates under the Natural Gas Act,
or for water power project preliminary
permits, exemptions, or licenses under
Part I of the Federal Power Act and Part
4 of this chapter;
(11) Actions concerning annual
charges or headwater benefits charges
for water power projects under Parts 11
and 13 of this chapter and establishment
of fees to be paid by an applicant for a
license or exemption required to meet
the terms and conditions of section 30(c)
of the Federal Power Act;
(12) Approval, for water power
projects under Part I of the Federal
Power Act, of "as built" or revised
drawings or exhibits that propose no
changes to project works or operations
or that reflect changes that have
previously been approved or required by
the Commission;
(13) Surrender of water power
licenses, preliminary permits, and
exemptions, and amendments to
licenses, preliminary permits, and
exemptions under Part I of the Federal
Power Act and Parts 4 and 6 of this
chapter, except as provided in § 380.4(1);
(14) Exemptions for small conduit
hydroelectric facilities as defined in
S 4.30 (b)(26) of this part under Part I of
the Federal Power Act and Part 4 of this
chapter;
(15) Electric rate filings submitted by
public utilities, establishment of just and
reasonable rates, and confirmation,
approval, and disapproval of rate filings
submitted by Federal power marketing
agencies under sections 205 and 206 of
the Federal Power Act;
(16) Approval of actions under
sections 4(b), 203,204,301,304, and 305
of the Federal Power Act relating to
issuance and purchase of securities,
acquisition or disposition of property,
merger, interlocking directorates,
jurisdictional determinations, and
accounting orders:
(17) Approval of electrical
interconnections and wheeling under
sections 202(b), 210,211, and 212 of the
Federal Power Act, that would not
entail:
(i) Construction of a new substation or
expansion of the boundaries of an
existing substation;
(ii) Construction of any transmission
line that operates at more than 115
kilovolts (KV) and occupies more than
ten miles of an existing right-of-way; or
(iii) Construction of any transmission
line more than one mile long if located
on a new right-of-way,
(18) Approval of changes in land
rights for water power projects under
Part I of the Federal Power Act and Part
4 of this chapter, if no construction or
change in land use is either proposed or
known by the Commission to be
contemplated for the land affected;
(19) Approval or proposals under Part
I of the Federal Power Act and Part 4 of
this chapter to authorize use of water
power project lands or waters for gas or
electric utility distribution lines,
telephone lines, storm drains, sewer
lines not discharging into project waters,
or water mains; piers, landings, boat
docks, or similar structures and
facilities; landscaping; or embankments,
bulkheads, retaining walls, or similar
shoreline erosion control structures;
(20) Action on applications for
exemption under section l(c) of the
Natural Gas Act;
(21) Approvals of blanket certificate
applications and prior notice filings
under 9157.204 and S 157.209 through
S 157.218 of this chapter;
(22) Approvals of blanket certificate .
applications under { 284.221 or § 284.224
of this chapter;
(23) Producers' applications for the
sale of gas filed under i 157.23-157.29 of
this chapter
(24) Approval of taps, meters, and
regulating facilities located within a
right-of-way where there is existing
natural gas pipeline under section 7 of
the Natural Gas Act company records
show the land use of the vicinity has not
changed since the original facilities
were installed, and no significant non-
jurisdictional facilities would be
constructed in association with
construction of the interconnection
facilities (See f 380.8(a)(2) and (c)(2)(iii)
for applicants' responsibility to file
environmental information); .
(25) Review of natural gas rate filings,
including any curtailment plans other
than those specified in S 380.4{e). and
establishment of Just and reasonable
rates for tcansportatioftand.Mie of
natural gas under sections14 and 5 of the
Natural Gas Act and sections 401-404 of
the Natural Gas Policy Act of 1978;
(28) Review or approval of oil pipeline
rate filings under Parts 340 and 341 of
this chapter;
(27) Sale, exchange, and.
transportation of natural gas under
sections 4, S and 7 of the Natural Gas
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Federal Register / Vol 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20333
Act that requires no construction of
facilities;
(28) Abandonment in place of minor
natural gas pipeline, or abandonment by
removal of minor surface facilities such
as metering stations, valves, taps, and
other tap-related facilities, under section
7 of the Natural Gas Act (see
§§ 380.8(a}(2) and (c)(2)(iii) for
applicants' responsibility to Hie
environmental information);
(29) Abandonment of service under
any gas supply contract pursuant to
section 7 of the Natural Gas Act
(30) Approval of filings made in
compliance with the requirements of a
certificate for a natural gas project
under § 7 of the Natural Gas Act or a
preliminary permit, exemption, license,
or license amendment order for a water
power project under Part I of the Federal
Power Act
(31) Any actions, that exclusively
involve socio-economic impacts.
(b) Exceptions to categorical
exclusions. In accordance with its-duty
of independent assessment under 40
CFR15063 and the provisions of
S 1508.4, the Commission and its staff
will independently evaluate
environmental information and, where it
is determined that an action may be a
major Federal action significantly
affecting the quality of the human
environment, the Commission or its
staff—
(1) May require an ER or other
environmental information and
(2) Will prepare an EA or an EIS.
Subpart C—Environmental
DecWormiatina, Environmental
Information, and Environmental
Impact ststoHMflt Format
§380.7 Environmental dedslonmaldna.
(a) Decision points. For the actions set
forth in S § 380.4 and 380.5 and for other
actions which may have a significant
affect on the quality of the human
environment, environmental
considerations will be addressed at
appropriate major decision points.
Major decision points in adjudication
are the approval or denial of proposals
by the Commission or its designees in
matters not set for hearing and the
initial and subsequent decisions of an
ALJ or the Commission in matters set for
hearing. In rulemaking, major decision
points are the Commission's decision to
issue a Notice of Proposed Rulemaking
and the issuance of a final rule.
(b) Environmental documents to be
considered. (1) Any ER, EA, FONSI,
DEIS, comment on an EIS, response to
comments, FEIS, and supplemental EIS,
to the extent a supplemental EIS is
available, will accompany the proposal,
including applications for certificates,
licenses and exemptions, and any
proposed rules and legislation other
than those identified in S 380.6{a)(2)
through existing agency review
processes so that all levels of the
Commission may use them in making
decisions.
(2) The Commission and its designees
will consider the alternatives described
in the DEIS or FEIS or other relevant
environmental documents in deciding
whether or not to approve actions.
(c) Environmental documents as part
of the record. The Commission will
include EIS's, EA's, and FONSTs as part
of the record in rulemaking and
adjudicatory proceedings as follows:
(1) In informal rulemaking proceedings
a draft EIS or an EA with a FONSI will
be part: of the record and will be
included or notice of its availability
given hi the notice of proposed
rulemaking. A final; EIS will be part of .
the record and notice of its availability
may be published prior to or
simultaneously with a decision on the
final rule. . ;
(2), In adjudicatory proceedings an ,
EIS, an EA. or a FONSI will be included
as evidence if offered and admissible.
(d) Supplemental Draft Environmental
Impact Statement and Final. •
Environmental Impact Statement as part
of the record A supplemental draft EIS
and supplemental final EIS will become
part of the record—
(1) In informal nilpmnking
proceedings as long as the rulemaking
proceeding is pending at the
Commission or pursuant to section 19(b)
of the Natural Gas Act, section 313(b) of
the Federal Power Act. or section 506 of
the Natural Gas Policy Act of 197ft
(2) In adjudicated proceedings either
during the proceeding, hi accordance
with paragraph (c)(2) of this section, or
pursuant to the procedures set forth hi
section 385.716 of this chapter. .
(e) Application denials.
Notwithstanding section* 380.4,380.5,
and 380,6 or any other sections of this
part, the Commission may deny an
application without performing an
Environmental Impact Statement or
without undertaking environmental
analysis.
$380* Environmental Information to be
(a) An applicant most submit
information as foHows:
(1) For any proposed action identified
in SS 380.4,380.5(a), 380.8(a){24) or
380.6(a)(28), an ER with the proposal as
prescribed in paragraph (c) of this
section; •
(2) For any proposal not identified in
section (a)(l) of this section, any
enviromental information that the
Commission may determine is necessary
for compliance with these regulations.
(b) An applicant must also make a
good faith effort to:
(1) Provide all necessary or relevant
information to the Commission;
(2) Conduct any studies that the
Commission staff considers necessary
or relevant to determine the impact of
the proposal on the human environment
and natural resources;
(3) Consult with appropriate Federal,
regional, state, and local agencies during
the planning stages of the proposed
action to ensure that all potential
environmental impacts are identified
(with regard to hydropower projects,
specific requirements are contained in
§ 4.38 of this chapter and hi section 4(a)
of the Electric Consumer Protection Act,
Pub. L. No. 99-195,100 Stat 1243,1246
(1986)).
(4) Submit applications for .all Federal
and state approvals as early as possible
in the planning process; and
(5) Notify the Commission staff of all
other Federal actions required for
completion of .the proposed action so
that the staff may coordinate with other
interested Federal agencies.
(c) Content of an applicant's ER for
specific proposals. (1) Hydropower and
other electric power projects. The
information required for applications
under Part 4 of this chapter, as
applicable.
(2) Natural gas projects.
(i) For any application filed under the
Natural Gas Act for any proposed action
identified in S 380.4 or 380.5(a), except
§ 380.4(b}—the information identified hi
Appendix A of this part.
(if) For prior .notice filings under
i 157.206, die report described by
S 157.208(cHll).
(ifl) For any proposed action listed in
§3ao.8(a)(24)or{28K
(A) A brief description of the reasons
the applicant believes the proposal
qualifies for categorical exclusion, and
(B) Any environmental information
the Commission or its staff may
determine is necessary for compliance
with these regulations or other Federal
laws such as the Endangered Species
Act the National Historic Preservation
Act or the Coastal Zone Management
Act
Statement
The following standard format for
Environmental Impact Statements will
be used unless there is a compelling
reason to do otherwise:
(a) Cover sheet
(b) Summary. .
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20334 Federal Register / Vol. 52, No. 103 / Friday. May 29. 1987 / Proposed Rules
(c) Table of contents.
(d) Purpose of and need for proposed
action.
(e) Alternatives including the
proposed action and no-action
alternative (sections 102(2)(C)(iii) and
102(2)(E) of the National Environmental
Policy Act).
(f) Affected environment.
(g) Environmental consequences
(especially sections 102(2)(C)(i), (ii), (iv),
and (v) of the National Environmental
Policy Act).
(h) Staffs conclusions, including
summaries of—
(1) The significant environmental
impacts of the proposed action;
(2) Any alternative to the proposed
action that would have a less severe
environmental impact or impacts and
the action preferred by the staff;
(3) Any mitigative measures proposed
by the applicant, as well as additional
mitigation measures that might be more
effective;
(4) Any significant environmental
impacts of the proposed action that
cannot be mitigated; and
(5} References to any pending,
completed, or recommended studies that
might provide base-line data or
Hildttional data on the proposed action.
(i) List of preparers.
(j) List of agencies, organizations, and
persons to whom copies of the
statements are sent
(k) Literature cited.
(1) Appendices (if any).
Subpart D—Additional Provisions
§384X20 Participation in CommiMkMi
proceedings.
(a) Motion to intervene. U) Any
person may file a motion to intervene in
a Commission proceeding other than a
rulemaking after publication of a notice
of availability of a DEIS as prescribed in
§ 385.214(b) (1) and (2) and (c) of this
chapter.
(2) A motion to intervene submitted
pursuant to this paragraph must be filed
within the time period for submitting
comments prescribed in the notice of
availability of the DEIS and must
specify grounds for intervention related
to the environmental issues in, or the
sufficiency of, the DEIS.
(3) Any person that is granted
intervention after petitioning under this
paragraph accepts the record as ,
developed by parties to that proceeding
as of the time that intervention is
granted.
(4) The right to move to intervene
prescribed in this section will be limited
to the environmental issues or
sufficiency of the DEIS.
(b) Rights and obligations of
participants in proceedings.-^.)
Informal rulemaking. Any person may
submit comments on the environmental
aspects of any informal notice and
comment rulemaking conducted by the
Commission pursuant to 5 U.S.C. 553.
Such comments must be submitted in
the manner and at such time as the
Commission prescribes in each
rulemaking.
(2) Draft EIS. Any person may submit
comments on a draft EIS. Such
comments must be submitted in the
manner and at such time as the
Commission prescribes in the notice of
availability of the draft EIS.
(3) Intervenors in on-the-record
proceedings.—(i) Issues not set for
hearing. In any on-the-record
proceeding, an intervenor that takes a
position on any environmental issue that
has not yet been set for hearing must file
a timely motion with the Secretary
containing an analysis of its position on
such issue and specifying any
differences with the position of
Commission staff or an applicant upon
which the intervenor wishes to be heard.
(ii) Issues set for hearing. (A) In any
on-the-record proceeding, any
intervenor that takes a position on an
environmental issue set for hearing may
offer evidence for the record in support
of such position and otherwise
participate in accordance with the
Commission's Rules of Practice and
Procedure. Any intervenor must specify
any differences from the staffs and the
applicant's positions.
(B) To be considered, any facts or
opinions on an environmental issue set
for hearing must be admitted into
evidence and made part of the record of
the proceeding.
(c) Contested issues in Commission
proceedings. Any environmental issue
that is set for hearing under the
Commission's primary jurisdictional
statutes will be adjudicated exclusively
by Commission decision, and any
judicial review of such decision
provided by law. Any person wishing to
participate in an on-the-record
evidentiary proceeding as part of the
Commission decisionmaking process
may seek to intervene in the proceeding
as an interested party under §§ 380.20(a)
or 385.214 of this chapter.
§380.21 Public access to Information and
documents.
(a) Information. The Commission will
make information or status reports on
an EIS and other elements of the NEPA
process available to interested persons
through the Commission's Public
Reading Room and Public Reference
Section.
(b) Documents. (1) The Commission
will make EIS's the comments received,
and other environmental documents
available to the public through the
Commission's Public Reading Room and
Public Reference Section, 825 North
Capitol Street, ME., Room 1000,
Washington, DC 2042&
(2) Materials made available will
include interagency memoranda to the
extent that those memoranda transmit
comments of Federal agencies, on the
environmental impact of the proposed
action. Materials will be provided to the
public without charge to die extort
practicable, or at a fee that is not more
than the actual cost of reproducing
copies.
(3) A copy of an EIS or EA may be
made available for inspection at the
Commission's regional office for the
region in which the proposed action
would occur.
§38022 AddHtomi dtaeretJonary means of
notice of avaHaMMy of an Environmental
Assessment or a Ftodtog of No Significant
Impact.
In addition to the means of notice
specified in 40 CFR 1506.6(b)(3) for
actions with effects primarily of loc~.l
concern, the Commission may give
notice of availability of an EA or a
FONSI in a Commission order.
§39023 Additional means of notice of
avaftabHHyofanEIS.
If the EPA fails to publish notice of
availability of an EIS under 40 CFR
1506.10(a) within 15 days of the filing of
the EIS with EPA pursuant to 40 CFR
150&9, the Commission will publish such
notice. The mfarimnm time periods set
forth in 40 CFR 1508.10 will be
calculated from the date of publication
of this notice. - • .
[PR Doe. 87-11706 Piled 5-28-87; 8:45 am]
SttJJNO COM <717-ei-M
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Friday
May 29, 1987
Part II
Environmental
Protection Agency
40 CFR Parts 260, 264, 265, 270, and 271
Liners and Leak Detection for Hazardous
Waste Land Disposal Units; Notice of
Proposed Rulemaking
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
1
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,264,265,270, and
271
[FRL-3187-9]
Liners and Leak Detection for
Hazardous Waste Land Disposal Units
AGENCY: Environmental Protection
Agency.
ACTION; Notice of proposed rulemaking.
SUMMARY: Under the authority of
sections 3004(a) and 3004(o}(4) of the
Resource Conservation and Recovery
Act (RCRA), EPA is proposing rules
requiring new landfills, surface
impoundments, waste piles, and land
treatment units for the treatment,
storage, or disposal of hazardous waste
to utilize an approved leak detection
system. EPA is also proposing that
certain existing land disposal units
utilize an approved leak detection
system. In today's proposed rule, the
Agency is also proposing double liners
and leachate collection and removal
systems above and between the liners
for new waste piles, and replacements
and lateral expansions of existing waste
piles in parallel with minimum
technology requirements for landfills
and surface impoundments.
Today's proposal also requires the
installation of double liners and
leachate collection and remoyal system
for significant unused portions of
existing.unit* at hazardous waste
landfills, waste piles, and surface
impoundments-In addition, double
liners and leachate collection and
removal systems are being proposed for
certain new units, and lateral
expansions andTreplacements of existing
units at landfills, waste pHes, and
surface impoundments at facilities-
permitted before November 8,1984.
Under today's proposal, owners or
operators would be required to develop
a construction quality assurance
program for certain landfills, surface
impoundments, and waste piles, as well
as for construction of final covers at
land treatment units.
DATES: The Agency will consider all
comments received on or before July 28,
1987, before taking final action on the
proposed rule. A public hearing will be
held beginning at 9:30 a.m., June 19,1987
in Washington, DC. Proposed effective
dates for the various provisions are
listed in the SUPPLEMENTARY
INFORMATION section.
ADDRESSES: (1) Hearings—The public
hearing will be held at the North
Conference Area, Room 3, U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC to receive
public comments on the proposed rule.
Anyone wishing to make a statement at
this hearing should write to Bill
Richardson, Office of Solid Waste (WH-
562), U.S. Environmental Protection
Agency, 401 M Street SW., Washington,
DC 20460. The hearing will begin at 9:30
a.m. with registration at 9:00 a-m. The
hearing will end at 4:30 p.m. unless
concluded earlier. Oral and written
statements may be submitted at the
public hearing. Persons wishing to make
oral presentations must restrict them to
15 minutes and are encouraged te
submit written copies of their complete
comments for inclusion in the official
record.
(2) Written Comments^The public
must send one original and two copies
of their comments to tin following:
address: EPA RCRA Docket (WH-562),
401M Street SW.. Washington. DC
20460. Comments should be identified by
regulatory docket reference eod»F-«7-
CCDP-FFFF. The docket is open from
9:30 a.m. to 3:30 p.m. Monday througa
Friday, except for Federal hokd«ys~Th«
public must make an appointment to
review docket materials and should caQ
Michelle Lee at (202) 475-9327 for
appointments. The public may eopj at
no cost a maximum of 50 pages of
material from any one regulatory docket.
Additional copies cost $.20 per page.
F0» FUflTHER INFORMATION: For general
information, call the RCRA/SupeHttsd
Hotline, (800} 424-9346 toll-free or 382-
3112 in Washington, DC.
For information on the techattsal
aspects of timr proposed rule, contact
Walter DeRieax, Disposal TedSnologj
Section, Waste Management Di*isiaB,
Office of SoEd Waste (WH-565Bfc U.S.
Enviroameatot Protection Agency, 401M
Street SW., Washington, DC-2OM&
(202)382-485*.
SUPPLEMENTARY INFORMATION:.
Preamble Outline
I. Authority
n. Background
m. Overview of Today's Proposal Kcfe
A. Authority
B. Liquid* Management Strategy-
C. Summary of Today's Proposed Rule for
Landfills, Surface Impoundments, and
Waste Piles
D. Summary of Today's Proposed Rate fee
Land Treatment Units
E. Integration with Double Liner and
Leachate Collection and ReawvaTSgsdeai
Requirements
IV. Systems Approach
V. Section-by-Section Analysis ofPmpMt£
Rule
A. Leak Detection System
1. Background
a. Introduction
b. Objectives of the Leak Detection
System
c. Rationale of the Proposed Leak
Detection Standards for Surface
Impoundments, Landfills and Waste
Piles
2. Proposed Rule for Surface
Impoundments, Waste Piles, and Landfill
Units
a. Detection Capability
b. Action Leakage Rate
c. Response Action Plan
3. Proposed Rule for Land Treatment
Units
a. Permitted Facilities
b. Interim Status Facilities
c. Demonstrations
B. Extension of Double Liner Requirements
t. Waste Piles
a. Background
b. Proposed Rule
2. Significant Portions
a. Background
b. Proposed Rule
3. New Units, Replacement Units, and
Lateral Expansions of Units at Facilities
Permitted Before November 8,1984
a. Background
b. Proposed Rule
C. Construction Quality Assurance (CQA)
Program
1. Background
2. Proposed Rule
a. The Construction Quality Assurance
(CQA) Program
b. The Construction Quality Assurance
(CQA) Plan
c. Construction Quality Assurance
Documentation
d. Managing of the Construction
Quality Assurance Program
D. Permit Application
E. Applicability to Hazardous Waste Tank
Systems
VI. State Authority
A. Applicability of Rules in Authorized
States
B. Effect of State Authorizations
VII. Regulatory Requirements
A. Executive Order 12291
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
VOL Supporting Documents
IX. List of Subjects
ftoposed Effective Dates for Today's
fkapoul
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24 nw*» aftor
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
20219
Provision
—New landWIs, gurface im-
poundment*, and waste pfcw
and lateral expansion* and
replacements of KndNfe,
waste p*ea. and surface im-
poundments at facfttiea per-
mitted before November 8,
t964.
Construction quality assurance
program tor certain land dto-
posat units.
Proposad effective dale
8 monthe attar
promulgation.
12 months after
promulgation.
I. Authority
The regulations established under this
rulemaking will be issued under
authority of sections 3004,3005, and
3015 of the Solid Waste Disposal Act, as
amended fay the Resource Conservation
and Recovery Act, as amended, 42
U.S.C. 6924, 6925, and 6936.
H. Background
On October 21,1978, Congress
enacted the Resource Conservation and
Recovery Act (RCRA) to protect human
health and the environment and to
conserve material and energy resources.
In Subtitle C of the Act, EPA is directed
to promulgate regulations that identify
hazardous waste and to regulate
generators and transporters of
hazardous waste and facilities that
treat, store, or dispose of hazardous
waste.
Under Section 3004 of RCRA. owners
and operators of treatment, storage, and
disposal facilities (TSDFs) are required
to comply with standards "necessary to
protect human health and the
environment" Since enactment of
RCRA, EPA has promulgated interim
status and permitting standards
governing the design, operation, and
maintenance of landfill, surface
impoundment waste pile, and land
treatment faculties used to treat, store,
or dispose of hazardous wastes.
Regulations that established the major
components of these standards were
issued on May 19,1980 (45 PR 33221);
these were the first national standards "
that defined acceptable management
practices for hazardous waste. These
standards included Part 285
requirements applicable during the
interim status period and Part 264
requirements applicable to permitted
units.
On July 26,1982 (47 PR 32274). EPA
promulgated technical and permitting
standards under Part 264 for landfills,
waste piles, surface impoundments, and
land treatment units. These regulations
consisted of a set of design and
operating standards separately tailored
for each type of unit The design and
operating standards required landfills,
surface, impoundments, and waste piles
to have a liner and leachate collection
system lo^revent migration of wastes to
the subsurface soil or to ground water or
surface water during the active life of
the unit. The standards required
unsaturated zone monitoring and a
treatment demonstration for land
treatment units.
On November 8.1984, amendments to
RCRA entitled the Hazardous and Solid
Waste Amendments (HSWA) were
signed into law. HSWA adds additional
technological requirements to the design
standards for land disposal units. The
new Section 3004(o)(l)(A) of RCRA
added by HSWA requires new landfills
and surface impoundments, each new
landfill and surface impoundment unit at
existing facilities, and each replacement
or lateral expansion of a landfill or
surface impoundment at existing
facilities for which a permit is issued
after November 8,1984, to install two or
more liners and a leachate collection
system above (for landfills) and
between the liners. Under Section
3004(o)(2), the minimum technology
requirements set forth in Section
3004(o)(l)(A) will not apply if the owner
or operator successfully demonstrates '
that alternative design and operating
practices together with location
characteristics will prevent the
migration of any hazardous constituents
to ground water or surface water at
least as effectively as such liners and
leachate collection systems. Section
3004(o](3) sets forth a variance from the
minimum technology requirements for
certain monofills.
Section 3004(o)(4)(A) of RCRA
requires EPA to issue standards by May
8,1987 requiring new landfills, surface
impoundments, waste piles, land
treatment units, and underground tanks
to use approved leak detection systems.
The statute defines an approved leak
detection system as a system or
technology that is capable of detecting
leaks of hazardous constituents at the
earliest practicable time. For the
purpose of implementing the leak
detection provision. Section
3004(o)(4)(B}(ii) defines new units as
units on which construction begins after
the date of promulgation of the final
rule.
On July 15.1985, EPA issued a final
rule (50 FR 28702) to amend the existing
hazardous waste regulations to reflect
those statutory provisions of HSWA
that took effect immediately or shortly
after enactment This rule incorporated
into the existing hazardous waste
regulations the Section 3004(oKl)(A}
regulations, requiring certain permitted
and interim landfills and surface
impoundments to have double-liners and
leachate collection systems. The July 15,
1985 regulations set top liner standards
that could be met by a flexible
membrane liner (FML), and bottom liner
standards that could be met by three-
feet of compacted soil or other natural
materials with a permeability of no
more than 1 x 10~7 cm/sec. In the
Proposed Codification Rule of March 28,
1988, EPA proposed amendments to
these double liner and leachate
collection system requirements. The
March 28,1986 proposal sets forth two
designs for double liner systems. One
design consists of FML top liner and a
composite bottom liner consisting of a
FML underlain by a low permeability
soil layer, such as clay. The alternative
design entails using a FML top liner and
a clay bottom liner.
On July 14.1986 (51 FR 25422), EPA
promulgated regulations under RCRA
Sections 3004(o)(4} and 3004(w) for tank
systems storing or treating hazardous
waste. Since that rule contains leak
detection requirements for underground
tanks, today'? proposal will not address
underground tanks. However, relevant "
issues to tank regulations (Le.. teak
detection design standards, and
construction quality assurance (CQA))
are discussed in Section VJL
HI. Overview of Today's Proposed Ride
A. Authority
The requirements in today's rule are
being proposed under the authority of
different sections of RCRA. In
accordance with Section 3004(o)(4) of
HSWA the Agency is today proposing
leak detection requirements. That
section requires the Agency to
promulgate standards requiring new
landfill units, surface impoundment
units, waste piles, and land treatment
units that treat store or dispose of
hazardous wastes to have approved
leak detection systems or "a system or
technology which the Administrator
determines to be capable of detecting
leaks of hazardous constituents at the
earliest practicable time."
In order to meet this statutory
mandate, the Agency is proposing to
require new landfills, surface
impoundments, and waste piles to
design, construct and implement a leak
detection system capable of detecting
leakage of hazardous constituents at the
earliest practicable time ovsr all anas
likely to be exposed to waste and
leachate during the active life and post-
closure care period of the unit As
discussed more fully below, the Agency
believes that for these units, the existing
leachate collection and removal system
between the liners (LCRS) with some
additional modifications m the terms of
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
design and performance criteria best
satisfies the statutory criteria for leak
detection. By relying on the LCRS
between the liners as the primary
mechanism for detecting, the Agency is
assured that the owner or operator will
detect leaks through the top liner before
hazardous constituents migrate out of
the unit. The Agency believes that this is
the earliest practicable time to detect
such leaks.
For new land treatment units, the leak
detection system being proposed today
expands upon the existing Part 264
unsaturated zone monitoring
requirements. These provisions
currently require the owner or operator
of a land treatment unit to conduct
monitoring activities at specified
intervals for hazardous constituents
below the treatment zone. As discussed
more fully below, the Agency is
proposing to modify these provisions to
further increase the capability of the
existing unsaturated zone monitoring
program to detect migration of
hazardous constituents from the land
treatment zone. By requiring an
improved unsaturated zone monitoring
program at specified intervals, the
Agency believes that any leakage from a
land treatment unit will be detected at
the earliest practicable time in
accordance with the Section 3004(o]f4)
mandate.
All other requirements in today's rule
are proposed under EPA's general
authority to promulgate regulations for
hazardous waste management facilities
under Section 3004(a) of RCRA, Section
3004{a) requires EPA to promulgate
regulations "as may be necessary to
protect human health and the
environment" Specifically, the
requirements proposed under Section
3004(a) of RCRA are:
1. Response activities (action leakage
rate and response action plan) for new
landfills, surface impoundments, waste
piles, and land treatment units and for
replacements and lateral expansions of
existing landfills and surfa'ce ~ • '
impoundments which received a RCRA
permit after November 8,1964.
2. Double linen add leachate
collection and removal systems for new
surface impoundments and landfills, and
replacements and lateral expansions of
existing surface impoundments and
landfills at facilities which received a
RCRA permit prior to November 8,1984.
3. Double liner and leachate collection
and removal systems for new waste
piles and replacements and lateral
expansions of waste piles at RCRA
permitted facilities.
<4v Double liners and leachate
collection and removal systems for new
interim status waste piles, and with
respect to wastes received after the
effective date of today's rule,
replacements and lateral expansions of
existing interim status waste piles that
are within the waste management area
identified in the Part B permit
application.
5. Double liners and leachate
collection and removal systems for
significant portions of existing surface
impoundments, waste piles, and
landfills.
6. Leak detection and response
activities for existing land treatment
units.
7. Construction quality assurance
requirements.
Essentially, today's proposal
increases the level of technological
control at land disposal units by
requiring double liners and leachate
collection and removal systems, a
construction quality assurance program.
and owner or operator initiated
response activities. These increased
levels of technological control are
necessary to adequately protect ground
water.
Double Liner Requirements
The Agency's ground-water protection
strategy is based on two components—
the imposition of sufficient technological
controls (Le., liner and leachate
collection and removal systems) and
monitoring and corrective action
responsibilities. The ultimate goal of
such a strategy is to prevent hazardous
constituent migration from the land
disposal unit into the environment
Originally, the Agency thought that a
single liner and a leachate collection
and removal system along with
corrective action would provide
sufficient protection of the environment
Accordingly, in 1982 in Agency
promulgated single liner and leachate
collection and removal systems for land
disposal units. (See 47 PR 32274. July 28,
' 1982) for a complete discussion of how.
these requirements adequately protect
groundwater).
In 1984, Congress required new
landfills and surface impoundments and
lateral expansions and replacements of
existing landfills and surface
impoundments at facilities permitted
after November 8,1984 to install double
liners and a LDCRS. (Section 3004(o)(l)
of HSWA). By requiring double liner
systems for these landfills and surface
impoundments. Congress obviously
voiced dissatisfaction With the
application of the single liner
requirements to these units. '
Although Congress did not apply the
double liner requirements to other land •
disposal units, the Agency has
subsequently collected data which
shows that double liner systems are
warranted for other new land disposal
units replacements and lateral
expansions.
As discussed more fully in the
background document, the Agency has
developed models assessing hazardous
constituents migration into the
environment from land disposal units.
As a result of these models, it is evident
to the agency that single-lined units
allow substantially greater migration
into the environment of hazardous
constituents than would double-lined
units. While the Agency could rely on
corrective action to dean up releases of
hazardous constituents into the
environment from single lined units, it is
less costly and more effective to prevent
ground-water contamination by
imposing adequate technological
controls rather than to rely on cleaning
up such contamination after the fact
The technologies for detecting and
remedying ground-water contamination
are not completely reliable in all cases;
Unique and heterogeneous
hydrogeologic settings can maka if
difficult to site monitoring wells, and
detect releases. Cleanup technologies
are new and have .not been tested for all
wastes in all settings. Moreover, the
expense of these cleanup activities
raises the possibility that owners or
operators may not be able to pay for
corrective actions, forcing the Agency to
consider spending Superfund monies to
accomplish the cleanup; Because of
these uncertainties, the Agency believes
it is more effective to prevent
constituents from migrating into ground
water in the first place. Therefore, die
Agency believes that the imposing
double liner and leachate collection
removal systems for certain new units,
replacements, and lateral expansions,
the Agency Is assuring protection of
human health and the environment by
protecting ground Wale* from th* .
The Agencyii not proposing to;require
ornerexlstuig land disposal-units to .
adopt such double-liner requirements
because in ordeHo meet these s ' • •:
requirements, an existing unit would
need to excavate or remove all
hazardous wastes. Besides being
impractical, the removal of hazardous
wastes could also pose •"substantial
environmental threat '
Response, Activities - . v-
Under today's program, die Agency is
requiring the owner or operator of . '
certain disposal units to conduct • •
response activities (enclosingthe '
urdts. repairtag the le A) wttenleakage
above a certain rate is discovered, • ;
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Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules
2O221
Although under Section 3004{o){l) of
HSWA, Congress mandated that EPA
promulgate leak detection requirements
for certain land disposal units, Congress
was silent with regard to the
appropriate response activities when
leakage is detected at these units. EPA
believes that it is critical that the owner
or operator promptly initiate response
activities when leakage above a certain
rate is detected, therefore, the Agency is
promulgating these response
requirements under our general Section
3004(a) authority.
The goal of the response action
program is to prevent the migration of
hazardous constituents at levels
exceeding health based standards for
ground-water protection. Under today's
proposal, the owner or operator will
develop, and the Regional Administrator
will approve, a RAP that effectuates this
goal. Once the RAP has been approved,
the owner or operator is expected to
implement the RAP when leakage above
a designated rate occurs. The Agency
believes that it is necessary to require
the owner or operator to initiate a
response when certain levels of leakage
occur because by requiring response
actions promptly, the owner or operator
is better able to minimize any
environmental damage that may occur
from migration of hazardous
constituents out of the unit We believe
that since we are requiring owners or
operators to detect leaks at the earliest
practicable time, it makes sense to
require early responses to those leaks.
The prevention of leachate migration
from the unit in levels exceeding health
based standards for ground-water
protection will obviate the need for
corrective action because corrective
action is tied to releases exceeding
these standards. Since, it is less
burdensome and more effective to
prevent ground water contamination
rather than to rely on corrective action,
the Agency believes today's proposed
response activity plan is necessary to
protect human health and the
environment
Construction Quality Assurance
Program
The Agency is today proposing to
require owners and operators of certain
treatment, storage, and disposal units to
construct these units in accordance with
design specifications and criteria. The
purpose of the construction quality
assurance program is to prevent
hazardous constituent migration into the
environment from hazardous waste
management units. As discussed more
fully below, studies conducted by the
Agency demonstrate that construction
related problems during liner system
installation constitutes one of the major
sources of liner system failure.
Therefore, the Agency believes that in
order to ensure that liners operate as a
barrier to prevent hazardous constituent
migration from the unit, it is necessary
that the Agency require owners and
operators of hazardous waste disposal
units to conduct a construction quality
assurance program.
B. Liquids Management Strategy
The fundamental goal of EPA's
hazardous waste management
regulations is the protection of human
health and the environment To fully
understand the relationship of today's
proposal to the hazardous waste land
disposal regulatory program
promulgated on July 26,1982. the
"liquids management strategy" must be
considered. This strategy as it pertains
to landfills, surface impoundments, and
waste piles, will be discussed herein.
Land treatment units will be discussed
in Section D below.
EPA believes that in order to protect
human health and the environment, a
fundamental goal of RCRA regulations
must be to minimize, to the extent
achievable, the migration into the
environment of hazardous constituents
placed in land disposal facilities. One
element of EPA's strategy for achieving
this goal is the liquids management
strategy for land disposal facilities.
There are two aspects of the liquids
management strategy: the minimisation
of leachate generation in the unit and
the removal of leachate from the unit
First, the generation of leachate is
minimized through the use of design
controls and operational practices such
as a run-on control system capable of
preventing the flow of liquid onto the
active portion of the unit the placement
of a cap on the unit at closure, and the
restriction of liquid waste in landfills.
Second, the removal of leachate is
maximized by requiring leachate
collection and removal systems above
(for landfills and waste piles) and
between the liners. Today's proposal
focuses on leachate removal.
The Agency views leachate collection
and removal systems as the principal
means of removing liquids from units.
Although a liner is a barrier to prevent
migration of liquids out of the unit no
liner can be expected to remain
impervious forever. As a result of waste
interaction, environmental effects, and
the effects of construction processes and
operating practices, liners eventually
may degrade, tear, or crack and may
allow liquids to migrate out of the unit
(47 FR 32284. July 28,1982). Because
generation of leachate cannot be
eliminated completely during the active
life and post-closure care period of a
land disposal facility, leachate removal
is essential to prevent subsurface
migration (47 32313, July 26,1982). For
example, in a double liner system,
measures must be taken to remove
liquid that migrates through the top
liner, thereby preventing hazardous
constituents from migrating through the
bottom liner and into the environment
For facilities that clean close, the
liquids management strategy is
addressed by removing or
decontaminating waste residues through
the site-specific closure plan. The
closure requirements ensure protection
of human health and the environment by
requiring that leachate migration from
waste residues not present a hazard.
The alternative closure rule for certain
surface impoundments and waste piles
proposed on March 19,1987, also
implements the liquids management
strategy by requiring the owner or
operator to demonstrate that leachate
migration after closure will not present a
threat to human health or the
environment The site-specific
assessment of leachate migration for
controlled conditions enables EPA to
allow some leachate migration out of the
facility and still be protective of ground
water and surface water.
Today, the Agency is proposing teak
detection performance, and design
criteria that will result in increased
liquid removal and collection for
landfills, surface impoundments and
waste piles. Moreover, depending upon
site-specific circumstances relating to
the leakage, the Agency will require the
owner or operator to take certain
actions to prevent migration of
hazardous constituents out of the units
to the extent practicable.
Today's proposed rule, therefore.
helps to implement the liquids
management strategy. The land disposal
system elements function in an
integrated and interdependent manner
along with a construction quality
assurance program to prevent leachate
migration out of the unit bymaximizing
its collection and removal. The liners
serve as a barrier to leaehate migration
and facilitate Its collection and removal;
the leachate collection and removal
system (LCRS) above the top liner in
landfill* minimizes the buildup of liquid
pressure on the top liner, the LCRS
system between die liners serves to .
reduce the buildup of head on the
bottom linen and the leak detection
system notifies the owner or operator of
leakage through the top nnez, which may
in turn require the owner and opera tor
to implement certain response actions to
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
prevent migration of hazardous
constituents from the unit.
C. Summary of Today's Proposed Rule
for Landfills, Surface Impoundments,
and Waste Piles
Today's proposed rule establishes:
• Leak detection requirements that
result in detecting leaks "at the earliest
practicable time."
• Requirements for response actions
to certain detected leakage to prevent
hazardous constituent migration out of
the unit in excess of EPA-approved
health based standards for ground-
water protection.
• Double liners and LCRS
requirements for certain land disposal
units that are not currently required to
be double lined.
• Construction quality assurance
requirements for owners and operators
of hazardous waste management
facilities to ensure that land disposal
units are constructed as designed.
Each of the elements of today's
proposed rule is discussed briefly below:
1. Leak Detection Requirements for
Newly Constructed Landfills, Surface
Impoundments, and Waste Piles
Under today's proposal, owners or
operators of all newly constructed
landfills, surface impoundments, and
waste piles are required to design,
construct, operate, and maintain a
system capable of detecting leakage of
hazardous constituents at the earliest
practicable time over all areas likely to
be exposed to waste and leachate
during the active life and post-closure
care period of the unit (see Sections
2B4.221(g), 265.221(f), and conforming
amendments to Subparts L and N of
today's rules]. In addition to this
narrative standard, the Agency is also
proposing specific performance and
design standards for an approved leak
detection system for these units.
Essentially, the leachate collection
and removal system (LCRS)
requirements proposed by die Agency
on March 28,1968 (Sections 284.221(c)(3)
285.221(a)(3) and conforming
amendments to Subparts L and N] form
the basis of today's proposed leak"
detection requirements. However,
today's rule proposes to modify these
LCRSs by specifying the following
design criteria: a minimum bottom slope.
drainage layer hydraulic conductivity
and transmisaivity, and a sump of
appropriate size to collect and remove
liquids efficiently. Additionally, the
system must be capable of detecting a-
specified leak within a certain time
period and must be able to collect and
remove liquids rapidly to minimize head
on the bottom liner (see Sections
264.221(h), 265.221{g) and conforming
amendments to Subparts L and N of
today's rule). In lieu of meeting these
requirements, the owner or operator
may receive a variance for an
alternative system that meets certain
specifications (Sections 264.221(1),
265.221(h) and conforming amendments
to Subparts L and N).
In addition to the design criteria
discussed above, the owner or operator
must establish an action leakage rate
(ALR) during the design of the unit. The
ALR is the rate of leakage from the top
liner into the LCRS that triggers
interaction between the owner or
operator and the Agency to determine
the appropriate response action for the
leakage. The ALR proposed today
consists of a range between 5 and 20
gallons per acre per day. In the final
rule, the Agency intends to select a
value within that range as the
appropriate ALR.
When the leakage from the top liner
exceeds the ALR, the owner or operator
is required to implement the appropriate
site-specific response activity for
leakage. Therefore, the Agency is also
proposing today that the owner or
operator develop a response action plan
(RAP) which consists of an assessment
of the reason for leakage, the current
conditions of the unit components (e.g.,
bottom liner and leachate collection and
removal system), the potential for
migration out of the unit of hazardous
constituents at levels exceeding health-
based standards, and an assessment of
the effectiveness of various responses.
Under today's proposal, the time
when a RAP must be submitted depends
upon the rate of the leakage. For rapid
and large leakage, the owner must
submit a RAP before the unit receives
waste. For leakage that exceeds the
ALR, but is less than rapid and large, a
RAP must be submitted no later than 90
days after the ALR is exceeded. The
RAP proposed by the owner or operator
must be reviewed and approved by the
Regional Administrator (RA). During
this time (from determination of
exceedance of the ALR to
implementation of the RAP) the owner
or operator continues to operate the unit
and collect and remove leachate.
2. Leak Detection requirements for
Certain Existing Landfill and Surface
Impoundment Units . •
As discussed previously, Section
3004{o)(l)(A) of RCRA imposes double
liner and leachate collection system
requirements for new landfills, surface
impoundments, and lateral expansions
and replacements of existing landfill
and surface impoundment units at
facilities for which a permit is issued
after November 8,1984. The Agency is
proposing today that units constructed
prior to the effective date of this rule
which must meet these requirements use
their existing LCRS between the top and
bottom liners as a leak detection system.
Owners and operators of these units will
not be required to modify the design of
their existing leachate collection
systems. However, they will be required
to develop an ALR appropriate for the
existing unit and to initiate a response
action plan as discussed in the above
section.
3. Double Liner and Leachate Collection
Requirements for Certain Landfills and'
Surface Impoundments
The Agency proposed double liner
and leachate collection system
standards for new landfills and surface
impoundments and lateral expansions
and replacements of existing landfill
and surface impoundment units at
facilities for which a permit was issued
after November 8,1984. The Agency is
proposing under the authority of Section
3004(a) of RCRA to extend these
requirements to new waste piles, and
lateral expansions and replacements of
existing waste piles where construction'
begins six months after promulgation of
today's rule. EPA is also proposing.
under the authority of Section 30O4(a) of
RCRA, to extend these requirements to
significant portions at existing landfills
and surface impoundments and to new
landfills and surface impoundments and
lateral expansions and replacements of
existing units at facilities permitted
before November 8,1984.
a. Double liners and leachate
collection and removal systems for
waste piles. The Agency is proposing
that six months after promulgation of
today's proposed rule, owners and
operators must install double liners and
leachate collection systems for new
waste piles, and lateral expansions and
replacements of existing waste piles
effective date of today's rule. Today's
proposed rule applies to all waste piles,
regardless of the date of permit
issuance. As a result of this proposed
rule, these waste piles will have
technological requirements equivalent to
those at designated landfills and Surface
impoundments. The Agency believes" '
that, in order to protect human health" /',','
and the environment it is critical that
waste pile* be provided protection ~ ^
equivalent to that provided at landfills
and Surface impoundments, because the
potential for leachate migration from a
waste pile can be similar to^otgreater _.
than that from A landfill for an
equivalent time period. Waste piles
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Federal Register / Vol. 52, No. 103 / Friday. May 29. 1987 / Proposed Rules
20223
generally have a longer active life,
usually are not covered, and are more
prone to liner damage from heavy
equipment than landfills. As a
consequence, double liners and LCRSs
above and between the liners are being
required by today's proposal.
Owners or operators of permitted and
interim status waste piles may seek the
same variances as those allowed to
owners and operators of landfills and
surface impoundments under 40 CFR
264.221 (d) and (e) and 264.301 (d) and
(e). To receive a variance, the owner or
operator must demonstrate that
alternative design and operating
practices, together with location
characteristics, will prevent the
migration of any hazardous constituent
into the groundwater or surface water at
least as effectively as the proposed
liners and leachate collection system.
The owner or operator may also receive
a variance for a monofill under 40 CFR
264.251(e). Additionally, owners or
operators of totally enclosed waste piles
that meet the requirements of Section
264.250(c) are exempt from the double
liner and leachate collection and
removal system requirements under
today's rule.
b. Double liners and leachate
collection system requirements for
significant unused portions of existing
landfills, surface impoundments, and
waste piles. Under today's proposal
existing units at interim status and
permitted facilities must install double
liners and leachate collection and
removal systems on significant portions
of those unlined areas upon which
waste has not been placed 24 months
after promulgation. EPA takes the
position that double liners should be
installed at significant unused portions
of existing units where the opportunity
to do so is the same as for new units.
This action reduces the potential for
adverse human health and
environmental impacts by preventing
the migration of hazardous constituents
from the unit
c. Double liners for certain landfill
and surf ace impoundment units at
facilities permitted before November 8,
1984. Under Section 3004(a) of RCRA.
EPA is proposing that new landfills and
surface impoundments, and lateral
expansions and replacements of existing
landfill and surface impoundment units
at facilities permitted before November
8,1984, will be required to have double
linen and leachate collection and
removal systems (LCRS). Today's
proposal will apply, to units at these
facilities that begin construction 6
months after the date the final rule is
published in the Federal Register. The
potentfajtfor migration,^ hazardous
constituents from these'units is the same
as for units at facilities permitted after
November 8,1984. Because units
permitted after November 8,1984 are
required to have double liners and
leachate collection systems, the Agency
believes it is appropriate to require new
landfills and surface impoundments, and
lateral expansions and replacements of
existing landfills and surface
impoundments at facilities permitted
before November 8,1984, to also meet
these requirements. Note that as
discussed in the previous section, new
waste piles, and replacements and
lateral expansions of waste piles at
facilities permitted before November 8,
1984 must also meet these requirements.
There is, however, an exception to the
applicability of the requirements
discussed above. Under 40 CFR
264.221(f) and 264.251(f), the Agency is
proposing today to exempt certain
replacement surface impoundments,
landfills, and waste piles permitted
before November 8,1984, from the
double liner and leachate collection
system requirements. In essence, owners
or operators who demonstrate that they
have a single liner at a surface
impoundment or waste pile that
currently meets the Part 264 single liner
requirements and who have no reason
to suspect that the liner is leaking will
be exempt from the double liner and
leachate collection system requirements.
EPA takes the position that if the
owner or operator made a good faith
effort to satisfy single liner requirements
in effect at the time of permitting, it is
unreasonable to require the owner or '
operator to assume the expense of a
' new double liner system when the single
liner system is adequately working.
4. Construction Quality Assurance
Program for Landfills, Surface
Impoundments, and Waste Piles
Under Section 3004(a), today's
proposed rule requires a construction
quality assurance (CQA) program for
die following components of landfills,
surface impoundments, and waste piles:
foundations; low permeability soils;
FMLs; dikes; leachate detection,
collection, and removal systems; and
final covers. Under Sections 284.19 and
264.20, and 265.19 and 285.20, the owner
or operator must ensure that these
components meet or exceed all design
criteria, plans, and specifications.The
CQA requirements are implemented
through a CQA plan which is
specifically tailored for each unit The :
plan addresses activities such as
inspecting, monitoring, .and sampling for
the individual components.
The CQA plan must specify the unit-
specific procedures that the owner or
operator will use to comply with the
CQA requirements and to identify
implementation procedures for
construction and installation. For units
applying for RCRA permits, the CQA
plan must be submitted with the permit
application. For permitted facilities
desiring to construct new units, or to
laterally expand or to replace such
units, the plan must be submitted as a
permit modification (Section 264.20). For
interim status units, the owner or
operator is required to submit a plan for
approval prior to construction (Section
265.20).
The CQA plan is prepared at the
design stage and is implemented during
the construction and installation phase.
Today's proposal requires the owner or
operator to develop a CQA plan to be
submitted to the Regional Administrator
(RA) for approval prior to construction.
Under today's proposal, the owner or
operator is required to retain a
registered professional engineer to
implement the plan (Sections 264.20(a)
and 265.20(a)). A CQA report
documenting proper implementation of
the approved plan must be submitted to
the RA following construction (Section
40 CFR 264.20(g) and 26S.20(f)). Report
submission (both permitted and interim
status units) and approval (permitted
units only) is required before waste can
be received (with the exception of the
closure report). The RA will review and
approve the report within 30 days unless
the owner or operator is notified
otherwise. If the RA does not respond
within 30 days (permitted units only) the
report does not need to be reviewed and
approved. '
CQA serves to detect deviation from
the design caused by error or negligence
during the construction phase of a unit
and to allow for suitable corrective
measures before wastes are disposed in
the unit Without proper CQA, problems
with components (e.g., leachate
collection and removal system) due to
construction may not be discovered
until the component or system fails
during operation. Improper construction
has been cited as one of the major
causes of waste migration out of units.
Two studies conducted by EPA indicate
that proper CQA is extremely important
for successful perfoimance of liners,
covers, leachate collection systems, and
leak detection systems (see Liner/Leak
Detection Background Document). EPA
believes that the CQA program is an
integral part of the land disposal
requirements because it will provide a .
high degree of confidence that all
components are working as designed
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
when a unit is started up to receive
waste.
The objective behind the proposed
CQA program is directly related to both
pans of the liquids management
strategy: minimizing leachate generation
and maximizing leachate removal. To
ensure that the waste management
system will meet these goals, all
components of the total system must
function as designed; top and bottom
liners, leachate collection and removal
systems above and between the liners.
the leak detection system, and the final
cover. The CQA program will aid in
meeting these goals by ensuring the
quality of each component of the land
disposal unit.
D. Summary of Today's Proposed Rule
for Land Treatment Units
1. Leak Detection for Land Treatment
Un!!s
There are differences between land
treatment and waste disposal in a
landfill, waste pile, or surface
impoundment The land treatment
process involves waste biodegradation
in the upper layers of the soil and
reduction of constituent hazard levels
during the degradation process.
Treatment, storage, or disposal at a
landfill surface impoundment, or waste
pile relies on containing the hazardous
constituents (further description of
differences is provided in Section V).
Therefore, the Agency is proposing a
leak detection methodology for land
treatment units that differs from the
methodology proposed for landfills,
surface impoundments, and waste piles.
Under today's proposed rule, the
owner or operator of new and existing
land treatment units must comply with
the leak detection requirements within 6
months after the date the final rule is
published in the Federal Register.
The Agency is proposing that the
owner or operator meet the existing
unsaturated zone monitoring
requirements under Part 284 for both
new and existing land treatment units at
interim status and permitted facilities.
These requirements are the core of the
leak detection program for land
treatment units. EPA is proposing to
expand these requirements by requiring
the owner or operator to meet a 95-
percent monitoring confidence level for
detection of a significant increase of
hazardous constituents below the
treatment zone; to detect leaks at the
earliest practicable time; to monitor soil
and soil-pore liquid immediately below
the treatment zone; and to inspect
unsaturated zone monitoring equipment.
Under today's proposal, the owner or
operator cf new and existing units at
interim status or permitted facilities
must develop a response action plan
(RAP) for widespread leakage. This
must be prepared and submitted to the
RA for approval before waste can be
received at a new unit or, for existing
units, after the effective date of today's
rule. Owners or operators who discover
leaks that are less widespread are not
required to develop a RAP for the
following reason: The existing land
treatment provisions under Part 264
require that if the owner or operator
detects concentrations of constituents
statistically exceeding background
levels, appropriate operational controls
must be implemented, such as reducing
the waste application rate at the land
treatment unit
The owner or operator of a new
facility must address today's proposed
land treatment requirements in the
permit application. The owner or
operator of existing permitted land
treatment units must submit a permit
modification to the RA and implement
the revised unsaturated zone monitoring
program six months after promulgation
of the final rule. An owner or operator of
an interim status unit must have a
written unsaturated zone monitoring
plan that specifically sets forth the
responsibilities of the new leak
detection requirements and must
implement the plan six months after
promulgation of the final rule.
2. Construction Quality Assurance for
Land Treatment Units
Today's proposed CQA program for
land treatment units only addresses
covers. The owner or operator of such a
unit must ensure that the final cover
meets or exceeds all design criteria,
plans, and specifications in the permit
(for permitted units) or in the operating
record (for interim status units). The
CQA requirements applicable to covers
at land treatment units are the same
requirements applicable to landfills,
surface impoundments, and waste piles
as discussed in Section 4 above.
E. Integration With Double Liner and
Leachate Collection and Removal
System Requirements
Today's proposal has been developed
in conjunction with the double liner and
leachate collection system requirements
proposed March 28,1988 (51FR10706)
to modify the July 15.1985 rule (50 FR
28702). The March 28,1988 proposed
rules require new landfills and surface
impoundments and lateral expansions,
and replacements of existing landfills
and surface impoundments at facilities
which receive a RCRA permit after
November 8,1984, to have two or more
liners and a leachate collection system
above (for landfills) and between the
liners. The liner system proposed in
March 1986 comprises an FML top liner
and either a compacted soil (clay)
bottom liner or a composite bottom liner
consisting of a FML underlain by
compacted soil.
On April 17.1987, EPA issued
Hazardous Waste Management System;
Minimum Technology Requirements:
Notice of Availability of Information
and Request for Comments (52 FR
12566). That notice included data on the
two bottom liner designs proposed in
the March 28,1986 rule: Composite and
compacted soil. In the notice, the
Agency compared the leak detection
performance characteristics, leachate
collection efficiency, and the potential
for leachate migration into and out of
the two liner types. EPA requested
comments on the data presented in the
Notice. The comment period closes June
1,1987.
The April 17,1987 notice discusses the
deficiencies in the performance
expected of compacted soil bottom .
liners under most conditions. Under
most conditions soil bottom liners
cannot be considered best available
technology. Deficiencies of the
compacted soil liner include:
1. The compacted soil liner does not
maximize leachate removal in the LCRS
between the liners because the
compacted soil will absorb some of the.
liquid from the leachate collection
system between the linen. Therefore,
the absorbed leachate would not be
available for collection and removal by
the LCRS and may eventually migrate
out of the unit For a LCRS to remove
leachate rapidly, it must have two
characteristics: (1) High hydraulic
conductivity, and (2) relatively smooth
flow conditions. A compacted soil
bottom liner can decrease the hydraulic
conductivity of the LCRS by penetrating
the lower portion of the LCRS.
Moreover, because the surface of the
compacted soil is rougher than the
surface of the FML. the flow velocity in
the leak detection system (IDS) is
significantly reduced.
2. Under most conditions the
compacted soil liner will not allow leak
detection at the earliest practicable
time. The compacted soil absorbs liquid
leaking through the top liner and,
therefore, delays or reduces the
capability to detect leaks. The
compacted soil bottom liner is estimated
to have a leakage detection capability of
between 100 to 500 gallons per acre per
day while composite bottom liners have
a much more sensitive detection
capability ranging from 0.1 to 1 gallon
per acre per day.
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20225
3. The compacted soil bottom liner
encourages the buildup of higher liquid
pressures on the bottom liner by not
allowing for rapid drainage of liquid to
the sump. This increases the potential
for migration through the bottom liner.
In summary, the compacted soil
bottom liner has the capability of
absorbing rather than allowing for the
collection of large volumes of leachate,
and the absorbed constituents may
migrate out of the unit. Also, the
compacted soil bottom liner may not
provide for detection of leakage at the
earliest practicable time in most cases.
Based on the data presented in the
notice, EPA believes that the composite
bottom liner is, overall, a more effective
technology than a compacted soil liner.
Although the leak detection portion of
today's proposal is based on the use of
the composite bottom liner as the best
available technology for meeting the
statutory leak detection requirements,
the leak detection proposal does not
exclude the use of compacted soil liners
under unique site-specific
circumstances. This is because use of
the best available technology (i.e.,
composite bottom liners) may not be
necessary for protection of human
health and the environment in all cases.
Today's proposal allows for the use of
alternative leak detection systems, such
as one that may include a compacted
soil bottom liner, provided that it is
capable of meeting the detecting leaks
of hazardous constituents at the earliest
practicable time over atlireas likely to
be exposed to waste and leachate
during the active life and post-closure
care period. It may be possible that '
under certain site-specific conditions,
such as low rainfall, a compacted soil
bottom liner could be used. Further
discussion on this point is provided
under preamble Section V.A.2.a.(4).
IV. Systems Approach
In developing today's proposal, EPA
considered all of the design and
operating requirements for a land
disposal unit (i.e. the entire system)
rather than focusing on individual
components of the unit: The leachate
collection and removal system (LCRS)
(above and between the liners); the top
liner (FML); the bottom linen and the
cover. Figure 1 shows a schematic of a
typical double liner and leak detection
system for a landfill. The double liner
and leak detection system includes a top
and bottom liner and an LCRS above the
top liner and between the top and
bottom liners. Each component of the
system is designed to prevent ground-
water contamination. Therefore, some
redundancy is provided by requiring all
of these components in the land disposal
unit. EPA believes that although
individual component failures can occur,
the system remains intact unless a fatal
combination of failures occurs, which
has a very low probability. For example,
rainwater that breaches the cover will
be collected in the leachate collection
system above the top liner, and no liquid
will be allowed to build up on the top
liner. Thus, a breach in the final cover
will not necessarily result in a leak from
the unit.
The response action plan (RAP) for
leak detection is designed with the
integrated systems approach in mind.
Under this approach, the owner or
operator can make a site-specific
assessment to examine the size and
nature of the leak and the capability of
the whole system, as opposed to a single
component, to prevent migration of
hazardous constituents out of the unit.
Through this assessment the appropriate
response can be determined which will
meet the goal of protecting ground water
and surface water.
Leakage through the top liner above
the action leakage rate does not
automatically mandate that the top liner
be repaired because the Agency
believes that the bottom liner will most
likely impede liquid from migrating out
of the unit However, to ensure that this
is the case, the Agency is using the RAP
to assess the capability of the entire
system to deter migration of hazardous
constituents and to ensure the
appropriate response to achieve that
goal.
MLUNQ CODE (MO-SO-M
-------
SCHEMATKJ OF A DOUBLE LINER AND LEAK DETECTION SYSTEM
FOR A LANDFILL
Protect (vt
Soil or Cover
(optional)
Top Liner
(FML)
Bottom Composite
Liner
nn in 1
^J Drainage Material
A QOrainage Material
Primary Leschate
Collection and
Removal System
Secondary Leachate
Collection and
Removal System
BEING PROPOSED AS THE
LEAK DETECTION SYSTEM
Native Soil Foundation
Leachate
Collection
System
Sump
Upper Component
(FML)
Lower Component
(compacted soil)
.MUJNO,COOf*MO-
(Not to Scale)
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
20227
V. Section-By-Section Analysis of
Proposed Rule
A. Leah Detection System
1. Background
a. Introduction. Today, EPA is
proposing leak detection system (LDS)
standards for surface impoundment,
waste pile, land treatment, and landfill
units in 40 CFR Subparts K through N.
The proposed leak detection standards
combine performance and design
criteria.
The regulatory goal of preventing
groundwater contamination is achieved
in different ways with different types of
units. For land treatment units, the
existing standards require that
hazardous constituents be degraded,
transformed, or immobilized within the
treatment zone. Owing to the unique
features of the land treatment process,
these units are discussed separately in
Section V.A.3 of this preamble.
In today's proposed rule for surface
impoundments, waste piles, and
landfills, the Agency sets forth general
performance criteria for the leak
detection system that relate to detection
sensitivity and detection time. Since
there are many ways to achieve such
goals, detailed specifications are not set
forth in these rules. Rather, owners and
operators are free to select a design that
meets these performance criteria. EPA
has developed and will continue to
develop technical guidance documents
to assist owners or operators and
permitting authorities in evaluating the
appropriateness of various designs,
materials, and equipment
The proposal also sets forth specific
design criteria for the leak detection
system that owners or operators must
use as a minimum when designing a
system. Owners or operators are not
however, precluded from using more
stringent design criteria.
b. Objectives of the leak detection
system. The regulatory objectives of
today's proposed rule are to detect leaks
at the earliest practicable time (in
keeping with RCRA Section
3004(o)(4)(A)), to contain the leak within
the engineered structure of the unit to
prevent ground-water contamination
when technically feasible and thereby
obviate the need for corrective action.
Today's proposed leak detection
regulations have the following key
features:
(1) New and certain existing surface
impoundments and landfills must have a
leak detection system between the top
and bottom liner capable of detecting
leaks at the earliest practicable time.
(2) The technology-based standards
for the leak detection system and
bottom liner must be used to achieve the
detection capability required for a leak
detection system.
(3) The system must be able to detect
leaks over all areas exposed to waste
and leachate.
{4} The system must be operated
during the active life and post-closure
care period of the unit (if applicable).
(5) Response actions are required to
prevent migration of hazardous
constituents out of the unit to mitigate
the potential for groundwater
contamination.
c. Rationale of the proposed leak
detection standards for surface
impoundments, landfills, and waste
piles. On March 28,1988, the Agency
proposed leachate collection and
removal system requirements for surface
impoundments and landfills based on a
drainage layer technology (40 CFR
264.221{c) and 285.221(a) and conforming
amendments to Subpart N). The leak
detection system being proposed today
relies on the proposed drainage layer
technology requirements for leachate
collection and removal systems between
liners for surface impoundments and
landfills. EPA selected a drainage layer
technology as an approved leak
detection system for several reasons.
First such a system is a proven
technology that has been tested in land
disposal sites under extreme weather
and other unfavorable conditions, and
that works well over a long period of
time. Second, it is a highly reliable, low-
maintenance system. Third, the drainage
system is capable of detecting leaks in
all areas between the liners. Fourth,
because drainage layer technology is
currently the basis for the existing
leachate collection and removal
systems, it combines two important
functions, leak detection and leachate
removal. An additional advantage of
using the proposed leachate collection
and removal system between the liners
is that because of its bask capability to
detect leaks, an owner or operator can
continue to use the current design
approach to meet today's requirements
rather than developing new and
potentially incompatible design
concepts for the various components.
In selecting a leak detection system,
EPA evaluated other systems and
technologies including electrical
resistivity, time domain reflectometry,
acoustical emission monitoring, and
other innovative technologies. These
approaches were not selected for
today's proposal for the reasons
discussed below (for further information
see the Liner/Leak Detection
Background Document).
1. Electrical resistivity (ER) is a
geophysical technique whereby an
electrical current is introduced into the
ground by a pair of surface electrodes,
and the resultant potential field, as
measured by a second pair of
electrodes, is interpreted to detect
anomolies (leaks). For the purpose of
leak detection the current is passed from
an electrode within the land disposal
unit to an electrode outside the unit
The method has been tested on a 1-
acre single FML-lined surface
impoundment and shows promise for
detecting and locating leaks in this
situation. Generally, ER has had limited
application for the purpose of permanent
leak detection at land disposal facilities
to date; therefore, very little field data
are available.
ER has several drawbacks. If using
the electrode configuration as discussed
above. ER is only applicable in a
double-lined system where the bottom
liner is compacted clay or is a composite
that is also leaking. If the bottom FML is
intact it will not allow a current path to
be established between the electrodes.
For this reason ER may not generally be
applicable to double FML-lined units. ER
may be used to detect top liner leakage
in double fML-lined units by placing
one set of electrodes between the liners.
but wires and electrodes may corrode
during the active and post-closure life of
the unit Additionally, ER cannot be
used to evaluate the leakage rate but
instead only locates leaks. ER
applications to date have been
temporary ones. For permanent
applications the durability and
reliability of die ER system components
may be questionable and the burden
associated with continuous or semi-
continuous monitoring would be high.
ER shows promise, however, for
detecting the leak location at surface
impoundments known to be leaking and
for construction quality assurance
(CQA) verification on certain portions of
a liner such as die sump area.
2. Time domain reflectometry (TOR)
measures the electrical property
variations hi the material along a pair of
parallel transmission line conductors.
TDR is sensitive to sod moisture
content making it attractive for leak
detection. However, TDR has several
drawbacks: (1) It mast be installed in
sand with a moisture content low
enough to provide an adequate contrast
between unwetted and wetted sand, (2)
wires may. corrode, and (3) although a.
drainage layar of well-compacted
medium-to-line grained sand increases
horizontal dispersion of a teak, thus
increasing the TDR response, too much
fine sand rapidly attenuates die TDR
signal and is not desirable for drainage.
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Federal Register / Vol. 52, No. 103 / Friday. May 29. 1987 / Proposed Rules
3. Acoustic emission monitoring
(AEM) detects vibrations produced by
liquids leaking from a containment site
by using transducers. The technology
has not been proven at a full-scale site
and has several drawbacks: (1) Sensors
and wires may corrode during the active
life and post-closure care period of the
unit (2) AEM may not detect small leaks
or low velocity leaks where the flow is
not turbulent, and (3) AEM is sensitive
to background noises (for instance,
nearby equipment or machinery), and (4)
AEM is only reliable if it identifies leaks
within a few minutes of the leak's
occurance.
4. Other technologies were also
considered but were found to be
Inappropriate as a primary leak
detection system for landfills, surface
impoundments, and waste piles. These
technologies include lysimeters, seismic
measurements, electromagnetics, and
moisture blocks, all of which are still in
the field-testing stage and may provide
new technical capabilities under certain
conditions in the future (see Liner/Leak
Detection Background Document). On a
site-specific basis, the owner or operator
may request a variance from today's
leak detection requirements (Section
284.221 (i) and 285.221 (h) and
conforming amendments to Subparts L
and N) in order to install one or a
combination of these alternative
technologies.
Once a leak has been detected, there
Is a need for interaction between the
owner or operator and the Agency to
determine the appropriate response
action. The response action varies,
depending upon the site-specific factors
at the unit
The Agency believes that it may be
appropriate to require the owner or
operator to undertake certain response
activities when a leak above a
predetermined value, the action leakage
rate (ALR), is measured in the unit
(Sections 284.226(c)(l) and 28S.228(b){l)
and conforming amendments to
Subparts L and N). Therefore, EPA is
requiring the owner or operator to
initiate a response action plan (RAP]
when leakage in the sump exceeds the
ALR.
The Agency believes that an
appropriate response will vary
depending upon the size of the leak.
Therefore, in today's rules die Agency is
proposing more stringent response
activities for rapid and extremely large
leaks than for smaller leaks. In addition
to evaluating the size and nature of the
leak, the Agency will consider the
capabilities of the bottom liner and the
leachate collection and removal system
between the liners to determine an
appropriate response action.
EPA takes the position that rapid and
extremely large leaks require immediate
attention. Therefore, EPA is proposing
today that owner or operator prepare a
RAP for such leaks before receiving
waste at a unit. EPA believes lesser
leaks do not require immediate action,
and the response will be determined
through an interactive process between
EPA and the owner or operator,
generally occurring at the time the ALR
is exceeded.
Although not specifically required by
the minimum technological requirements
of HSWA, response activities are a
logical outgrowth of an approved leak
detection system. Moveover, such
activities are consistent with the
congressional intent underlying the leak
detection provisions. Congress
specifically noted that ground-water
contamination would be prevented in
most cases if leaks were detected at an
early time. See Congressional Record-
House, October 6,1983, page 8150.
Cleanup of ground water after it has
been contaminated with hazardous
waste can be expensive or technically
infeasible in some cases. The corrective
actions may involve pumping and
treating large volumes of contaminated
ground water for many years. The leak
detection program being proposed today
is designed to address leakage before it
can migrate out of the unit, thereby
allowing actions to be taken to prevent
ground-water and surface-water
contamination before it can occur. For
the above reasons, EPA believes that
the response action parts of the leak
detection standards are necessary to
prevent ground-water contamination
and provide protection of human health
and the environment
2. Proposed Rule for Surface
Impoundments, Waste Piles, and
Landfill Units
a Detection Capability—(1)
Overview—(a) Performance standards
and rationale. Based on the narrative
statutory language tif Section 3004(o)(4)
and its legislative history, today's
proposed rule requires owners or
operators of all newly constructed
surface impoundment, waste pile, and
landfill units to maintain a leak
detection system capable of detecting
hazardous constituent migration through
the top liner at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period. (See
Sections 26C221(g) and 265.221(0 and
conforming amendments to Subparts L
andN.)
Section 3004(o)(4)(A) requires a leak
detection system for all new landfills,
surface impoundments, and'waste piles.
Section 3004{o)(4)(B)(li) defines "new
unit" as a unit on which construction
will commence after the date that
today's rule is promulgated in final form.
A unit will also be considered a "new
unit" if operation has begun subsequent
to the promulgation of today's
regulations in final form. The current
definition of "commencing construction"
in Section 260.10 for an existing facility
will be used in today's proposal.
Therefore, an owner or operator will be
deemed to have "commenced
construction" of a unit if:
(1) The owner or operator has
obtained the Federal State, and local
approvals or permits necessary to begin
physical construction, and;
(2) Either a continuous on-site
physical construction program has
begun, or, the owner or operator has
entered into contractual obligations that
cannot be cancelled or modified without
substantial loss for physical
construction of the unit to be completed
within a reasonable time.
EPA is proposing that the leak
detection system extend over all areas
likely to be exposed to waste or.
leachate (Sections 284.22l(g) and
265.221(f) and conforming amendments
to Subparts L and N). This proposed
requirement is consistent with the
minimum technology double liner
requirements under Section 3004(o) for
surface impoundments and landfills. The
minimum technology requirements call
for placement of two or more liners with
a leachate collection and removal
system above (in the case of landfills)
and between the liners, which is
designed,'constructed, operated, and
maintained to prevent leachate
migration out of the 'unit EPA has
interpreted these statutory provisions as
necessitating double liners and leachate
collection and removal systems under
all areas likely to be exposed to waste
or leachate (51FR 28708). this
interpretation Is consistent with EPA's
current regulatory practice regarding the
design of liners and leachate collection
and removal systems. Accordingly, to
collect all potential leakage through the
tap liner, tke leak detection system must
extend under all areas likely to be
exposed to waste or leachate.
Today's 'proposed rule also requires
the leak detectiori system to operate
effectively through the active life and
post-closure ciire period of the unit
(Sections 264.221(g) and 265.221(f) and
conforming amendments to Subparts L
and N). This is consistent with the
proposed minimum technology double
liner system requirements (40 CPR
284.221(c) and 265.221{a) and conforming
amendments to Subpart N). These
requirements call for a double liner
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2OS29
system designed to prevent leachate
migration out of the unit during the
active life and post-closure care period.
By requiring a leak detection system
with similar operating life requirements,
there will be a mechanism for
monitoring double liner system
performance for the entire active life
and post-closure care period (if
applicable).
Sections 264.221(g) and 26S.221(f) and
conforming amendments to Subparts N
and L of today's proposal also require a
system that can detect leakage that
migrates through the top liner into the
space between the liners at the "earliest
practicable time." The term "earliest
practicable time" refers to the time after
liquid has passed through a breach in
the top liner until the time that a
technology-based standard leak
detection system can detect the liquid.
A leachate collection and removal
system between the liners that employs
a drainage layer technology will provide
the most reliable, durable, and efficient
system to satisfy the leak detection
system performance standard. A
drainage layer technology can provide
100 percent coverage under all areas
that may be exposed to waste or
leachate, requires little maintenance, is
reusable, and provides a response
mechanism (liquid collection and
removal) at the same time the leak is
being detected. This technology can
provide continuous and accurate
monitoring of top liner leakage through
the active life and post-closure care
period.
In addition to these technical reasons,
this approach also has the advantage
(for surface impoundments and landfills)
of allowing the owner or operator to use
the existing ieachate collection and
removal system between the liners, with
only limited design modifications, for
the leak detection system. This enables
the owner or operator to use the current
design approach to meet today's
requirements rather than to develop new
and potentially incompatible design
concepts for the various components. It
also minimizes additional operational
and cost requirements associated with
implementing a new leak detection
system.
In developing today's proposal, EPA
considered whether or not to establish
the leak detection system below the
bottom liner. The Agency rejected this
option because it is inconsistent with its
"liquids management strategy." Under
this strategy the first line of defense in
preventing ground- and surface-water
contamination is to detect top liner
leaks early enough to control the leak
.while the liquid is still in the unit We
believe that it is preferable to detect
leaks from the top liner before leachate
from the top liner migrates through the
bottom liner. "--._.
Moreover, locatingjthe leak detection
system below the bottom liner would be
inconsistent with the bottom liner
performance standard of preventing
hazardous constituent migration through
the bottom liner. If a leak were detected
below the bottom liner, there would be
no backup liner to prevent ground-water
contamination until the bottom liner
leak is fixed. Instead, when the leak
detection system is located between the
top and bottom liners, the bottom liner
acts as a barrier to allow leachate
collection while the owner or operator
performs a review and assessment of
the leakage and implements, if
necessary, a response action.
Based on these considerations, EPA is
proposing to require the leak detection
system to be located adjacent to and
below the top liner and above the
bottom liner. The Agency believes that
using a leachate collection and removal
system between the liners provides the
best locational option for the leak
detection system because: (1) All newly
constructed landfills and surface
impoundments falling under RCRA
3004(o)(l) will already have leachate
collection and removal systems between
the top and bottom liners and (2)
detection of leakage that passes through
the top liner will allow time to
implement a response action well before
leakage poses a threat to ground water.
EPA is today soliciting comments on
the proper location for a leak detection
system in a unit that contains more than
two liners. As an example, a surface
impoundment may have three liners,
with leachate collection and removal
systems between the top and middle
liners and also between the middle and
bottom liners. Under today's proposal,
the leak detection system would be
located above the bottom liner. For the
surface impoundment example,
therefore, the leak detection system
would consist of the leachate collection
and removal system between the middle
and bottom liners. EPA requests
comments on the appropriateness of this
proposed requirement for systems that
contain more than two liners.
In today's proposal, EPA has striven
to develop leak detection system
performance standards for the LCRS
between the liners that not only comply
with the statutory narrative
requirements of Section 3004(o)(4) to
detect leaks at. the earliest practicable
time, but also provide the level of
protection of human health and the. .
environment consistent with that
inherent, in the minimum technology
double liner requirements of Section
3004(o)(l). The Agency's position is that
it can achieve these objectives in the
regulations for leak detection systems
through two related leak detection
system performance criteria: (1) Leak
detection sensitivity and (2) leak
detection time. These criteria will be
discussed in detail subsequently in this
preamble. The numerical values for
these criteria are based on the best
available technology (BAT) for
composite bottom liners and leachate
collection and removal systems.
Although today's proposal does not
require that the leak detection system be
able to detect the exact location of a
leak in a top liner, this capability may
be cost-effective for the owner or
operator to install The cost
effectiveness of installation will depend
on the unique features of each unit, such
as the type of unit, operational status of
the unit, type of top and bottom liner
systems, and the design of the leachate
collection and removal system. Even
though installing a leak detection system
with this capability may initially cost
more, rapidly locating a leak can save
time and resources when response
measures for the liner are needed.
However, we are not proposing
detection of the exact location of a leak
because with EPA's systems approach
to leachate collection and removal, the
inability to detect leak's exact location
does not increase the potential for
migration of hazardous constituents
from the waste management unit
Today's proposed rule will require the
owner or operator to make a
quantitative demonstration that the
system performance criteria were met
This demonstration will be submitted as
a part of the Part B application for
facilities seeking permits or as part of a
permit modification application for
already permitted facilities (Section
270.17(b). 270.18(c) and270.21(b)}. If the
facility is an interim status facility, the
demonstration will be reviewed by EPA
during permitting along with the double
liner system requirements.
(b) Design and operating
requirements. Today's proposed rule
sets out specific minimum design and
operating requirements for leak
detection systems at bom permitted and
interim status facilities. (See Sections
264.221(h) and 265.221(g) and conforming
amendments to Subparts L ami N.)
These design and operating
requirements are being proposed for
surface impoundments, waste piles, and
landfills.
The requirements consist of both
minimum design specifications and
operating criteria for leak detection
system components. The combination of
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
1
the performance criteria previously
discussed, and minimum component and
operating specifications, ensures that
the leak detection system has a
capability to detect leakage at the
earliest practicable time over all areas
likely to be exposed to waste or
leachate. The minimum design
specifications in today's proposal
include drainage layer hydraulic
conductivity and thickness for granular
drainage media, hydraulic
transmissivity for synthetic drainage
media, bottom slope, and sump capacity.
The minimum operating criteria specify
removal of liquids rapidly to minimize
the head on the bottom liner. The
Regional Administrator will specify
operating conditions in the permit to
ensure the liquid head is minimized at
all times.
In lieu of the design and operating
criteria set forth in Sections 284.221(h)
and 285.221 (g) and conforming
amendments to Subparts N and L, the
owner or operator may choose to select
an alternative leak detection system in
accordance with Sections 284.221(1),
285.221(h), and conforming amendments
to Subparts L and N. The alternative
leak detection system would not be
required to meet the LCRS requirements.
This variance for the design and
operating requirements will be
discussed in Section a(4) below.
(2) Performance standards—(a) Leak
detection sensitivity. The Agency is
requiring leak detection systems for
surface impoundments (Sections
284.221(h)(2) and 285.2Zl{g)(2}), landfills
(Sections 284.301 (h){2) and 285.301{g)(2)),
and waste piles (Sections 284.251(h)(2)
and 265.251(g)(2)) that are capable of
detecting a rate of top liner leakage of
no more than one gallon/acre/day
(gpad). This "leak detection sensitivity"
of one gpad Is based on BAT leak
detection sensitivities of leachate
detection, collection, and removal
systems (LDCRS) located between the
top and bottom linen. Detection
sensitivity refers to the smallest
quantity of liquid that can pass through
the top liner and be'detected by the leak
detection system.
As stated above, the detection .
sensitivity is reported in units of gpad.
Areal units of acres were selected
because the size of a typical surface
impoundment, waste pile, or landfill unit
is approximately one or more acres (see
Liner/Leak Detection Background .
Document). The detection sensitivity is
reported in 24-hour units (days) because
leak detection using leachate collection
and removal systems is on the order of
days at opposed to other time units (see
Liner/Leak Detection Background
Document).
In establishing a detection sensitivity
of one gpad, EPA considered the
performance characteristics of
compacted soil and composite bottom
liners. EPA has conducted studies (see
the EPA Background Document "Bottom
Liner Performance in Double-Lined
Landfills and Surface Impoundments")
to evaluate the influence of bottom liner
type on leak detection sensitivity. The
studies included analytical and
numerical evaluations of the
performance of both compacted soil and
composite bottom liners as well as an
evaluation of small-scale and large-scale
liner model test results. These studies
showed that if the bottom liner is
constructed of low-permeability
compacted soil, a certain rate of liquid
migration into the liner will occur due to
gravitation and capillary forces. Drain
flow will not occur in the LDCRS until
the rate of liquid impingement onto the
bottom liner exceeds the rate of liquid
infiltration into the bottom liner due to
these forces. The studies showed that if
a top liner developed a leak that
resulted in uniform leakage (similar to
rain) onto a compacted soil bottom liner
with a hydraulic conductivity of 1 x 10~T
cm/s, the bottom liner could absorb
approximately 80 gpad under steady-
state conditions before drain flow would
begin. That means that the detection
sensitivity of the leak detection system
could be as high as 80 gpad or more, in
this example.
Compared to compacted soil bottom
liners, the EPA studies have shown that
composite bottom liners consisting .of an
upper FML component and a lower.
compacted soil component will absorb
much less liquid than a compacted soil
bottom liner. The study results indicate
leak detection sensitivities for
composite bottom liners in the range of
O001 to 0.1 gpad (see Liner/Leak
Detection Background Document).
. The results from the comparative —
study of low-permeability compacted
soil bottom liners and composite bottom
liners clearly demonstrated that LDCRS
underlain by composite bottomliaers •
are generally more effective. The study
results also indicated that properly
designed and constructed composite' •
liners cantesultin LDCRS detection
sensitivities of less than 0.1 gpad (see
Liner/Leak Detection Background
Document).The Agency if today .
proposing a detection sensitivity based
on composite bottom liner of one gpad
rather than 0.1. A value of one gpad has
been selected to account for , • • -. • •
construction, operational, and other ••-
factore.that limit the "practical" ',.
detection capability of a LDCRS.
However, since the actual detection
sensitivities associated with composite
bottom liners were found to be less than
0.1 gpad. the Agency is considering
lowering the detection sensitivity
standard from the proposed value of one
gpad to 0.1 gpad. EPA is requesting
comment on the appropriate value for
detection sensitivity within the range of
0.1 gpad to one gpad.
Today's proposal requires owners or
operators to design a LDCRS to meet the
detection sensitivity criterion and
demonstrate that the system satisfies
this criterion. EPA plans to issue
guidance for making such a
demonstration. This demonstration will
be based on a calculation of the rate of
migration of liquids Into the bottom liner
based on uniform top liner leakage and
saturated, steady-state conditions (see
Liner/Leak Detection Background
Document). The owner or operator will
not be required to account for liquids
held in storage in the LDCRS by
capillary tension.
(b) Detection time, the EPA is
requiring leak detection systems for
surface impoundments (Sections
284.221(h)(2) and 285Jttlfe)(2» landfills
(Sections 284.301(hH2) and 26S.301(g)(2))
and waste piles (Sections 284.251(h)(2)
and 285^54(g)(2)) to be capable of
detecting top liner leakage of one gpad
or greater within one day of the leakage
having passed through the top liner.
Detection time refers to the time from
when liquid enters the LDCRS between
the liners to when it reaches the LDCRS
collection laterals or sump.
A leak detection time design goal of
one day was established based on the
capabilities of currently available
drainage materials. The one-day
criterion has been established based on
saturated, steady-state analyses using
drainage layer materials meeting the'
proposed design spedficationrfor
drainage materials described in Sections
264JZ2KhKl)and26R221(g)(i)and <.
conforming amendments, to Subparts .L .
and N (ste Liner/Leak Detection .
Background Document). There drainage
material specifications minimize . •
capillary tension in the LDCRS, thereby
permitting me uae of saturated steady-
state analyses to evaluate leak detection
time. This is discussed in the folio wing •
paragraphs.' •• •.•<*"•••• - •• . •
The leak detection time criterion Is
based on steady-irtatfranalyses of
drainage layer materials tiiat exhibit ••
minimal wetting up. The following ts-a> ?
brief explanationof some.faetors that
affect d*tectifl«ti»t. An initially dry •
granular drainage4ay«r«ateris4 will ••••
absorb some moisture before drain flow
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20232
begins. This wetting up is due to the
presence of capillary tensions in the
pores of partially-saturated granular
materials. The more finely grained the
granular material, the larger the
capillary tension and the greater the
capillary rise or wetting up. During the
wetting-up period, leachate fills up the
pore volume of the leak detection layer.
Drain flow will not occur and liquid will
not be detected in the leak detection
system sump until the drainage layer
has wetted up. For sands with hydraulic
conductivities of 1 x 10~2cm/s, the
wetting up period can amount to
hundreds of days for small leaks in the
top liners of typical landfill facilities.
For thin synthetic drainage layers with
only a fraction of the thickness of a sand
drainage layer and for granular drainage
media with hydraulic conductivities in
the range of 1 cm/s or greater (such as
clean coarse sand or clean pea gravel),
the wetting up period is cL-amatically
reduced. With gravels and synthetic
drainage layers, only very small
amounts of leachate will be held in
storage through capillary tension. These
types of drainage media, coupled with
the use of a composite bottom liner,
result in a leak detection system with
rapid detection times (as long as the
leakage rate through the top liner
exceeds the detection sensitivity).
Today's proposed rule requires
granular drainage materials with
hydraulic conductivities equal to or
greater than 1 cm/s so that capillary
tension in the leak detection system will
be small. Further, with the use of a
bottom liner meeting today's proposed
leak detection sensitivity criterion, only
slight leakage will occur in the bottom
liner before it is detected. EPA studies
(which are discussed more fully in the
Liner/Leak Detection Background
Document) have shown that under these
conditions, flow in the LDCRS between
the top and bottom liner can be
evaluated using saturated, steady-state
analyses assuming an impermeable
bottom liner. The EPA studies present
these analyses for a range of waste
management unit designs involving
various drainage distances and
hydraulic gradients. From these
analyses, it was concluded that with the
drainage layer materials specified hi
today's proposal and current good
design practice, leak detection times on
.the order of one day or less would be
calculated. These calculations were the.
basis .for selecting a one-day detection
time criterion. .
The leak detection time criterion is a
design objective that the owner or
operator must satisfy, through a
quantitative demonstration during the - .
design process. It-is not a measured
objective; the owner or operator is not
required to carry out a field
demonstration. Today's proposed rule,
therefore, requires the owner or operator
of permitted facilities to demonstrate, as
part of the Part B permit application,
how an individual landfill, waste pile, or
surface impoundment unit complies with
the leak detection performance criteria
(Sections 270.17,270.18 and 270.20).
Interim status units regulated under Part
265 will be required to maintain a
similar demonstration. The
demonstration must be presented to
EPA during permitting along with the
other double liner 'system requirements.
To make this demonstration, the owner
or operator will be required to prepare
detailed plans and engineering reports
showing how the facility was designed
and how it will be operated.
In demonstrating that the LDCRS
satisfies the detection time performance
criteria, all owners or operators will be
required to consider a number of factors
in the design demonstration, including:
(1) The location of the top liner leak
(distance to collection laterals and
sumps), (2) the type of drainage media
(granular or synthetic) and its
properties, (3) the bottom slope of the
LDCRS, and (4) the design of the top and
bottom liner systems (FML or
composite). The owner or operator will
be expected to show how the LDCRS
meets the detection time performance
criterion for a worst-case leakage
scenario (longest flow path to the
detection point).
In completing the quantitative
demonstration to satisfy the leak
detection time performance criterion,
the owner or operator will be allowed to
assume saturated steady-state flow
conditions. In addition, the owner or
operator will be required to specify
materials for LDCRS that meet the
minimum LDCRS component design
specifications proposed in today's rule
for drainage media hydraulic
conductivity and thickness (or hydraulic
transmissivity for synthetic drainage
media), bottom slope, and sump design.
These minimum component design
specifications will be discussed hi
Section V.2.a.(4) of this preamble.
(c) Collection efficiency. In
developing today's proposal, the Agency
also considered LDCRS collection
efficiency. Collection efficiency refers to
the quantity of liquid removed from the
LDCRS sump divided by the quantity of ,
liquid that enters the LDCRS (i.e., the
quantity of liquid that passes through
the top liner). A high efficiency : •
collection system i» a prerequisite to :
maximizing leachate collection arid- • • ''
removal and minimising the hydraulic
head on the bottom liner.
EPA rejected explicitly setting a
collection efficiency criterion because it
is unnecessary, given the Agency's
criteria for detection sensitivity,
detection time, and minimum component
design specifications. By complying with
these other system criteria and
component specifications, the owner or
operator will inherently design a system
with a high collection efficiency.
The collection efficiency of the LDCRS
can be maximimized by minimizing: (1)
Liquid migration into the bottom liner,
and (2) liquid storage due to capillary
tension in the pore volume of the
drainage material hi the LDCRS. Since
today's proposal provides system
requirements that minimize both
migration into the bottom liner and
LDCRS storage due to capillary tension,
a very high collection efficiency is
ensured.
Liquid migration into the bottom liner
will be minimised through owner or . .
operator compliance with the teak
detection sensitivity and detection time
criteria proposed today. By satisfying
these criteria, the owner or operator will
minimiae liquid head in the LDCRS
which in turn minimizes migration into
the bottom liner. Since the absorptive
capacity of a properly designed and
constructed composite bottom liner is
much less than that for a compacted
low-permeability soil bottom liner, the
collection efficiency of a LDCRS
underlain by a composite bottom liner
will be significantly larger than the
collection efficiency of a LDCRS
underlain by a .compacted soil bottom
liner. A thorough comparison of the
collection efficiencies associated with
both compacted soil and composite
bottom liners is in the background
technical documentation ("Background
Document on Bottom Liner Performance
in Double-Lined Landfills and Surface
Impoundments**) to EPA's April 17,1987
Hazardous Waste Management System;
Minimum Technology Requirements:
Notice of Availability of Information
and Request for Comments (S2FR
12566). The background document and
notice present data comparing the
performance capabilities of compacted
soil and composite bottom liners.
(3) Design specifications. The
Proposed Codification Rule of March 28,
1986 (51FR10707-12) requires owners
and operators'of certain surfaee ~
impoundment and landfill units to install
a leachate collection and removal :~ '
system between the liners that is .
designed, constructed, maintained; and
operated to detect, collect; and remove
liquids that leak through any area of the -
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
top liner during the active life and post-
closure care period (Sections
2S4,221(c)(Ui](3) and 265.221(a)(iii}{3)
and conforming amendments to Subpart
N). That proposal further requires the
Icachate collection and removal system
to be constructed of materials that are
chemically resistant to the waste or
leachate in the unit and to be designed
and operated to function without
clogging during the active life and post-
closure care period of the unit.
The LCRS standards proposed on
March 28,1986 serve as the basis for
today's proposed leak detection system.
However, today's proposal also adds the
following design requirements to those
LCRS standards for new surface
Impoundments, waste piles, and
landfills (see Liner/Leak Detection
Background Document for supporting
information}: •
(a) Bottom slope drainage layer—2
percent
(b) Granular drainage layer hydraulic
conductivity—1 cm/a.
(c) Granular drainage layer
thickness—12 inches.
(d) Synthetic drainage layer hydraulic
transtnissivity—5 x 10~4 m*/s.
(e) Sump capacity and monitoring
requirements.
For gf^Htiiap ufAinage layers,
hydrauHc conductivity and thickness are
being specified, while for synthetic
drainage material a hydraulic
transraissffity Is being specified.
Transmtosiviry Is defined as hydrauHc
conductivity multiplied by thickness;
therefore, in meeting the hydraulic
conductivity and thickness; the'
hydraulic transciissrvKy wiB :'
automatically b« met for granular'
drainage material
(a} Bottom xftp*. Uader today's
propose! the LOCKS ntast here a
minimum bottom stop* of 2 percent
(Sections 2Bt221(hXl). 28C2SlfhXl) arid
29t£01(hXl), «ad Section* 265321{gXl),
26S.2St(gXl} and ZSSdOlfeftl)). The
bottom slope of the LDCRS is important
becaaee the rate of Uqvid nwreweat
through me LOCKS is proportional to the
bottom slope. Tie stteperthe stope, the
faster a girea leak will travel to the
sump. The nfariEnm bottom 'slope
, specified In tbdcy's pcopdcal appUes to
all components in. the LDCRS, Therefore,
the minimum bottom slopes of the >v:.'-
drainage media, collector pipes. '""'
cotlectioabtenis, and ill odier piping; •'
and/or drainage features wut be at •
least 2 oercsmt Tide rwrairement wot -
reMtH in areu of the unit with bottom •
slopes greater than a perceat- :
The Agency selected the rafrrirpnm 2
percent botfcm slope to proauXs • •
draia*3»fn" the unit EPA h*» prertouiiy
recomieadsd tbis value as • minimum '
(Draft. Minimum Technology Guidance
Document on Double Liner Systems,
May 24,1985. EPA/530-SW-85-014)
based on the results of analytical
studies and earlier design and
construction practices. Today's
minimum specified 2 percent bottom
slope will create no new requirements
for most owners and operators because
EPA's existing technical guidance calls
for a 2 percent bottom slope;
consequently, most facilities are
constructed with at least this minimum
slope. EPA is concerned, however, that
some waste management units designed
with 2 percent bottom slopes actually
end up with bottom slopes of less than 2
percent due to imperfect construction or
post-construction settlement The .
Agency is therefore considering .,
increasing the minimum bottom slope
requirement from today's proposed
value of 2 percent to a value within the
range of 2 to. 4 percent EPA requests .
comments on the appropriate value for
minimum bottom slope. .
The Agency believes that many
owners and opera tors will elect to use
bottom slopes greater .than 2 percent for
at least two reasons: (1) the larger ma ;
unit's bottom slope, the greater the
efficiency of the leachate coQection and
removal system above the top liner (Le*
the top liner slope will parallel the
bottom liner slope), the smaller the
potential for liquid migration through the
top liner since leachate is being •••
efficiently collected.' and the lower the
probability that leakage will exceed die
action leakage rate since leachate will
not be building up on the top liner; and -'
(2) the larger the unit's bottom slope, the
easier it wiU be for the owner and'
operator to make a quantitative
demonstration that die unlfs design ' •
satisfies fte detection sensitivity aad •
detection time performance criteria. :' :• .
(b)Hydraalic coiuiactivity of granular.
drainage materials. Un&et today's . •
proposal, granular drainage material*
used in the LDCRS must have a .
minimum hydrauHc conductivity (also .
called permeaom'ty) of 1 cm/s (see
Liner/Leak Detection Background
Document). (See Sections 2M221fh){lXi)
and 265^21fe](l)0Vand conforming >
amendments to Subparts Land It) .
Hydraulic conductivity describes the -
velocity of liquid flow through the ' '' '
drainage layer voder a hydraulic . * .
gradient equal to one. Because me
velocity of liqokl Sow fodbeetiy . ''".
proportionatto hydraulic ouwluciiTitft
hydraulic coadwcthrity tsAe stt^ meet
important vitriaidecoBtrolniig leek ;
detection time, the ledger this hydfaullo
conductivity of *edrti»agb toyer, 4e ;;'
«L«_*«M •• It 11 ii-^^^ 1 i lMiiiit,ri im t^AbM fc«'*"'1' "•
snorter ne tMaeter a8WCpHg«iRfk»,Hi
the sump. In order to determtte: wwemr
a granular material meets the proposed
minimum specification, owners and
operators will need to present results
from hydraulic conductivity tests
conducted on saturated samples of the
drainage material. The tests should be
performed under conditions simulating
those that will exist in the unit
Saturated hydraulic conductivities for
granular drainage materials can vary
over several orders of magnitude. In
developing today's proposed
specification for hydraulic conductivity,
EPA considered granular drainage
materials with hydraulic conductivities
ranging from 10~* cm/s to 10 cm/s. The
lower value in mis 'range corresponds to
the hydraulic conductivity of silty sand,
and the upper value corresponds to the
hydraulic conductivity of clean gravel
In selecting the proposed design .
criterion from the considered range, EPA
investigated me effect of hydraulic
conductivity on detection time; Details
of this investigation are presented in the
Liner/Leak Detection Ba
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Federal Register / Vol. 52, No. 103 / Friday. May 29, 1987 / Proposed Rules
20233
specification is to ensure that the
granular material in the LDCRS can be
constructed to specification and that an
underlying FML component of the
bottom liner is not damaged by
equipment during placement of the
granular material. The minimum 12-inch
value is from EPA's technical guidance
on double liner systems (also see Liner/
Leak Detection Background Document).
This thickness of granular drainage
material provides an LDCRS that
automatically satisfies the proposed
minimum hydraulic transmissivity (5 x
-'
(d) Hydraulic transmissivity of
synthetic drainage materials. Today's
proposal requires synthetic drainage
layer materials to have a hydraulic
transmissivity of 5 x 10~4m2/s or
greater. (See Sections 264.221(h)(l)(2)
and 265.221(g)(l)(2) and conforming
amendments to Subparts L and N.)
Hydraulic transmissivity of a layer of
drainage material is equal to its
hydraulic conductivity multiplied by its
thickness. Hydraulic transmissivity,
therefore, is a measure of the quantity of
liquid that can flow through a layer of
drainage material in a unit of time. The
larger the hydraulic transmissivity, the
larger the amount of liquid that can flow
through a drainage layer under any
given head. This parameter is important
because if the hydraulic transmissivity
of the drainage layer is inadequate, the
drainage layer will not be able to accept
large amounts of leakage while still
maintaining gravity flow conditions in
the LDCRS.
EPA has arrived at the minimum value
of 5 x HT4 m2/s for hydraulic
transmissivity based on numerical
simulations of typical leachate
collection and removal systems. In these
simulations, EPA considered a range of
synthetic drainage materials. From the
results of the simulations (which are
discussed in detail in the Liner/Leak
Detection Background Document), EPA
concluded that a hydraulic
transmissivity of 5 x 10"4 m*/s would
enable the LDCRS to collect and remove
relatively large amounts of leakage
while maintaining gravity Sow
conditions. This specification therefore
ensures that liquids in the LDCRS will
be rapidly collected and that the
hydraulic head on the bottom liner will
be minimized.
The Agency notes that the minimum
hydraulic transmissivity specification in
today's proposal is about one order of
magnitude larger than the minimum
value cited in its May 24, 1985 Draft
Minimum Technology Guidance on
Double Liner Systems. EPA continues to
consider values for minimum LDCRS
- .'V— • ' ' • £*-
hydraulic transmissivity, in the range of
3 x NT5 mz/s to 5 x 1
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20234
Federal Register / VoL 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
what la considered hi today's proposal
In ail references to leakage rate.
Today's proposed rule requires the
owner or operator of a surface
Impoundment waste pile, or landfill unit
to inspect for leakage in the LDCRS
sump daily during die active life
(including the closure period) and
weekly during the post-closure care
period (if applicable). (See Sections
264.228{c)(l) and 285-228(b)(l) and
conforming amendments to Subparts L
and N.) EPA believes that this
monitoring schedule will ensure that a
minimum hydraulic head is maintained
In the sump and that accurate
Information will be collected on the rate
at which liquids are entering the sump.
For permitted units, today's proposed
rule provides the RA with the authority
to specify ail monitoring, inspection.
maintenance, reporting, response, and
rccordkeeping activities that are
necessary to ensure that the objectives
of detecting leakage at the earliest
practicable time »n
located completely abo*»tte «easioaal'
high water U*Ui*ke«wn«t«F operator
maet desaoosteste that m\e opera^eaqf
the reskde«eca*»sys»em w«not fee-
-------
Federal Register / Vol. 52. No. 103 /Friday, May 29. 1987 / Proposed Rules
20235
adversely affected by the presence of
ground water.
b. Action leakage rate—(1) Proposed
rule. Under the authority of Section
3004(a) of RCRA, EPA is proposing that
the owner or operator establish an
action leakage rate (ALR) during the
design of the unit (Sections 264.221(k).
265.221(j) and conforming amendments
to Subparts L and N). The ALR notifies
the owner or operator of a leakage rate
that may require implementation of a
response action to prevent hazardous
constitiuent migration out of the unit.
The Agency believes that this
requirement is necessary to assure
protection of human health and the
environment because it aids in
preventing hazardous constituent
migration from the land disposal unit
The ALR is a mechanism to trigger an
assessment of the need to implement the
RAP which is an integral part of EPAs
systems approach.
The ALR constitutes a trigger for
initiating interactions between the
owner or operator and EPA. The owner
or operator is required under today's
proposal to monitor the rate-of leakage
into the LDCRS sump on a daily basis.
The owner or operator also is required
to determine whether the measured rate
of leakage over a specified period of
time exceeds the ALR (Sections
264.226(c)(2) and 265.226{b)(2) and
conforming amendments to Subparts L
and N). If the measured rate of leakage
is less than the ALR. no action is
required by the owner or operator, other
than to remove the liquids from the
sump to maintain a minimum hydraulic
head in all parts of the LDCRS. If the
measured leakage rate exceeds the ALR,
today's proposal requires the owner or
operator to initiate implementation of
the RAP.
Under today's proposal, the owner or
operator must establish an action
leakage rate during the unit's design
(Sections 264.221(k) and 265.221(j) and
conforming amendments to Subparts L
and N). The owner or operator has a
choice between using a standard value
for ALR specified by EPA in the filial
rule or, alternatively, a site-specific ALR
obtained after EPA approval of a site-
specific ALR demonstration by tile
owner or operator. EPA is not proposing
a standard value for the ALR, but rather
a range of 5-20 gallons per acre per day
(gpad) from which EPA will select a
value in finalizing this rule.
(2) Rationale. In developing today's
proposal for leak detection systems.
EPA selected an approach based, on the
current technology capabilities of the
top liner to prevent migration of liquid
through the liner. EPA believes it is not
appropriate to select a value that is
below current capability'of.the top liner
to control migration. EPA believes that
an ALR in the range of 5 to 20 gpad is
consistent with a technology based
standard for FML top liners. This value
is based on an evaluation of top liner
leakage scenarios at surface
impoundments, landfills, and waste
piles. EPA is proposing a range of values
for public comment because of limited
data, particularly on the top liner's
performance during the operating period
after installation. Technical support for
the proposed range for ALR values is
presented in the Liner/Leak Detection
Background Document supporting
today's proposal. As discussed in that
document, the proposed ALR range of 5
to 20 gpad is representative of a very '
high level of construction quality
assurance at surface impoundments.
The Agency believes that this range for
ALR is appropriate, based on the current
capabilities inherent in FML seaming
techniques and CQA programs (using
ponding tests, geophysical techniques,
etc. to detect top liner defects before the
surface impoundment unit is put into
operation).
Although only one standard ALR will
be cited in the final rule, lower ALRs
could be considered for landfills and
waste piles with properly designed and
functioning ieachate collection and
removal systems above the top liner
(since the hydraulic head acting on the
top liner would be lower than the head
acting on a surface impoundment).
Additionally, in lieu of meeting the
standard ALR value, owners or
operators may demonstrate that a site-
specific ALR is appropriate as discussed
in Section 4 below.
The option of allowing no leakage in
the LDCRS was not accepted for today's
proposed rule because it would ignore •
the finite capabilities of lining systems
and drainage media to contain and
transmit leakage. Therefore, not
allowing any leakage in the LDCRS
would not be consistent with current
BAT. The option of allowing a large
leakage rate as the ALR was not
selected because a large leakage rate
may exceed the gravity flow capacity of
the LDCRS, thereby increasing the
hydraulic head on the bottom liner. As
previously noted in this preamble, as the
hydraulic head on the bottom liner
increases, the potential for hazardous
constituent migration into and through
the bottom liner also increases. Thus,
allowing leakage rates that increase the
hydraulic head on the bottom liner is
inconsistent with EPA's goal of
preventing hazardous constituent
migration from the waste management
unit.
Today's proposal for the ALR is a
logical extension of EPA's overall
systems approach to preventing
migration of hazardous constituents out
of the unit The ALR provides the
mechanism or trigger to allow EPA to
use a site-specific evaluation for the
leak detection program. This mechanism
and the associated response action
program is a key element in the EPA
regulatory program for preventing
contamination of ground water and
protecting human health and the
environment. The top and bottom liners
together with the LCRS above the top
liner, the LDCRS between the top and
bottom liners, and the trigger and
response action program function
together in an integrated,
interdependent manner to achieve the
objective of preventing hazardous
constituent migration out of the unit by
maximizing Ieachate collection and
.removal.
EPA is continuing to investigate the
appropriate ALR based on BAT-for top
liners, and requests comments on the
appropriate value for the ALR within the
proposed range of 5-2O gpad. In
particular. EPA is interested in
comments on the appropriateness of the
proposed range for surface
impoundments. Owners or operators
with data that support selection of an
ALR are encouraged to provide these
data to the EPA. The Agency also is
interested in public comment on
whether different ALR values are
appropriate for FML and composite
(FML plus compacted soil) top liner
systems.
(3) Basis for the trigger. EPA is basing
the trigger mechanism for today's
proposed rule on the hydraulic rate of
top liner leakage as opposed to the '
hazardous constituent concentration in
the liquid collected in the LDCRS sump.
EPA is not using constituent
concentration as part of the
determination as to whether the ALR
has been exceeded because it would
make the. determination more complex
and more costly to -the owner or
operator.
The determination would become
more complex if based on hazardous
constituents because: (1) Samples for
chemical analyses must be taken
carefully by trained personnel, whereas
maintenance personnel can measure the
quantity of liquid in the LDCRS sump
using unsophisticated equipment; (2)
complex chemical analyses are
expensive and time-consuming, whereas
liquid in the sump can be measured
frequently and inexpensively; (3)
chemical analyses take time to perform
and a timelag exists between the time of
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20236 Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
sampling and the time when a
determination can be made whether the
ALR has been exceeded; (4) chemical
analyses are subject to more uncertainty
than are volumetric measurements; and
(5) trigger levels would have to be set for
each hazardous constituent.
As a result of the complexities
outlined above and the burden to the
owner or operator of performing
chemical analyses, monitoring
hazardous constituents in the LDCRS
aump is not feasible on a daily or
weekly basis. While EPA believes that
periodic monitoring of constituent
concentrations is important and that
most owners or operators will choose to
conduct periodic monitoring, it is not
desirable, feasible, or necessary to use
hazardous constituent monitoring as the
trigger. However, discussed
subsequently in the preamble.
hazardous constituent concentrations
are an important factor in selecting the
appropriate response action as part of
the assessment in the response action
plan.
(4) Site-specific ALR. Today's
proposed rule permits the owner or
operator to use an EPA-specified ALR
•which will be selected from the range of
5 to 20 gpad or, alternatively, to use a
site-specific ALR obtained after EPA
approval of a site-specific ALR
demonstration by the owner or operator.
The purpose of a site-specific ALR is to
provide a mechanism to account for
conditions that reduce the potential
migration of hazardous constituents
through the top liner. If site-specific
factors enhance the capability of the top
liner LCRS to collect and remove
IcQchate or enhance attenuation of
hazardous constituents in the waste
containment unit, the owner or operator
has an opportunity to demonstrate that
the standard EPA-specified ALR is less
appropriate than a site-specific ALR.
To obtain approval for a site-specific
ALR, the owner or operator must make a
conclusive demonstration to the
Regional Administrator. If the RA does
not approve the demonstration, the
owner or operator may modify the
demonstration or may submit a new
demonstration for approval. The site-
specific ALR demonstration must show
that only small, isolated leakage through
the top liner is allowed and that it does
not affect the overall performance of the
top liner. In deciding whether to grant a
site-specific ALR, the RA will consider
the following four factors:
(1) The design, construction, and
operation of the top liner and the
leachate collection and removal system
above the top linen
(2) The attenuative capacity and
thickness of any soil component of the
top liner;
(3) All other factors that would
influence the potential for leachate to
migrate through the top liner; and
(4) The quality and
comprehensiveness of the engineering
data and analyses provided to the RA in
support of the site-specific ALR.
EPA believes a site-specific ALR will
only be appropriate in unique situations.
(5) Monitoring requirements. Today's
proposed rule requires the owner or
operator to monitor on a daily basis
during the active life for the presence of
liquids in the LDCRS sump and
determine when the ALR has been
exceeded (Sections 264.226(c)(l) and
265.226(b)(l) and conforming
amendments to Subparts L and N). This
determination is made by measuring the
amounts of liquid in the LDCRS sump at
the beginning and end of the monitoring
interval and the amount of liquid that
was removed from the sump during that
period. The RA may specify an
alternative approach for determining
whether the ALR has been exceeded in
the facility permit (Section 264.226(2)(iii)
and conforming amendments to
Subparts L and N), In addition, today's
proposed rule empowers the RA to
specify more stringent monitoring and
inspection requirements for permitted '
units if the RA believes such'
requirements are justified because of the
operating characteristics of the unit
(Section 264.226(e) and conforming
amemdments to Subparts L and N).
EPA recognizes that there may be
events that cause the ALR to be
exceeded for short periods but that do
not reflect a diminished integrity of the
top liner system. These temporary flow
rate increases may be due to singular
precipitation events, such as exceptional
rainfalls. Leakage rate increases due to .
these precipitation events would occur
during or shortly after the event itself.
EPA does not consider temporary flow
rates exceeding the ALR for a day or
two by a small margin to significantly
increase the potential for the migration .
of hazardous constituents from the unit
EPA believes that it is acceptable to
provide some flexibility to the owner or
operator in determining whether a
leakage rate exceeding the ALR triggers
interaction with EPA.
Today EPA is proposing that the
owner or operator monitor for the liquid
in the LDCRS removal sump daily during
the active life and closure period of the
unit and at least weekly during the post-
closure period (if applicable). Analysis
of the data to determine if the ALR has
been exceeded will be required on a
weekly basis during the active life and
closure period and quarterly during the
post-closure period (Section
264.226(c}(2). 265.226(b)(2), and
conforming amendments to Subparts L
and N). EPA believes that a time-
weighted value is appropriate for a
trigger for lower leakage rates. From
recent experience with leak detection
systems, EPA recognizes that the system
will not provide an instantaneous
measurement of the actual leakage rate
and that some period of time is needed
for the system rate to provide an
accurate indication of leakage through
the top liner. For instance, EPA believes
that it may be reasonable to allow an
owner or operator up to 30 days to
determine whether the ALR has been
exceeded if the maximum daily leakage
rate recorded on a daily basis does not
exceed 50 gpad during any one day
within the 30 days (see Liner/Leak
Detection Background Document). The
leakage rate for the 30-day period would
be equal to the total leakage during 30
days divided by 30. If during any
monitoring interval during the SOdays
the leakage rate exceeds the 50 gpad
value, the ALR would be triggered
immediately, and the owner or operator
would have 7 days to notify the RA.
Today's proposed rule also allows the
RA to approve an alternative method for
determining if the action leakage rate of
the top liner is exceeded. EPA solicits
comments on the above approach to
allow the RA some flexibility in
specifying permit conditions for
determining whether the ALR has been
triggered.
c. Response, action plan. (1)
Background—(a) Introduction. Under
the authority of Section 3004(a) of
RCRA, EPA is proposing a response
action plan (RAP) for leakage exceeding
the ALR (Sections 284.222, and 285.222,
and conforming amendments to
Subparts L and N). The Agency believes
that this requirement is necessary to
assure protection of human health and
the environment The RAP is a site-
specific plan that the owner, or operator
develops to address leakage through the
top liner to assure that it does not
migrate out of the unit It is based on an
assessment of the capability of the total
system rather than of individual
components. The goal of the RAP is to
prevent the migration of hazardous .
constituents out of the unit at levels. -
exceeding health-based standards by
providing a mechanism for appropriate,
actions to mitigate the potential for such
migration should the leak detection
system reveal the presence of liquids
between the top and bottom liners, in
the RAP, the owner or operator •
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
20237
characterizes the reason for leakage.
assesses current conditions of the
double liner system, assesses the
potential for migration out of the unit.
reviews various responses and their
effectiveness, and recommends a
response. The RA will review and
approve the RAP with the recommended
response.
The RAP proposed today is an
integral component of EPA's systems
approach, wherein the goal of protecting
human health and the environment is
achieved through the design and
operation requirements for an entire
unit, rather than its individual
components. With this thought in mind.
the appropriate response actions to any
leakage event are linked to the system
capabilities rather than the capabilities
of any single system component The
appropriate response actions must
consider not only the concentrations of
hazardous constituents in the liquid
contained in the leak detection system
but also the overall ability of the lining
system (in particular, the ability of the
leak detection system and the bottom
liner) to contain top liner leakage within
the unit
In today's proposal, the Agency is
taking the position that migration of
hazardous constituents out of the unit at
concentrations below EPA approved
health based standards for ground-
water protection will be protective of
human health and the environment
Therefore, the presence of such liquids
in the leak detection system between
the liners is consistent with EPA's
objectives for protection of human
health and the environment for a land
disposal unit Furthermore, the presence
of hazardous constituents in the leak.
detection system at concentrations •-..
exceeding EPA's health-based standards
is not necessarily a problem, since the
overall lining system, with a composite
bottom liner and a leak detection system
between the top and bottom liner,
should protect human health and the
environment The role of the RAP in this
instance is to provide an opportunity to
review the. design, construction, and
operation of the unit, and all factors that
might affect the performance of the •. ,
lining system in order to ensure that the
entire unit can meet its performance
goal of protecting human health-and the
environment. The RAP will initiate any
necessary actions to ensure compliance
with thia goal.
The leak detection approach proposed
in this rule differs from the leak • -
detection approach in the Tank Rule {51
FR25487i July 14,1986). The Tank Rule
requires the unit to be taken out of -
service and replaced or repaired if
leakage is detected. The difference
between^the leak detection approaches
that EPA is using for tanks and for
landfills, waste piles, and surface
impoundments results from differences
in the design and materials used for
construction, operating practices, and
waste placed in these units. To replace a
steel tank or repair a leak in the tank is
feasible and relatively easy. However,
EPA's position is that, in most cases,
requiring the repair of a top liner in a
landfill when the liner is covered by
waste is not a practical approach. Top
liners at surface impoundments and
certain waste piles where the waste is
periodically removed are repairable;
EPA has data showing surface
impoundment liners are commonly
repaired or replaced when they are
damaged. Also, a top liner leak in a
landfill would be very difficult to locate.
and repairing the leak would require
excavating large quantities of the
previously placed hazardous waste.
Therefore, the leak detection approach
proposed today recognizes the system's
capabilities in determining the
appropriate response action.
Today the Agency is proposing that a
RAP be required for all newly
constructed landfills, surface
impoundments, and waste piles;
replacement landfill, surface
impoundment, and waste pile units; and
landfill and surface impoundment units
required to have double linen after
November 8,1984, at both permitted and
interim status facilities (Section 284.222,
and conforming amendments to
Subparts L and N). EPA is proposing a
RAP as a means to implement the
appropriate response activity for
leakage on a site-specific basis. The
RAP sets forth actions to be taken to
ensure that hazardous constituent
migration out of the unit is prevented at
levels exceeding EPA-approved health-
based standards for ground water
protection. Although the statute requires
only leak detection and not a response
action (Section 3004{o)(4)(A)), EPA
considers the RAP, with its response
action requirement to be a logical step
to minimising head-on the bottom liner
and preventing hazardous constituent
migration out of the unit • - ••
RAPs are required for two leakage
rates: (1) Rapid and extremely large
leakage and (2) leaks less than rapid
and extremely large that exceed the
ALR.' Rapid and extremely large leakage
(RLL) is defined as the maximum design
leakage rate that the LDCRS can remove
under gravity flow conditions (i.e..
without the fluid head on the bottom :
liner exceeding ooa foot of water ia
granular leak detection system* and
without the fluid head exceeding the
thickness of synthetic leak detection
systems). In determining the design
value for the RLL rate, the owner or
operator should use an adequate safety
margin to allow for uncertainties in the
design, construction, and operation of
the LDCRS (e.g.. decreases in the flow
capacity of the system in time resulting
from siltation, creep of synthetic
components of the system, etc.). (See
Liner/Leak Detection Background
Document for further information.)
EPA takes the position that leakage in
excess of the RLL can significantly
increase the potential for migration of
hazardous constituents out of the unit If
a leak occurs, and the leakage rate
exceeds the gravity flow capacity of the
leak detection system, the hydraulic
head on the bottom liner can become
equal to the elevation difference
between the liquid level in the unit and .
the elevation of the bottom liner. In the
case of a surface impoundment or in die
case of a failure of the LOIS above the
top liner, dds elevation difference can
be large (see Liner/Leak Detection
Background Document). Based on the
increased migration potential if the RLL
is exceeded, the procedures for
submitting a RAP differ for RLL and less
than RLL. The owner or operator must
have an approved RAP for RLL before
receiving waste as a remit of this
increased migration potential For
leakage less than RLL. EPA allows the
owner or operator to submit the RAP in
the permit application or to develop the
RAP subsequent to the leakage event .
The EPA does not believe that leakage
below rapid and extremely'large poses
as great an immediate threat; therefore.
the RAP for these leaks can be
developed after the.ALR is exceeded. . .
(b) Overyiew of RAP requirements
and implementation—(i). RAP for
leakage greater than.AlA but less than
rapid and large, '•..'. .
Leachate collection and removal and
sampling. If the owner or operator
detects leakage exceeding the ALR, but
not exceeding the RLL rate, he must
immediately notify the Regional
Administrator. The owner or operator
must continue leachate collection and,
removal to minimize the head on the
bottom of the liner as currently required
in the LCRS requirements. If he has not
yet submitted a RAP for these lower.'.
leakage rates to EPA, he must submit.
one within 90 days' of. detecting leakage
above the ALR. The RAP must Identify
the hazardous constituents whicnare
present in the waste and project which
constituents will be present in the sump.
The Regional Administrator will review-
this list and specify which hazardous
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Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules
constituents must be sampled in the
sump of the LCDRS to give a reasonably
accurate representation of the
concentrations of hazardous
constituents in the leachate.
The RAP must also require the owner
or operator to sample the designated
constituents as soon as possible after
the RAP is implemented. If the sampling
shows that the concentration of all of
the constituents are below EPA-
opproved health-based standards
(explained in more detail below), the
RAP may limit response action to the
continued collection and removal of
leachate. If, however the owner or
operator finds that the concentration of
any of the sampled constituents exceeds
a health-based standard, he must
implement the approved response for
leakage above health-based standards.
The RAP would require the owner or
operator to consider a series of factors
that relate to the potential for the
leachate to escape from the unit into the
environment. These factors are
described in more detail in section
V.A.2.C.(2)(a) below.
Major response action. The RAP must
then require the owner or operator to
implement a response that is
appropriate in light of all the factors and
conditions considered. The goal of the
response will be to prevent migration
out of the unit of any leachate with
constituent concentrations exceeding
the health-based standards. For leaks
that exceed the ALR, but are less than
rapid and large, acceptable responses
include:
• Terminating receipt of waste and
closing the unit;
• Repairing any leaks expeditiously;
• Instituting operational changes to
reduce leakage into the LDCRS between
the linen;
* Collecting and removing leachate,
and, in addition, accelerating ground-
water monitoring; and
• Maintaining current operating
procedures (including the collection and
removal of leachate);
The owner or operator may choose to
write a RAP that sets out a range of top
liner leakage rates and corresponding
responses. For example, the owner or
operator may recommend in the RAP the
following responses to the
corresponding leakage bands for a
landfill where the RLL rate has been
determined to be 2,000 gpad:
Leakage band
Greater than 2,000 gped
(RLL).
Response
Modify the operating practice to
tntmT1O9 pfOOpftfltlOfl (flflttTfltiOn
Into the waste and partially
dote the unit
Laefcapeband
VM tOCRS pumping
reduce •*• leakage to lacs than
This approach offers the owner or
operator greater flexibility by allowing
the leakage rate to fluctuate within
reasonable limits without requiring the
owner or operator to change to a
different response with every increase
or decrease in the leakage rate.
Although EPA encourages owners and
operators to submit broad RAPs
responding to a wide range of possible
scenarios, EPA is not requiring them to
do so. The owner or operator may
choose, for a leak that exceeds the ALR,
but is less than rapid and large, to
submit a narrower RAP focusing on the
problem actually observed. EPA,
however, expects that these more
specific RAPs will frequently need
modifications, and predicts that most
owners and operators will find it in their
interest to submit broader and more
flexible plans.
The Regional Administrator will
review the owner or operator's
submission and evaluate it against the
goal of preventing migration of leachate
with hazardous constituent
concentrations exceeding health-based
standards. Upon reaching a tentative
conclusion to approve, disapprove, or
modify the RAP, the Regional
Administrator will provide the owner
and operator with a chance to comment
The Regional Administrator will also
provide the public with an opportunity
to comment. More details on the criteria
and procedures the Regional
Administrator will use in reviewing the
RAP appear in Section V.A.2.C.(2)(c)
below.
Implementation of response and
follow-up. Once the owner or operator is
required to implement a Regional
Administrator-approved RAP, the owner
or operator must sample the leachate to
determine hazardous constituent
concentrations and then select the
appropriate response action from the
Regional Administrator-approved RAP.
If constituent concentrations are below
health-based standards, the owner or
operator may continue following current
operating procedures. If, however,
constituents exceed the health-based
standards, the owner or operator must
implement the response action approved
in the RAP fpc leakage above health-
based standards. Within 60 days of
selecting and initiating a response
action under a RAP, the owner or
operator must submit a report to the
Regional Administrator that describes
how effective the response has been in
preventing migration out of the unit of
any leachate that exceeds health-based
levels. After reviewing this report, the
Regional Administrator may require
modifications or different responses that
are necessary to assure that migration of
leachate exceeding these levels does not
in fact occur. Finally, the proposed
regulations will also require ownera and
operators who are conducting responses
under approved RAPs to report to the
Regional Administrator any significant
increase in leakage rates. This report
must be submitted within 45 days of the
detection of the change and must
describe, among other things, any
change in the response that the owner or
operator has implemented or plans to
implement to address the increased
leakage. The Regional Administrator
may require additional or different
responses as necessary. If these
additional or different responses require
a change in the RAP, the Regional
Administrator will require the owner or
operator to submit a modification to the
plan and review it under the procedures
referred to above and described more
fully in section V.A.2.C. (2)(c) below.
Variance. The RAP may also provide
the owner or operator with an
opportunity to demonstrate at any time
that the elevated rate of liquid
appearing in the IDS is not the result of
a leak in the top liner, but rather from an
alternative source, such as fluids
trapped between the liners during
construction, or water that escaped
during consolidation of the compacted
soil component of a composite top liner.
The owner or operator will not be
required to implement the RAP if the
Regional Administrator approves the
demonstration before the deadline for
RAP implementation. If the
demonstration is not approved before
this date, the owner must begin to
implement an appropriate response. He
may halt all response activity, however,
as soon as EPA approves the
demonstration. The requirements for
this demonstration are described in
more detail in a separate section below.
(ii) RAP for Rapid and large leakage.
Many of the substantive and procedural
RAP requirements are the same for
leakage that, exceeds the RLL rate as
those discussed in the previous section
for leakage less than RLL. The
discussion below highlights the
differences. •
Initial responses. The RAP for leaks
exceeding RLL must be submitted for
certain existing units within'12 months
of promulgation of this rule and, for new
unite, before hazardous waste is placed
in diem. Consequently, EPA'will require
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
20239
the owner or operator to begin
implementing the RAP immediately :••
upon detecting leakage that exceeds the
RLL level.
Additionally, the RAP for RLL leaks
will require the owner or operator to
undertake more serious responses more
quickly. This program will require
operational changes that will reduce the
volume of leachate flowing into the
LDCRS, such as a partial cover or a limit
or restriction on receipt of liquid wastes
or repair of the liner in a surface
impoundment. EPA believes this more
stringent initial response is necessary
because leakage exceeding the RLL rate
interferes with the functioning of the
leak detection system. These large
leachate quantities can "swamp" the
LDS, making it difficult or impossible to
tell whether leak rates continue to
increase. This requires immediate
response to restore the function of the
LDS.
EPA is also concerned that the volume
of leachate between the liners in an RLL
situation may threaten the ability of the
containment system to prevent
migration. The large volume may
significantly increase the hydraulic head
that exerts pressure on the bottom liner,
and, consequently, increases the
possibility that contaminated leachate
may escape from the unit to contaminate
soil or ground water. Hence, EPA is
proposing to require all RAPs for RLL to
require owners and operators to
undertake immediate responses even
before sampling the leachate in the LDS.
EPA requires that this immediate
response would, at a minimum, involve
operational changes to reduce leakage
into the LDCRS between the liners. EPA
would also expect the RAP to include a
very aggressive immediate response
(such as immediate repair of the upper
liner) to be implemented if the volumes
of leachate in the leak detection system
indicate the possibility of a drastic leak
in the upper liner.
Sampling and major response actions.
During implementation of these initial
responses, the owner or operator must
also sample the leachate in the LDCRS
sump for the hazardous constituents
specified in the RAP. If concentration
levels do not exceed approved health-
based levels, the owner or operator will
not have to undertake further responses
if the head on the bottom liner is
minimized. If, however, they do exceed
health-based levels, the RAP will
require the owner or operator to
implement a Regional-Administrator
approved response action selected from
a broader range of actions in the RAP.
The range of appropriate responses will
be narrower for RLL leaks than for leaks
below RLL levels because the large
volumes increase the chance of system
failure. Appropriate responses would
include:
• Terminate receipt of waste and
close unit;
• Repair leaks expeditiously; and
• Introduce further or more
permanent operational changes to
reduce leakage first to a rate below RLL,
and ultimately, to a rate that prevents
migration out of the unit.
EPA believes that evaluatiqn of a
range of RLL rates is important at some
types of units, such as surface
impoundments, where scenarios exist
for top liner rates of leakage
significantly in excess of the RLL The
RAP should include an assessment of
the possible response activities not only
for RLL, but also for leakage
significantly in excess of RLL, if this
level of leakage is likely to occur at that
unit. The detailed assessments for rates
of leakage significantly in excess of the
RLL must address the same site-specific
factors required for assessments of the
possible RLL response activities. It is
expected that the RAP for leakage rates
significantly in excess of the RLL will
provide for extraordinary measures to
rapidly reduce the hydraulic head acting
on the bottom liner. Again, the goal of
the RAP will be to prevent migration out
of the unit of hazardous constituents at
concentrations exceeding health-based
levels.
Elimination of variance. The final
significant difference for a RAP for RLL
is the elimination of the variance
procedure. EPA has not been able to
imagine a scenario where other sources
of liquid, such as construction water,
could generate the quantity of liquid
required to meet the RLL test
Furthermore, even if all of the liquid
came from sources other than a leak in
the upper liner, the volumes involved
would threaten the ability of LDCRS to
function. Response action would be
needed to maintain the capability of the
LDCRS to detect additional new leakage
and minimize the head on the bottom
liner.
(c) Leachate quality levels. The issue
concerning what level of release of
hazardous constituents out of the unit
that must be prevented to protect human
health and the environment is relevant
in a broad range of regulatory contexts
currently being examined by EPA,
including closure and corrective actions
under RCRA and response actions under
the Comprehensive Environmental
Response. Compensation, and Liability
Act (CERCLA) programs. The Agency is
proposing today to use EPA-approved
health-based standards for setting the
maximum concentrations of hazardous
constituents deemed by EPA to meet its
prevent migration goal. It is EPA's
position that the assessment of
migration potential for hazardous -
constituents out of the unit will, in most
cases, need to be based on the quality of
the leachate in the leak detection system
and not on the projected quality of
leachate leaving the unit Therefore, if
hazardous constituents in the leachate
are below the health-based standards,
assuming a drinking water ingestion
scenario, the owner or operator would
not be required to initiate a response
action.
The Agency has used health-based
standards and criteria in several aspects
of the RCRA program that involve
protection of ground water, assuming
human consumption. For example, the
ground-water protection standards of
Subpart F, de-listing procedures of
Section 261, and clean closure process
under Sections 264.228 and 265.228 for
storage or treatment surface
impoundments involve the use of EPA-
approved health-based standards for
evaluating compliance with an
environmental performance standard.
The Agency believes that such
approaches are protective of human
health and the environment and is,
therefore, proposing to use the health-
based standards as the levels to which
the response action plan must prevent
migration of hazardous constituents out
of the unit
The owner or operator should use the
Maximum Contaminant Levels (MCLs)
established as drinking water standards
under the Safe Drinking Water Act as
the primary Agency-approved health-
based standards. The Agency is in the
process of proposing and finalizing
additional MCLs, and will continue to
do so over the next several years. The
Agency does not believe it is
appropriate to use the Maximum
Contaminant Level Goals (MCLGs),
since these criteria are hot considered to
be relevant and appropriate regulatory
standards.
Where no MCLs exist however, the
owner or operator should use the
Reference Doses (RFDs), for any
threshold constituents and the ' .
Carcinogenic Potency Factors (CPFs) for
non-threshold constituents, assuming a
risk level of 10~* for Class A and B
carcinogens and io~* for Class C
carcinogens. ;
Under certain circumstances, the
Agency believes that the levels based on
MCL& RFDs, and CPFs, as described-
above, may be lowered to ensure . ":i
adequate protection of human health
and the environment The Agency may
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
lower these levels, as appropriate, under
either of the following circumstances:
a. Where a mixture of contaminants is
present, resulting in exposure to multiple
contaminants that could cause adverse
effects on the same human organ; or
b. Where an unusual exposure
scenario or a vulnerable population at
the site requires a more stringent target
level.
If an EPA-approved health-based
standard does not exist for a hazardous
constituent, EPA is considering allowing
the owner or operator to base the
response action plan on not exceeding
the background ground-water protection
level for that constituent.
The Agency is in the process of
developing guidance on the use of
Agency-approved health-based
standards for protecting ground water in
the context of the clean closure and
corrective action regulations, and for
implementing the Subpart F provisions.
In the future, as additional Agency-
approved health-based standards are
developed, these sources of information
will be updated.
(2) Rule requirements—fa) Elements
of the RAP. The common RAP elements
for rapid and extremely large leakage
and for other leakage below RLL but
above the ALR are presented under
Sections 284.222 (b) and (e) and
conforming amendments to Subparts L
and N for permitted facilities, and
Sections 286.222 (b) and (e), and
conforming amendments to Subparts L
and N for interim status facilities. At a
minimum, the owner or operator must
inclnde the following site-specific
information in the RAP: (1) A general
description of the operation of the unit;
(2) a description of the hazardous
constituents contained in the unit; (3) a
description of the range of events that
may potentially cause leakage
exceeding both the ALR (if appropriate)
and RLL; (4) a discussion of the
important factors that can affect the
amount of liquid entering the leachate
collection and removal system between
the liners; (5) a description of major
mechanisms that will prevent migration
of hazardous constituents out of the
unit; and (6) a detailed assessment
describing the effectiveness of each of a
given range of possible responses. Each
of these categories of required
Information is briefly addressed below.
First, the response action plan must
include a general description of the
operation of the unit including whether
or not at closure the wastes win be
decontaminated in place, removed from
the unit, or left In place. The site-specific
information should include, as a
minimum, the type, size, and location of
the unit; the design of the unit including
details of the lining system; the
geographic and climatic setting; and the
operating history and practices at the
unit, including the age of the unit,
planned unit active life, ongoing
activities at the unit, volume of wastes
being stored or disposed, methods of
waste placement, equipment used,
intermediate cover practices, and the
closure plan.
Second, the response action plan must
also include a general discussion of the
hazardous constituents contained in the
unit. This discussion should include, at a
minimum, a summary of the results of
analyses carried out as part of the site-
specific waste analysis plan (Sections
264.13[b) and 285.13(b)) as well as
description of the physical
characteristics of tile waste.
Third, the response action plan must
include a discussion of all events that
may potentially cause leakage
exceeding both the ALR (if appropriate)
and the RLL. These potential causes will
be site-, design-, and operation-specific.
m general, they may include operational
accidents, design deficiencies identified
subsequent to the start of unit operation
(such as inadequate connections
between liners and liner penetrations
such as pipes and manholes),
unforeseen incompatible wastes,
equipment damage, unforeseen site
subgrade settlements, and catastrophic
natural events such as earthquakes or
tornadoes, if applicable.
Fourth, the response action plan must
include a discussion of the important
factors that can affect the amount of
liquid entering the leachate collection
and removal system between the liners.
These factors should include, but not be
limited to, the size and type of top liner
breach, the potential for additional
breaches in the future, the amount of
liquid head in the leachate collection
and removal system above, the top liner,
the potential for leachate generation in
the unit due to die moisture content of
the waste, the anticipated amount and
frequency of precipitation, and the
potential for surface water run-on. The
potential for sources of liquid other than
top liner leakage should also be
considered, including liquids from
construction water, consolidation of any
compacted soil component of the top
liner, or water due to ground-water
infiltration.
• Fifth, the response action plan must
include a description of major
mechanisms that wiH prevent migration
of hazardous constituents out of the
unit This description should include an
evaluation of the capabilities of the
entire land disposal unit as well as the
capability of each individual unit
component. Particular, attention should
be given to: the condition of the
composite bottom linen the condition
and operational capability of the leak
detection system between the top and
bottom liners; the condition and
operational capabilities of the top liner
and the leachate collection and removal
system above the top linen the potential
to repair or retrofit the top liner if the
RLL is exceeded; and the potential for
the use of intermediate covers and run-
on controls to limit leachate production
potential in the unit.
Last the response action plan must
include a detailed assessment
describing the feasibility of each of a
range of responses for preventing
hazardous constituent migration out of
the unit The discussion in section (bj
above sets out the range of acceptable
responses for RLL leakage and leakage
that is less than rapid and large.
In developing the site-specific
information for the response action plan,
the owner or operator should evaluate
the condition of the liners by reviewing
activities that have occurred at the unit
from the time of construction to the
present An analysis of the results of a
rigorous construction quality assurance
(CQA) plan should provide a good data
base to assess the condition of the liners
after construction of the unit Results of
CQA testing will be particularly
valuable if key areas of the liner were
tested hydraufically for leaks.
Other information that the owner or
operator may use in assessing liner
condition during development and
implementation of a RAP includes: (1) A
review of operational practices during
the active life, (2) leachate analysis to
indicate whether unanticipated waste
constituents are present, (3) coupon
testing .in the sump above the top liner of
a landfill or waste pile or in the waste at
a surface impoundment to determine
any chemical compatibility problems,
and (4) an assessment of operating
activities that may have damaged the
liner. A review of the double finer
system design can also reveal whether
the design concept had any weaknesses
that could increase the probability of a
liner breach. The evaluation of the
design will also indicate areas that
include redundancy or design .concepts
that will minimize leakage if a breach
occurs. This type of review of site-
specific information can often isolate
the location and extent of damage to a
liner and can provide information
showing that the .breach is the result of a
design, construction, or operational
activity. . '
In the specific case of a breach in the
top liner, the fuO extent of damage
typically cannot be determined without
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2O24t
a field investigation to evaluate the liner
condition. However, EPA believes that a
field evaluation, including inspection
and liner testing, is not currently an
appropriate across-the-board
requirement of the liner assessment
element of the RAP. Field evaluation
may be feasible in some cases where the
owner or operator has conducted
electrical resistivity surveys, performed
acoustical monitoring, conducted a
visual examination of a surface
impoundment after draining, or
performed evaluation of the working
face of a landfill. In other cases, as in a
landfill where the breach is under a
significant depth of waste, field
evaluation will not usually be feasible.
The owner or operator, when feasible,
may provide field data as part of a
response action plan to demonstrate the
condition of the liner.
Leakage bands. Since the likelihood
exists that leakage through the top liner
will fluctuate during the active life and
post-closure care period, the owner or
operator may develop a RAP that.
addresses a range of leakage bands with
corresponding responses. A leakage
band refers to a range of top liner
leakage rates. With a specific response
tied to a leakage band instead of a
single leakage rate, the leak can
fluctuate over time without the need to
implement a different response. EPA
believes that the responses should be
flexible enough to accommodate
reasonable fluctuations in top liner leak
rates.
Examples of response actions for
RLLs. To assist owners or operators in
understanding today's proposed rule,
EPA is providing three examples of
when certain response actions that may
be appropriate for three different RLL
scenarios.
The first example is a disposal surface
impoundment where both the top and
bottom liners have been breached as a
result of equipment falling into the
surface impoundment and the quality of
the leachate is above health-based
standards. After detecting rapid and
large leakage, the owner or operator
determines that removing the waste and
repairing the liners is not feasible. The
double liner system is no longer
functioning as designed, and migration
of hazardous constituents (exceeding
health-based standards) out of the unit . .
is expected. In this case, the appropriate
action is to drain the surface
impoundment and repair or close the
unit
In the second scenario, the owner or
operator of a surface impoundment
detects rapid and extremely large ,:
leakage between the liners above
health-based standards. The top liner
has been breached at the water line. An
assessment of the unit reveals that the
bottom composite liner and LDCRS have
not been damaged and continue to
function as designed to prevent leachate
migration into the ground water and
surface water. In this situation, the
owner or operator continues to collect
and remove leachate while draining the
impoundment below the breached area
and repairing the top liner. If repair is
not possible, the owner or operator may
elect to retrofit a new top liner over the
existing one, or alternatively, the RA
may allow operation of the unit with
reduced liquid depth so that the waste is
not in contact with the area of the
breach. Although this action is feasible
for a surface impoundment, in most
cases it would not be for a landfill.
The last scenario involves rapid and
extremely large leakage above health-
based standards caused by a major
storm (50-year storm) at a landfill where
repairing the leak is not feasible. The
landfill has a remaining active life of 6
months and will be closing shortly. The
LOCKS and bottom liner are functioning
properly. The FML component of the
composite bottom liner allows for rapid
and efficient leachate collection and
prevents migration into the liner. The
owner or operator proposes a RAP that
uses operational changes to reduce
leakage into the space between the liner
to a range of between 200-500 gpad for 6
months, and following that time, the unit
will be closed with an initial rapid
reduction in leakage. The operational
changes proposed include: placing
predominantly dry waste in the unit;
immediately covering active portions of
the unit as they are filled; covering daily
to significantly reduce the rate of liquid
infiltration into the waste; developing a
precipitation runoff system within the
unit; increasing the frequency of leak
detection and ground-water monitoring;
and developing a contingency RAP for
closure if the high leakage rate
continues or increases. This proposed
RAP would be acceptable.
The range of responses for leakage
less than rapid and large includes the
responses for RLL and adds the
following responses:
(1) The owner or operator continues to
remove and treat leakage with increased
ground-water monitoring. This response
may be appropriate for a unit where the
leakage periodically exceeds the ALR in
the range of 50-100 gpad. but the system
is functioning to protect ground water
and surface water. Although migration
out of the unit is not expected, the
facility is located near a sensitive
environment The owner or operator
continues to remove and monitor the
quality of leachate. The frequency of
ground-water monitoring and reporting
is increased to confirm that no leakage
is leaving the unit
(2) The owner or operator maintains
current operating practices because the
leachate quality in the LDCRS is below
EPA-approved health-based standards
for ground-water protection. An
example where this response may be
appropriate is a unit where the ALR is
exceeded infrequently and can be
correlated to heavy rainfall. Analysis of
the leachate has shown hazardous
constituent concentrations are below
EPA health-based standards.
Assessment of the double liner system
indicates the bottom liner and sump are
continuing to function as designed, and
leakage can be collected and removed
efficiently when it occurs. A second
example is where it has been shown
that the leachate in the LDCRS is most
probably due to a source other than top
liner leakage (e.g., consolidation of a
compacted soil component of the top
liner) and analysis of the leachate
shows it to meet the aforementioned
health-based standards.
Another example where maintaining
current operating practices might be
appropriate involves a landfill with a
leakage rate determined to be
approximately 100 gpad, and the owner
or operator will be closing the unit
within one year. Assessment of the unit
has shown that the remainder of the unit
system is functioning to prevent
migration of hazardous constituents out
of the unit Following RA approval, the
facility continues current operating
practices. The pumping rate is increased
to maximize leachate collection and
minimize the head on the bottom liner,
and leachate quality is monitored.
The owner or operator may develop
other appropriate responses that involve
operational changes at the unit EPA
believes that there should be some
flexibility in the responses allowed and
realize* that not all units will require the
responses discussed above. Therefore,
EPA is allowing the owner or operator
the opportunity to develop other
operational responses if they are
appropriate and protect human health
and the environment The response
chosen by die owner or operator and
approved by the RA will depend on die
unit design, construction and operation,
hazardous constituent concentrations in
die leachate, and other factors that .
. influence die leachate quality and
mobility. ,
Actions to take in implementing a
response acrtion plan (RAP). Sections
264i22(d), 28i222(g). 285^22(d), ,
28&222(g), and conforming amendments
to Subparts L and N of die proposed rule
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Federal Register / Vol. 52. No. 103 / Friday, May 29. 1987 / Proposed Rules
require the owner or operator to perform
the following actions after detecting
leakage above the ALR: (1) Notify the
RA in writing within 7 days of the
occurrence, (2) collect and remove
accumulated liquids. (3} immediately
implement the RAP (if already part of
the facility permit or interim status plan)
or submit to the RA within 90 days a
RAP developed after the occurrence (for
facilities where the RAP was not
preapproved), (4) immediately sample
the leachate in the LDCRS and
determine the concentrations as
specified in the RAP, and (5) report in
writing to the RA on the effectiveness of
the response as soon as practicable after
the response has been in place for 60
days, and annually thereafter for
leakage that is less than RLL. or at
subsequent time periods as specified by
the RA for RLL. These five actions are
described in more detail below:
(1) If leakage into the LDCRS exceeds
the ALR, the owner or operator must
notify the RA of the occurrence in
writing within 7 days after determining
that the ALR is being exceeded in
accordance with Sections 284.222(d}{l).
284.228fgKl), 2S5.222(dKt), 285.226{g}fl)
and conforming amendments to
Subparts L and N. The notification to the
RA must indicate preliminary liquid
volumes that have been detected.
collected, and removed.
(2) The owner or operator must
continue to collect and remove all
volumes of liquids that accumulate
between the oners following the
detection of leakage exceeding the ALR.
Leachate collection and removal
reduces the liquid bead on the bottom
liner, decreasing the potential for
migration out of the unit In mis way, the
leakage is being mitigated even before
the RAP is implemented; ttttm jg
especially important for greater leakage
rates.
(3) The owner or operator of a landfill.
surface impoundment or waste pile unit
at a permitted facility must implemient
the RAP immediately if it is part of the
permit For RLL, the RAP most be
included in the permit; for leakage less
than RLL, subaissioo with the permit
application is optional. If the RAP for
less than rapid and extremely large is
not part of tba permit, it is developed
after finding leakage exceeding the ALR
and must be submitted to the RA for
approval before implementation.
Procedures for submittal of the RAP to
the RA are discussed subsequently.
The owner or operator of an interim
status facility where the RAP was
submitted to the RA before receiving
waste (for RLL and, optionally, for
leakage less than RLL) must implement
the RAP immediately. The RAP for
leakage that is less than rapid and
extremely large may be submitted at
any time within 90 days after the ALR is
exceeded. A RAP prepared while the
facility is under interim status will be
included in the draft facility permit at
the time of permitting. The facility then
will be subject to the same requirements
under Part 284 (Sections 264.222, and
conforming amendments to Subparts L
andN).
(4) Immediately upon determining that
the ALR has been exceeded, the owner
or operator must sample the leachate in
the LCRS sump and have it analyzed as
specified in the RAP to determine the
concentration of specified Appendix
Vm hazardous constituents (40 CFR Part
261). The owner or operator must
provide the analytical results to the RA
at the earliest practicable time.
(5) Sections 284.222{dH5},
284.222(g)(5), 266.222(dM5), and
265.222(g)(5) and conforming
amendments to Subparts L and N
require that after the implementation of
a response activity, the owner or
operator must report to the RA on its
effectiveness. The report must describe
the effectiveness of the response action
in preventing, to the extent technically
feasible with current technology,
hazardous constituent migration out of
the unit in excess of EPA-approved
health-based standards for ground-
water protection. An initial report
demonstrating the effectiveness of the
RAP must be submitted to the RA by the
owner or operator and as soon as
practicable after the response action has
been implemented for 60 days.
Following this initial submittal. a report
must be submitted annually (for leakage
less than RLL) or at a time period
specified by the RA (for leakage
exceeding the RLLL These subsequent
reports submitted after the initial report
must discuss the effectiveness of the
ongoing response action program.
The RA will review the initial report
and subsequent reports on the
effectiveness of the response along with
the leachate quality analyses to
determine if the response selected is
preventing hazardous constituent
migration out of the unit The RA will
make this determination based on the
criteria discussed in Section
VJL2.c(2Kc) of this preamble. If the RA
or owner or operator determines that the
response activity is not eSsctive in
meeting these criteria, either at initial
itionov at any time
t to in
modification or plan amendment
(Section 264.222(d)(5)r 284.222fgH5),
265.222(d)(5). 265.222(g)(5). and
conforming amendments to Subparts L
and N). EPA believes that in most
cases, a RAP that is prepared prior to a
leakage event will need some revision
due to the difficulty in predicting site-
specific factors. Unit conditions and
operating practices may change from the
time of the RAP submittal and may,
therefore, need to be reassessed at the
time of the leakage event Any new
recommended responses must be
reviewed and approved by the RA. The
RAP review process will be an
interactive process between the RA and
the owner or operator in determining an
effective response activity that prevents
hazardous constituent migration out of
the unit EPA believes that in many
cases a RAP developed before waste is
received at a unit will require some level
of modification if tt is implemented.
EPA is aware that leakage rates can
fluctuate and change over time;
therefore, EPA fa today proposing a
requirement for the owner or operator to
identify sfgrnficeirt changes in the liquid
volume between the Hner during'
monitoring and submit a report to the
RA (Sections 284.222(Q. and 285.222fi)
and conforming amendments to
Subparts L and N). EPA believes a
"significant change'* to be of such a
magnitude mat ft cannot be attributed to
predictable, temporary fluctuations as
described in the RAP. The Agency
requests comments on what a correct
value for a significant change should be.
EPA is considering using a 100 gpad or
25-50 percent increase m leakage.
whichever is larger, to define a
significant change.
Today's proposed rule win require the.
owner or operator to submit a report to
the RA within 45 days detection of a
significant change in leakage rate. The
report must tnrihfifo an assessment of
the problem cauing the leakage
fluctuation and a determination of
whether the fluctuation is of concern. A .
fluctuation caused by heavy rain which
is infrequent may not be of concern,
whereas a spike determined to have
occurred as the result of a new top Haer
breach of considerable y««» would
definitely be of concern. The assessment
must include, at • minimum, a profile of
the RA wiH require the owner ot
operator to recommend an alternative
response action that is already . •• .
identified IB the RAP oriodevelop a
new response action as part of a permit
removed versus, time, and
charanterJMtinn cf cfaasqpa4»the,iatg
of top liner leakage.
Io the Report,theewoer or operator
win also tenqitfrad to t
B*
MSPOW
fts^feMBfette.
The RA will review me report «d wffl
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Federal Register / VoL 52. No. 103 / Friday, May 29. 1987 / Proposed Rules
20243
assess the appropriateness of the
revised response activities and
implementation schedule.
(b) How and when to submit a RAP.
The requirements for submitting a RAP
differ for permitted and interim status
facilities, and for RLL and leakage less
than RLL. For newly permitted facilities,
the owner or operator must include in
the permit application a RAP setting
forth actions to be taken immediately
following detection of rapid and
extremely large volumes of leakage
between the liners. The owner or
operator of a permitted facility that is
building a new unit or replacing a unit
must include a RAP for RLL in a request
for a permit modification. In either case,
the RAP must be approved before the
unit can receive waste.
For leakage rates less than rapid and
extremely large, the owner ox operator
of a permitted facility has the option to
submit the RAP with the permit
application or with a permit
modification or to submit a request for a
permit modification to the RA within 90
days of detecting leakage above the
ALR. A RAP submitted as part of die
permit application or modification must
be implemented as specified in the
permit. If a RAP is submitted after
detecting leakage exceeding the ALR,
the RA's approval is required before
implementation; however, the owner or
operator should make immediate efforts
to reduce leakage, and at a minimum,
carry out the activities under Section
264.222(g) and conforming amendments
to Subparts L and N.
The owner or operator of an interim
status facility required to comply with
the leak detection requirements must
submit a RAP for RLL 120 days prior to
accepting waste at the unit (Section.
26&212(a}. and conforming amendments
to Snbparts L and N). The owner or
operator of an interim status facility
also may choose to file a RAP prior to
receiving waste for leakage less than the
RLL. Alternatively, the RAP for leakage
rates above the ALR bat below the RLL
may be submitted to the RA when
leakage is detected (Section
286.222{eHl)(ii) and conforming
amendments to Subparts L and N). The
owner or operator must submit to the
RA a request to amend the RAP (for less
than RLL) within 90 days after
exceeding the ALR. Within 80 days of
receipt* the RA will approve, modify, or
disapprove the RAP or will request to
have the RAP amended.
(c) EPA review of the RAP. The RAP
is submitted to theRA for review either
as part of the permit application, as a
request for permit modification, or as a
plan in me case of interim status .
facilities. TheRA will review and
approve or disapprove the RAP
264.222{c)(l). 264.222(f)(l).,and- ;
265.222(f)(l), 285-222(c)(l), and
conforming amendments to Subparts L
and N. The RA will approve the RAP if
he determines that the plan prevents, to
the extent technically feasible with
current technology, hazardous
constituent migration out of the unit at
concentrations in excess of EPA-
approved health-based standards for
ground-water protection..
In making this determination. EPA
will consider the overall design,
operation, and performance of the unit,
as well as several specific factors which
will include, but not be limited to (1) the
actual or anticipated types and
concentrations of hazardous
constituents in the leachate between the
liners, (2) the mobility of the hazardous
constituents in the actual or anticipated.
leachate, (3) the degree to which the
liquid head on the bottom liner will be
minimized by implementation of-the
RAP. (4) the rate of top liner leakage and
the cause of this leakage, (5) the current
condition of the liners and leachate
collection and removal systems. (6) die
design and current condition of the
entire double liner system. (7) future
planned activities including remaining
active life time period, and closure and
post-closure care activities, and (8)
environmental factors such as the
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeologic setting.
Each of these factors is briefly
addressed below.
In considering the acceptability of a
RAP, the RA will review the actual or
anticipated types, concentrations, aad
mobilities of the hazardous constituents
in the leachate between the liners. The
quality of the leachate will be evaluated
for at least two criteria. (If the potential
threat it poses to human health and the
environment, and (2) the potential
deleterious effects the leachate may
have on the physical properties of fining
system components. With respect to the
first criteria, if the leachate meets EPA-
approved health-based standard* for
ground-water protection, human health
and the environment are protected and
the only necessary response activity will
be continued pumping of teachata and
periodic monitoring of leachate quality.
However, if hazardous constituent
concentrations exceed the oealai-based
standards, additional response activities
may be required. In addition, tf At
actual or anticipated teacfaate-contauu •
significant concentrations of hazardous
constituents, the RA will expect (he RAP
to address the potential deleterious
effects of the constituents on 4a Uniog
system components (e»gA sweUingnrf
FMLs or synthetic components of the
leak detection system).
In reviewing the RAP, the RA will also
consider the degree to which the liquid
head on the bottom liner is minimized.
This is an important consideration, as
the rate of leakage through a defect in
the FML component of a composite
bottom liner is proportional to the
hydraulic head acting on top of the
bottom liner. Since leakage through an
FML defect would be the most probable
cause of leakage into and through a
composite bottom liner, the hydraulic
head on the bottom liner must be
minimized If leakage into and through
the bottom liner is to be minimized.
The RA will also consider the rate of
top liner leakage and the cause of
leakage. If the rate of leakage is stable
and relatively low, and if the cause of
leakage is believed to be well
understood and not progressive, then
limited response actions, such as an
increased frequency of leachate
monitoring and removal, may be
acceptable to theRA. Causes of leakage
that night fall into this category include
top liner breaches associated with an
operational accident or leakage through
a connection between the top liner and
a pipe or other structure penetrating me
liner. On the otaerhand, if the rate of
leakage is nigh or is increasing over
time, or if it is believed that Ifae causes
of top liner failure is progressive (eg.,
due to chemical taoompatibUttjr between
the liner and te«"^tet*3, then more
rigorous response actions wulttcely be
required. . •
The RA witt also evaluate the design
and current condition of the double rarer
system as well as the design and current
condition of the individual luring system
components. The Part B permit ;
application. CQA documentation and ..
operating report, will be used In the
assessment The Part B permit
application win be reviewed to ensure
proper material selection and design.;
CQA documentation will be reviewed to
establish that the system components .
were properly installed and to identify
potential problem aseas. Unit •operating
records wflibe reviewed for events that
may have resulted in ^ top liner breach
or in deterioration, clogging, or other , •".
malfunction of a system component. The
current condition of the .entice doufata
liner system wal be reviewed to
understaitd-the degree to which, the • ... • ,.
overafrsystamcan function to meet the
l of preventing migration of
The overall Uningsysieni will also W
reviewedlsr any «pedal feature* v .
beyosid thtmhamua technology^ r
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20244 Federal Register / Vol. 52, No. 103 / Friday. May 29, 1987 / Proposed Rules
requirements that might enhance the
containment capabilities of the unit.
In reviewing the RAP, the RA will
look at future planned activities. In
particular, the RA will review at what
stage the unit is in its active life. For
example, if a landfill were to exhibit top
liner leakage in the range of several
hundred gallons/acre/day early in its
operational life, operational changes,
Intermediate covers, or other measures
would be expected response activities in
the RAP to reduce the rate of top liner
leakage. However, if the landfill were
near the end of its active life, and
review of the planned closure and post-
closure activities showed the plans to be
acceptable, and if the LDCRS and
bottom liners were believed to be
functioning properly, the RA might
accept more limited response activities,
such as increased leachate monitoring
and removal, for the remaining active
iflQt
Lastly, in assessing the acceptability
of a RAP, the RA will consider site-
specific environmental factors. These
factors include the amount and
frequency of precipitation (which will
influence the leachate generation
potential of a unit), and weather
extremes.
EPA is currently developing technical
guidance for owners or operators and
regulatory authorities to assist them in
the development, review and
Implementation of response action
plans. In this guidance document,
factors that must be considered in a
RAP, and criteria for evaluation of a
RAP will be presented in detail.
Comments are solicited on the
appropriate factors and criteria to
include in the guidance document
Tho RA will Identify in the RAP
monitoring activities for specific
hazardous constituents identified in 40
CFR Part 281, Appendix Vm.
Specifically, the RA will require the
owner or operator to test the liquids In
the sump of the LDCRS to determine
whether specified hazardous
constituents are present Other chemical
and physical properties for testing may
also be identified by the RA.
Permitted facilities. Sections 284.222
(c) and (f) and conforming amendments
to Subparts L and N, propose review
and approval procedures that EPA will
use for the RAP (RLL and other leakage
rates). This review will occur in the
context of the 40 CFR Part 124
permitting procedures described below.
After completing review of the RAP as
part of a permit application or request
for a permit modification, the RA either
will deny the permit or permit
modification and notify the owner or
operator or will prepare a draft permit
or permit modification. The RA will give
notice of the draft permit or permit
modification in the Federal Register. A
30-day public comment period and
public hearing will follow the
notification. Thirty days after the close
of the public comment period, the RA
will decide whether to approve, modify,
or disapprove the permit or permit
modification. The decision as well as
the response to public comment will be
published in the Federal Register.
If the permit or modification
(including the RAP) is approved, the RA
will prepare the final permit. If the
permit requires modification, the owner
or operator will be notified and given 30
days to respond.
Interim status facility. Sections
265.222 (c) and (f), and conforming
amendments to Subparts L and N
propose review and approval
procedures EPA will use for the RAP
(RLL and other leakage rates). After
receiving a RAP, the RA will provide
public notice of the plan through a local
newspaper. A 3O-day public comment
period will follow the notification. The
RA, in response to public request or his
own discretion, may also hold a public
hearing. The RA will approve, modify, or
disapprove the plan within 90 days of
receipt If the RA does not approve the
plan, he will notify the owner or
operator in writing of the reasons, and
the owner or operator will be required to
submit a new or modified plan within 30
days. The RA will approve or modify
this plan within 60 days, at which time
this plan becomes the approved RAP.
(d) Demonstration showing-alternative
source of liquids. Sections 264.222(h).
and 285.222(h). and conforming
amendments to Subparts L and N
propose a variance from continued RAP
implementation for leakage less than
RLL if the owner or operator of a
permitted or interim status facility can
demonstrate that the leakage is from a
source other than the top liner. Upon
triggering the ALR, the owner or
operator has the opportunity to
demonstrate that the top liner ALR .
appears to have been exceeded because
of an error in sampling, analysis, or.
evaluation; or the top liner ALR has
been exceeded due to sources of liquid
such as liquids trapped between the
liners during construction, or water due
to consolidation of a compacted soil
component of a composite top liner. .
The owner or operator will not be
required to implement the RAP if the.
demonstration is approved before the
specified implementation time of the
RAP. The response action can be
discontinued after a successful
demonstration if implementation had
already begun. This opportunity for a
variance applies to leakage less than
RLL, EPA's position is that not all of a
RLL can be attributed to sources other
than leakage through the top liner such
as construction water. Rapid and
extremely large leakage volumes would
be of concern in any case.
The owner or operator is required to
notify the RA in writing as soon as
practicable of the intent to make a
variance demonstration for liquids from
a source other than top liner leakage.
Within 90 days of this notification, the
owner or operator must submit a report
demonstrating that the liquid resulted
from a source other than top liner
leakage. The demonstration by the
owner or operator must contain
sufficient scientific and technical
information to clearly show, the source
of the liquids. The report must include
all data, analyses, documentation, and
calculations used to make the
demonstration. If the RA approves the
demonstration, the response action, if .
already implemented, can be . :
discontinued. The owner or operator
then must submit an application for a
permit modification for permitted
facilities or plan modification for interim
status facilities. The application must
make appropriate changes to the RAP (if
the plan was prepared previously) at the
unit within 90 days of the RA's approval
of the demonstration. A successful
determination by the RA will result in
discontinuing the response action for the
current leakage, as described in the .
approval notice, and the modification of
the permit or plan. The owner or
operator may be required to monitor the
leachate volumes more frequently and'
provide periodic leachate analyses to :
assure that conditions remain similar. If
the RA determines the demonstration is
not successful, the owner or .operator
must continue RAP implementation.
Any subsequent Increases in leakage
or hazardous constituent concentration
above that specified in the
demonstration will reinitiate the RAP,
unless another demonstration is
successfully completed and approved by
the RA. In some cases, the
demonstration approval may require a
reduction in the leakage rate to, a rate
specified in the demonstration within a
certain number of years. An example of
this would be a demonstration based on
water trapped during construction. The
RAP also may be reinitiated if the owner
or operator does not comply wjth the
requirements of the demonstration
approval. • ' '• . '". - - '•.. •''••' ' ' • '•
The EPA allows the owner of operator
to make demonstrations as provided *
above, because EPA beneves tnat iHere
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Federal Register / Vol. 52. No. 103 / Friday, May 29. 1987 / Proposed Rules
20245
is a need for a certain amount of
flexibility in the leak detection
requirements. EPA's position is that the
requirements cannot be rigid and all-
inclusive.
(e) Significant change in leakage rate.
Sections 264.222(i) and 265.222{i) and
conforming amendments to Subparts L
and N, propose requirements for
significant change in leakage rates. If
during monitoring of leakage, the owner
or operator detects a significant increase
in the leakage rate, he must submit a
report to the RA within 45 days
including the following information:
(1) An assessment of the problem
causing the leak that includes a profile
of liquid quantity collected and removed
versus time, and characterization of
changes in the rate of top liner leakage;.
(2) A description of any change in the
response to be implemented as
approved in the RAP.
(3) A schedule for implementation;
and
(4) Other information that the owner
or operator deems appropriate to fully
describe the response that will be
implemented.
If the RA determines that the current
RAP needs to be modified the owner or
operator must submit an application for
a permit modification (within 60 days)
or an interim status plan amendment
(within 120 days) to make any
appropriate modifications to the RAP.
The procedures in 40 CFR Part 124 will
be applied to permitted facility permit
modifications. Procedures modelled
after the 40 CFR Part 265.112 closure
plan procedures will be applied to
interim status plan amendments.
(f) An example of a RAP. The
following is an example of a RAP for a
surface impoundment:
Facility Description: The site is a 1.8
acre surface impoundment with rough
dimensions of 200 feet by 3SO feet The
surface impoundment will contain 11
feet of liquids with two feet of
freeboard. The sidewall slopes are
3H:lV. The pond design incorporates a
bottom composite linen a leachate
detection, collection, and removal
system (LDCRS) between the bottom
and top linen and a top liner comprised
of two sections, a composite section
across the base and a single FML on the
side slopes.
No protective cover is provided above
the top FML The drainage media for the
LOCRS conaists of a 0.25 inch thick
synthetic drainage layer with an in-
plane hydraulic conductivity of 10 cm/
sec. The minimum bottom slope of the
surface impoundment is 2 percent.
The surface impoundment rs located
above the historical high w«ier table,
'ftinfoll averages about-40inches per
year, and the temperature ranges from
95 3F down to —20 °F. Run-on drainage
control is prevented by the judicious use
of ditches and berms.
Response Action Plan: A response
action plan has been submitted and the
following specifics have been
established:
The action leakage rate (ALR) is 15
gallons per acre per day. This value was
selected as an example from the range
proposed in today's rule. This value is
only slightly higher than the value
determined by analysis of leakage by
using conservative assumptions of liquid
head and liner breaches and defects.
The rapid and large leakage rate (RLL)
is determined to be 3,000 gpad. The
sump system was alsa evaluated and
found to be capable of handling the RLL
value of 3,000 gpad without a resultant
rise of over 1 foot of liquid on the
bottom liner (a factor of safety of two is
included in this calculation; i.e., the
system is actually designed to remove
about 6,000 gpad without 1 foot of head
buildup). EPA considered this level of
safety factor to be appropriate m a
situation where a significant
remediation action is necessary to
ensure continued performance of the
LOCRS system.
The RAP states that the response
action plan for leakage rates between
the ALR and the RLL will be developed
if leakage exceeds the ALR.
Construction and operation activities
and operating record data on the past
performance of the unit will be reviewed
in determining the appropriate response
activities to be implemented if the
leakage rate exceeds the ALR and is
less than the RLL value. The RAP will be
submitted to the RA for approval before
implementation.
Some examples of expected probable
causes of a liner breach would be a
seam failure or puncture caused by an
accident as the ponds were filled or
cleaned, an accident caused by human
or animal activities in and around the
ponds, or weather-induced accidents,
such as wind-driven ice chunks
impinging on exposed liner material.
These breaches most probably would
occur on the side slopes near the liquid
level and would result in an almost
immediate increase in leachate detected
at the sump. The response would be the
same for most leakage rate increases,
which would be an immediate
inspection of the exposed liner to
determine if a liner breach had'occurred
at a location where it could be repaired
immediately.
If the breach is at the liquid level, the
owner or operator will lower the liquid
level below the breach to repair it. ff the
breach is below the liquid level, it may '
be possible to locate the leakage area by
electrical resistivity or acoustical
methods (other techniques may be
equally satisfactory) and then determine
a plan of action.
Location of a significant breach is not
expected to be difficult because there
should be an immediate reduction in the
leakage rate shortly after the pond liquid
level is lowered below the breach. It
also should be relatively easy to identify
the breach location by electrical
resistivity or acoustic survey. Once a
repair is implemented, the leakage rate
should provide an almost immediate
indication of the effectiveness of the
repair.
If the RLL occurs, no further liquid
will be placed in the ponds. The liquid
level, will be lowered as necessary to
complete a survey of the exposed liner.
The unit will not be placed back into
service until the owner or operator
demonstrates to the RA that the leak in
the top liner has been repaired to
control the leakage rate.
3. Proposed Rule for Land Treatment
Units
The goal of land treatment is to
reduce the hazardousness of waste
applied in or on the soil through
degradation, transformation, and
immobilization processes. EPA believes
that land treatment can be a viable
management practice for treating and
disposing of some types of hazardous
waste. However, the general approach
to preventing hazardous constituents
from migrating into ground water is
somewhat different for land treatment
units than for other land disposal units.
At surface impoundments, waste piles,
and landfills this objective is met by the
double liner and leachate collection
system and the final cover that prevent
liquids from entering die unit and
migrating into the subsoils. Land
treatment units are dissimilar to other
land disposal units in that they are not
designed and operated to minimize
liquid releases to ground water. On the
contrary, they are open systems 'that
freely allow liquid (without hazardous
constituents) to move out of the unit
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 die "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
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20246
Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
types of land disposal in that they act to
prevent hazardous constituents from
migrating into the environment.
Because land treatment depends upon
a number of soil and waste interactions
for success, it is especially important
that the unit be carefully operated and
monitored. The current design and
operating requirements under Parts 264
and 265 require an owner or opera tor of
a land treatment unit to monitor the
unsaturated zone to provide information
that he will use in modifying his
operating practices to maximize the
success of treatment processes. The
principle objective of the current
unsaturated zone monitoring
requirements is to provide effective
management of liquids in the unit to
minimize the risk of ground-water.
contamination. At surface
impoundments, waste piles, and
landfills this objective is met by the
double liner and leachate collection
system, and the final cover that prevents
liquids from entering the unit and
migrating into the subsoils.
Both soil-core and soil-pore liquid
monitoring are required in existing EPA
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 data
on fast-moving, highly soluble
hazardous constituents that soil-core
monitoring may miss.
For example, if a significant increase
of a hazardous constituent is detected in
unsaturated zone monitoring, the owner
or operator is required under the
existing Part 284 to examine more
closely the unit characteristics that'
significantly affect the mobility and
persistence of that constituent These
significant unit 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.
EPA is today proposing leak detection
requirements for new land treatment
units under the authority of 3004(o) of
RCRA and for existing land treatment
units under the authority of 3004(a) of •
RCRA. The Agency believes that.
requiring leak detection at existing land -
treatment units, while not mandated by
RCRA, is necessary to assure protection •
of human health and the environment
because it prevents hazardous
constituent migration from the treatment
zone. Additionally, due to the nature of
the unit, leak detection can be
implemented as easily at an existing
land treatment unit as at a new land
treatment unit.
a. Permitted facilities. The current
regulations for land treatment at
permitted facilities under Part 264
require the following:
(1) The owner or operator must obtain
a detailed chemical and physical
analysis of a representative sample of
the waste to establish what hazardous
constituents will be at the unit (40 CFR
264.13).
(2) The owner or operator must
provide a clear definition of the
treatment zone.
(3) The owner or operator must
demonstrate that hazardous constituents
in the waste can be completely
degraded, transformed, or immobilized
in the treatment zone (40 CFR 264.272).
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. Second, it defines the initial set of
waste management practices (including
waste application rates) that will be
incorporated into the facility permit.
(4) The owner or operator must
design, construct, operate and maintain
the unit to maximize the degradation,
transformation, or immobilization of
hazardous constituents in the treatment
zone. The RA will specify waste
application method and rate, measures
to control soil pH, measures to enhance
microbial or chemical reactions,
measures to control moisture content,
run-off and run-on control, wind
dispersal control, and weekly inspection
after storms (40 CFR 264.273).
(5) Food chain crops cannot be grown
in or on the treatment zone unless the
owner or operator can successfully
demonstrate that there is no substantial
risk to human health (40 CFR 264.276).
(6) The owner or operator must
establish an unsaturated zone
monitoring program capable of
determining whether hazardous
constituents have migrated below the •
treatment zone. (40 CFR 284.278). 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 constituehts.-in-tnef treatment
zone-It is this section of the existing* -
land treatment program that EPA is
proposing to amend today to cover the
leak detection requirements under
Section 3004(o)(4) of RCRA.
The monitoring program must include
both soil-core and soil-pore liquid
monitoring. The owner or operator is
required to monitor immediately below
the treatment zone to determine if
statistically significant increases in the
concentrations of hazardous
constituents have occurred.
Under the existing Part 264 regulation
the appearance of hazardous
constituents below the treatment zone
does not in itself constitute a violation.
The Agency is today proposing that the
Part 284 land treatment regulations be
applied to interim status units as part of
the leak detection system. Additional
requirement, discussed below will also
be included.
In today's proposal, EPA is adding
new leak detection requirements for
both new and existing land treatment
units. Although RCRA only requires leak
detection at new units, EPA believes
that existing units can comply with the
standard in the same manner.
Installation of soil-pore liquid
monitoring equipment as well aff soil- •
core sampling can be accomplished as
easily at a new as an existing unit.
Therefore, existing units should be
required to provide the same level of
protection for human health and the
environment.
Today's proposal expands the current
Part 264.278 unsaturated zone
monitoring requirements by adding the
following new requirements: (1) •
Detection of leakage at the earliest
practicable time; (2) a 95-percent
confidence level for detecting hazardous
constituents below the treatment zone;
(3) monitoring to be conducted above
the seasonal high water table; (4) a
response action plan (RAP) for
widespread leakage; and (5) inspection
of unsaturated zone monitoring
equipment These new requirements are .
explained briefly in the following
paragraphs (for further information see
the Liner/Leak Detection Background
Document). . '.-... . . • -;
1. Earliest Practicable Time. Sections
264.278(a) and 266,278(8) of today's
proposal require detection of leakage-
out of the treatment zone at the "earliest
practicable time". EPA interprets tile
term "earliest practicable time" as the
quarterly unsaturated zone monitoring •
period. Migration.** contardinuiU at • '
land treatmentiaoiUties would1 generally
be slow and fiPA believes'detection of ff
statistically significant increase of
hazardous- constituents below/ the < - • •
treatment zone within a monitoring • :
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 f Proposed Rules
20247
period would allow sufficient time to
protect grpundwater and surface water.
2. Confidence Level. In Sections
264.278(b) and 265.278(b) of today's
proposal, EPA is adding to the existing
requirements a 95-percent confidence
level of detecting hazardous constituent
migration out of the treatment zone.
Land treatment units have no barrier to
downward migration, and ground water
can be located as close as 1 meter to the
bottom of the treatment zone (Section
264.271(c)(2)). For this reason. EPA
believes that the owner or operator must
detect leakage out of the unit at the
earliest practicable time and at the 95-
percent confidence level to assure
protection of ground water and surface
water.
Today's proposal requires the use of a
95-percent confidence level of detection
because the unsaturated zone
monitoring generally is less reliable in
detecting hazardous constituent
migration from the treatment zone than
a drainage-type leak detection system.
By requiring a 95-percent confidence
level EPA is assuring that the .
unsaturated zone monitoring system will
consist of a sufficient number of
sampling points at appropriate locations
and depths to determine the spatial and
temporal variations in constituent
concentration through the treatment
zone. A well-managed and properly
designed site with uniform waste
application will require fewer sample
locations than a poorly managed site.
The owner or operator must consider
site-specific variations and the inherent
uncertainty associated with soil-core
and soil-pore liquid sampling procedures
for the analysis of certain hazardous
constituents (e.g., volatile organic
chemicals). The owner or operator must
characterize the total treatment zone as
well as individual lysimeter results.
EPA is proposing the confidence level
value to be 95 percent as a result of
recently developed guidance on
unsaturated zone monitoring. Detailed
information explaining what the owner
or operator must do to comply with this
requirement is explained in Permit
Guidance Manual on Hazardous Waste
Land Treatment Demonstrations (Utah
Water Research Laboratory, July 1986,
NTIS PB 86229-184) and Permit
Guidance Manual on Unsaturated Zone
Monitoring for Hazardous Wasteland
Treatment Units (US. EPA, October
1986. EPA/53O-SW-88-040).
3. Monitoring Location. Sections
264.278(d) and 265.278(d) of today's
proposal require that soil-core and soil-
pore liquid monitoring be conducted
immediately below the treatment zone
and entirely above the seasonal high
water table (SHWT). To determine the
SHWTat a facility, the owner or.
operator must use the SHWT data
published for that region for the smallest
area encompassing the facility.
Current regulations require
unsaturated zone monitoring below the
treatment zone but do not specify that
the monitoring must also be above the
SHWT. In order to detect contamination
before it reaches ground water, EPA is
requiring monitoring above the ground-
water table. Today's proposal requires
the owner or operator to install all
lysimeters and collect all soil cores
above the published SHWT. By
requiring monitoring above the SHWT
the owner or operator can be assured
that soil-core samples and soil-pore
liquid samples are collected within the
unsaturated zone throughout the year.
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 soils sampling.
Thirty cm (12 inches) of soil will be
sufficient in 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
SHWT) 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
specified In local soil surveys (which
have many times been conducted by the
Soil Conservation Service and State
Agricultural Extension Agency), will
often fluctuate over time. In most cases,
EPA believes that the one-meter soil
buffer will adequately account for this
fluctuation.
4. Response Action Plan. Existing
regulations (Section 264.278) require the
owner or operator to report to the
Regional Administrator (RA) within 7
days when there is a statistically
significant increase of hazardous
constituents below the treatment zone.
The owner or operator also must submit
to the RA within 90 days an application
for a permit modification to modify the
operating practices at the facility to
maximize the success of degradation,
transformation, or immobilization
processes in die treatment zone.
Sections 284.278(1) and 285.2780) of
today's proposed rule require the owner
or operator to develop a response action
plan (RAP) after the effective date of
this rule, for widespread leakage before
waste can be received. The RAP will:
specify actions to take upon finding
widespread leakage. Widespread
leakage is denned as a statistically
significant increase (as defined in the
guidance manuals cited above) in
concentration of hazardous constituents
at a specified percentage of the
unsaturated zone monitoring points.
EPA has not chosen a percentage but
believes it should be within the range of
50-90 percent. EPA is requesting
comments on an appropriate value for
defining widespread leakage or on
whether an alternate approach would be
more appropriate. Comments on
whether the distribution of hazardous
constituent concentration below the unit
should be assessed and how the results
of that assessment should be addressed
are also requested.
The owner or operator of a new land
treatment facility, that has not yet
received a permit, must submit a RAP
for widespread leakage with the permit
application. For an existing land
treatment unit that does not meet the
RAP or other requirements specified hi
Sections 284.278 and 284.284 on the date
of promulgation of this final rule, the
owner or operator must submit an
application for a permit modification to
the RA by the effective date of this rule
and receive RA approval. New units or
replacements at existing faculties must
submit a RAP and a request for a permit
modification and receive RA approval
before receiving waste. The RAP for
land treatment contains similar
information requirements as discussed
previously for landfills, surface
impoundments, and waste piles. These
include: (1) General description of the
unit operation, (2] a description of the
hazardous constituents contained in the
unit, (3) an assessment of potential
causes of widespread leakage of
hazardous constituents from the
treatment zone. (4) a discussion of
important factors that can affect leakage
of hazardous constituents from the
treatment zone, (5) a description of
major mechanisms that will prevent
migration of hazardous constituents out
of the treatment zone, and (6) a detailed
assessment describing the effectiveness
and feasibility of each potential
response as described subsequently.
The RA will review die RAP and will
approve, disapprove, or modify the plan.
following the same procedures as for
other type* of units (Section V.A3.C. of
this preamble). •• • .:- - - •
Upon detecting widespread leakage,
the owner or operator must implement
the RAP immediately and notify the RA
in writing within 7 days. With this
notification, the owner of operator must
include preliminary constituent •
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20248 Federal Register / Vol. 52. No. 103 / Friday, May 29. 1987 / Proposed Rules
concentrations and the extent of the
contamination. Preliminary constituent
concentration refers to the
concentration of any hazardous
constituent monitored that significantly
increases above background (see
guidance manuals cited above). Any
area of the unit containing hazardous
constituents at concentrations
significantly above background levels
will be considered part of the
contaminated area. Notification for
leakage that is less than widespread is
already required under existing
regulations (Section 264.278{g)),
The possible courses of action to take
upon finding widespread leakage
include changing the operating practices
or closing the facility. Changing the
operating practices may include
changing the type of waste treated, the
timing of application, a reduction of the
amount of waste applied, or a reduction
in the application frequency. Closing the
facility may be necessary if changing
operating practices cannot be shown to
be protective of ground water and
surface water or if the owner or operator
finds the changes to be cost prohibitive.
The EPA considered other possible
response actions but did not choose to
include them in today's proposal These
actions include increasing the frequency
of ground-water monitoring, installing a
cover over the unit, and excavating the
unit The EPA takes the position that
more frequent ground-water monitoring
would be too slow to detect
contamination and does not achieve the
goal of preventing ground-water
contamination. The installation of a
temporary landfill cover over the unit or
part of the unit is counter to the
principles of land treatment, which is to
allow natural aerobic processes to
degrade watte. The last option
considered by EPA is requiring
excavation of the unit and disposal of
the contaminated soiL Although this
option, would be expensive compared to
closing the unit, hi some instances-it
may be the only way to prevent
groundwater contamination. EPA is
requesting comment on whether to
include any other response actions in
the final rule and specifically requests
comments on excavation of the unit as
an option.
5. Inspection. The new Section*
284.28* and 286J283 being added in
today's proposal require the owner or
operator to establish an inspection
program for the unsaturated zone
monitoring equipment during the active
life and the post-closure care period of
the facility. The program established
must allow for determining
deterioration, malfunction, or improper
operation of unsaturated zone
monitoring equipment. The program also
will determine the effectiveness of
controls implemented in response to
hazardous constituent migration beyond
the treatment zone, the concentrations
of which statistically exceed
background levels. Under section 264.15,
the owner or operator will be required to
keep a detailed log of all inspection
information to demonstrate compliance
with unsaturated zone monitoring
permit requirements. The RA may
require additional inspection and
monitoring requirements hi the permit to
ensure detecting hazardous constituent
migration out of the treatment zone at
the earnest practicable time. Inspection
and monitoring requirements contained
in the facility permit must prevent
hazardous constituent migration so that
ground water and surface water will not
be contaminated.
b. Interim status facilities. The current
40 CFR Section 285.278 regulations for
unsaturated zone monitoring for interim
status facilities require the owner or
operator to have an unsaturated zone
monitoring plan designed to detect
vertical migration of hazardous
constituents below die active portion of
the land treatment facility. While
permitted facilities are required to
follow the leak detection program,
interim status requirements are self-
implementing by the owner or operator.
EPA involvement is sometimes
necessary. In these instances EPA has
found the use of a plan facilitates EPA
and owner or operator interaction.
Therefore, today's proposal is requiring
the owner or operator of an interim
status facility to develop and retain at
the faculty an muatnrated zone
monitoring plan.
The interim status monitoring-plan
must provide background
concentrations of hazardous waste and
constituents. The plan must include the
use of soil cores for sofl monitoring and
lysimetera (or other such devices] for
soil-pore liquid monitoring. It should be
noted that the existing interim status
requirements are less stringent than the
existing Part 264 requirements for
permitted facilities. For example, there
is no requirement that owners or
operators of interim status facilities
modify their operating practices if mere
is a statistically «fgninr-anf increase of
hazardous constituents as is required for
permitted unite under Section 264278.
In today's proposed role, EPA is '
replacing the current Section 26R278
requirements with the existing Section
264.278 requirements and the proposed
land treatment leak detection
requirements discussed in Section •
V.A.3.a. Accordingly, the leak detection
program for interim status land
treatment facilities will be essentially
the same as that for permitted facilities.
We believe that this is appropriate
because the level of confidence needed
for protection of human health and the
environment for an interim status
facility is the same as that for a
permitted facility.
The major difference in the proposed
regulations for interim status and
permitted facilities is the mechanism for
implementing the above requirements.
Permitted facilities are required to
establish a leak detection program
through the permit process, while
interim status requirements are
implemented through an unsaturated
zone monitoring plan. The plan provides
interaction between the owner or
operator and EPA concerning the
specifics of the unsaturated zone
monitoring. Under Section 265^78 the
owner or operator must develop and
implement an unsaturated zon«!
monitoring plan which incorporates the
existing 284.278 requirements in addition
to the leak detection land treatment
requirements proposed today. The
Agency will briefly discuss these
requirements and explain these
standards.
(1) Proposed interim status monitoring
plan requirements. The unsatnrated
zone monitoring plan must include at
least the following:
(a) A description of how the owner or
operator will monitor the soil and soil-
pore liquid to determine, at the earliest
practicable time, whether hazardous
constituents have migrated out of the
treatment zone over all areas- Hceiy to
b» exposed to waste and teackoto
daring the active life and pott-doeura
care period It* description sanst
identify the hazardous oonstttaents or
the principal hazardous coMtttuente
(PHQ to be monitored {Section
285.278(8}).
(b) A description of the number,
location, and depth of soil-pore hquid
monitoring devices, sneh asrystoeters,
and soil sampling points necessary to
represent to a 95-percent confidence
level the quafity of soil and soli-pare
liquid below the treatment zone and the
quality of background sofl and soil-pore
liquid quafity (Section 20&278(b)}.
(c) A description af fte.methodology
for P«tnhH«h{«lg lmcIrOT«nyi^ VgllHH fof
each hazardous constituent to be
monitored (Section 26&278(c&.
(d) Adescriptioaof the-icaqnancy,
timing, and depth of softaad soil-pore
liquid monitoring based on the
frequency, timfag. and ratcof waste
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Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules 20249
application and the soil permeability
(Section 265.278(d)}.
(e) A description of sampling and
analytical procedures designed to
ensure sampling results that provide a
reliable indication of soil-pore liquid
quality and the chemical makeup of the
soil below the treatment area.
Procedures for sample collection,
sample preservation, shipment, and
analytical procedures for the chain-of-
custody control should be included
(Section 265.278(e)).
(f) A description of the statistical
procedure to determine if there is a
significant increase over background
values in the monitoring data. This
description must include the time after
sampling within which such a
determination will be made. The plan
must specify a statistical procedure that
is appropriate for the distribution of
data used to establish background
values and that provides a reasonable
balance between the probability of a
false determination and failure to
identify migration (Section 285.278{f)).
(g) A RAP that describes actions to
take upon finding widespread leakage
(Section 265.278{j)).
Although the requirements under
Section 264.278 and 265.278 are. similar,
they differ procedurally. The monitoring
plan for interim status facilities must be
submitted to the RA for review and
approval by the effective date of the
final rule. Public notification of the plan
will be provided through a local
newspaper notice. A 30-day public
comment period will follow and a public
hearing may be held in response to
public request or at the RA's discretion,
when such a hearing may clarify one or
more issues concerning die plan. The
RA will give public notice of the hearing
at least 30 days before it occurs. (It may
be given at the same time as the notice
of the opportunity to submit comments).
The RA will approve, modify, or
disapprove the plan within 90 days of its
receipt If the RA does not approve the
plan he will pro vide, the owner or . . .
operator with a detailed written
statement of the reasons for his
disapproval and the owner or operator
must modify the plan or submit a new
plan. The RA will approve or modify
this plan in writing. If the plan is
modified, it will become the approved
plan. . /• •
(2) Amendments to the interim status
monitoring plan. In today's proposal, if
the owner or operator determines that
there is a statistically significant
increase of hazardous constituents
below the treatment zone or that
widespread leakage has occurred, the
owner or operator must notify the RA in
writing within 7 days of the occurrence.
The submittal must include the identity
and preliminary concentrations of
constituents detected. An amended
operating plan must be submitted to the
RA within 90 days of the occurrence,
demonstrating that operating practices
have been modified sufficiently to
maximize the success of degradation,
transformation, or immobilization
processes in the treatment area.
After the modified plan has been
submitted to the RA. the public will be
notified through a local newspaper. A
30-day public comment period will be
held, as well as a public hearing, if
necessary. Within 30 days following the
close of the comment period, the RA will
approve, disapprove, or modify the plan.
If the plan is disapproved, the owner or
operator will be notified and will have
30 days to respond. Following the public
comment period the RA will make a
final decision whether to approve the
plan.
c. Demonstrations. Upon determining
that there is a statistically significant
increase in hazardous constituents
below the treatment zone, the owner or
operator of a permitted or interim status
facility may choose to demonstrate that
a source other than the land treatment
unit caused the increase. The owner or
operator also may demonstrate that
what appeared to be an increase
resulted from an error in sampling.
analysis, or evaluation. (Sections
264.278(h) and 285.278(h).
To make this demonstration, the
owner or operator must notify the RA
within 7 days of the statistically
significant increase of hazardous
constituents below the treatment zone
and his intent to make a demonstration.
Within 90 days, the owner or operator
must submit a report to the RA
demonstrating that the source is not
from the land treatment unit or that
there was an error in sampling, analysis,
or evaluation. The RA will review the
demonstration report and notify the
applicant as to whether or not such a
determination is successful The
applicant is allowed 45 days to comment
on such a determination. The RA will
respond to these comments and make a
final decision on the applicant's
demonstration. If the RA approves die
demonstration, then the owner or
operator must also submit within 90
days a modified unsaturated zone
monitoring plan to make any
appropriate changes (interim status) or a
request for a permit modification
(permitted). The owner or operator must
continue to monitor as specified.
B. Extension of Double Liner
Requirements
Under the authority of Section 3004(a)
of RCRA, EPA is proposing to extend the
double liner and leachate collection
system requirements to (1) new waste
piles and lateral expansions and
replacements of existing waste piles; (2)
significant portions of existing landfills,
surface impoundments, and waste piles;
and (3) new units, lateral expansions,
and replacements of existing units at
landfills, surface impoundments, and
waste piles at facilities permitted before
November 8,1984.
EPA believes these requirements are
necessary to protect human health and
the environment by preventing
migration- of hazardous contituents out
of the unit and contamination of ground
water and surface water.
Under the current regulations, waste
piles and significant portions of
landfills, surface Impoundments, and
waste piles must have single liners
(either clay or FML depending, on the
unit) with a LCRS above .the liner (for
landfills and waste piles). LanffiHff and
surface impoundments, and ' "'
replacements and lateral expansions of
landfills and surface impoundments at
facilities permitted before November 8.
1984 are not required by EPA to have
liners if the units were existing before
1982; conversely, if these units were in
existence subsequent to the effective
date of the rule, they were required to
have either day or FML liners,'
depending upon the type of unit
Based on the data presented in the
Liner/Leak Detection Background
Document the Agency believes that
single liners are inadequate to protect
human health and the environment
There is a greater potential for leachate
migration through a single liner man a
double liner.'Since there is a reasonable
probability that damage to the top liner
may occur, the Agency believes met a
double toner system with a LCRS
between the linen to collect and remove
liquids provides a mechanism to ensure
that migration out of the unit is
prevented.., • , .
.-.. EPA believes mat a double liner.
system incorporatrag'leachate- collection
between the lm*rsJ«*nv most eases •
sufficient to prevent migration-of. •••
hazardous constituent* out of -the unit If
a double liner system is employed at a
land disposal unit, the modeling data
that the Ageney has garnered indicate
that there will be^minimal hazardous
constituent migration from the unit
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20250
Federal Register / Vol. 52, No. 103 / Friday. May 29. 1987 / Proposed Rules
1. Waste Piles
(a) Background. 40 CFR 264.251(a)
currently requires permitted waste piles
to have a single liner that is designed,
constructed, and installed to prevent
any leachate migration out of the waste
pile and into the surrounding
environment during the active life (and
the closure period if applicable) of the
waste pile. The liner may be constructed
of materials (such as low-permeability
soils) that allow leachate migration into
the liner as long as the Kner prevents
any migration of waste out of the pile
into the adjacent subsurface soil, ground
water or surface water at any time
during the active life. A leachate
collection and removal system (LCRS)
that is designed, constructed.
maintained, and operated to collect and
remove leachate from the waste pile is
required directly above the liner (40 CFR
284.251(a)). An owner or operator of a
permitted facility whose waste pile is
inside or under a structure that provides
protection from precipitation so that
neither runoff nor leachate is generated
is exempted from liner and leachate
collection and removal system
requirements provided that: (1) Liquids
or materials containing free liquids are
not placed in the waste pile; (2) the
waste pile is protected from surface
water run-on by the structure or in some
other manner; (3) the waste pile ia
designed and operated to control waste
dispersal by wind, where necessary, by
means other than wetting; and (4) the
waste pile will not generate leachate
through decomposition or other actions.
For waste received beginning May 8,
1085, the owner or operator of an interim
status-waste pile is subject to the
requirements for liners and leachate
collection systems under 40 CFR 264.251
for each new unit, replacement of
existing unit, or lateral expansion of an
existing unit that is within the area
identified In the Fart A permit
application.
In. today's proposal, EPA is requiring
double liners and leachate collection
and removal systems for waste piles
because we believe that waste piles
pose a potential threat to human health
and the environment similar to the
threat from landfills. There is, however,
one difference between the double liner
requirements for landfills and those for
wostt piles. 40 CFR 264J01 provides
that the liner most function or operate
during the active H£s and post-closure
care period for a-landfill. This provision
is somewhat different for waste pile»
under today's- proposal which specifies
that the linen and ieachate collection
and removal systems for waste pile
units only need to function or operate
during the active life of the waste pile
(Section 264.251(c}). Current regulations
require waste piles to decontaminate or
remove the waste at closing (40 CFR
264.258), thus obviating the need for
post-closure care. This difference,
however, may be of minimal impact
because the active life of a waste pile
can be equivalent to or longer than the
combined active life and post-closure
care period for landfills.
EPA assessed the potential for
migration of leachate from waste piles
through a modeling study (see Liner/
Leak Detection Background Document).
This study indicates that the potential
for migration from a waste pile is almost
equivalent to the potential for migration
from landfills. Because EPA has
imposed double liner and leaehate
collection system requirements for
certain landfills, the Agency's position is
that it is appropriate to do the same for
certain waste piles, given ground water
migration considerations.
Moreover, EPA believes that waste
piles have a greater potential for
equipment-related liner damage than
landfills, because daring the active Hfe
of a waste pile, equipment is used to
remove and replace waste periodically.
Because waste ra not removed from
above the liner at a landfill, the liner is
not exposed to such heavy equipment
operation. Equipment-related liner
damage has the potential to allow
constituent migration beyond the waste
pile, thus increasing the potential for
leachate migration out of the unit If the
liner is breached in a single-lined '
waste pile, there would be no backup
liner to contain leachate. Therefore, we
believe today's proposed double finer
and leachate collection system
requirements are appropriate, m
addition, it wooki not be possible to use
the proposed teak detection system if
the unit is not doable lined. Therefore,
an alternate leak detection system
would have to be used at single-lined
waste pites. EPA believes that the
proposed double liner aad leachate
collection and removal system
standards are an integral component for
leak detection systems at waste piles
containing liquids or exposed to
precipitation. The leak detection system
proposed for waste piles is the best
mechanism for providing information
about any potential leakage rate,
quality, and sources of detected liquids.
Moreover, EPA believes that there are
additional reasons why unenclosed
waste piles in particular merit double
liners and LCRSs. EPA believes that
these unenclosed waste piles generally.. -
have a higher percentage of their waste
areas exposed to precipitation than
landfills do and that waste generally is
exposed to precipitation for a longer
period at waste piles than at landfills.
Most landfill owners or operators
partially close their units on a periodic
basis by placing a temporary or
intermediate cover over the in-place
waste to minimize leachate generation.
Therefore, these unprotected waste piles
have a greater potential for leachate
generation. In addition, the active life
for a new landfill unit is typically 6
months to 5 years, while a waste pile
may be used for storage for a much
longer period, hi some cases for 20 years
or more.
As a result of all of the above-cited
factors, EPA believes waste piles pose a
threat to human health and the
environment similar to landfills. Since
double liners and LCRSs are required
for landfills, EPA believes ft is
appropriate to require the same
standards at waste piles in order to
protect human health, and the
environment.
(b) Proposed rule—(1) Doable Hner
and leachate collection aad removal
system standards. Today EPA is
proposing a double liner system tor aew
lateral expansions and replacements of
all permitted waste piles irrespective of
when the permit was received (Section
264.251) and interim status waste piles
(Section 265J54). This rule is effective 6
months after the date of promulgation.
Owners or operators of waste pile* may
qualify, however, for the exemption
contained in Section 284.250 for totally
enclosed waste piles. A» discussed
herein, variances for certain monofiUs
and approved alternative designs may
be granted.
EPA is proposing today to require
owners or operators of new waste piles
and lateral expansions or replacements
of existing waste pites to install double
liners and leachate collection and
removal systems that essentiairjr are
equivalent to those for laadfiBs ia the
Proposed Codification Rule of March 28,
1986 (51FR10707-12). As witb landfills,
EPA is not proposing to reqmre
retrofitting of existing waste pites.
Today's proposed doable Kner
requirements call for a flexible
membrane oner (FML) top Hner and a
bottom liner of either a compacted clay
or, alternatively, a composite liner
consisting: of « FML top component and
apt
ridayk
ap<
nt
Owners oropsratocs also: ate reqafaed
to install»tractate collection and
removal system above fte top ibwr and
between fee JfaMm On April 17,1987,
EPA issMdHszatdoos Waste . -
Management; Minimum Technology
Requirements: Notice of AvafleoBfty of
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1967 / Proposed Rules
20251
Information and Request for Comments,
which showed that compacted clay
bottom liners may impair the leak
detection sensitivity and the detection
time, and collection efficiency of the
leachate detection, collection, and
removal system (LDCRS). EPA currently
is evaluating the comments received on
that Notice. For the reasons set forth in
the Notice, EPA believes that it is likely
that we will require the composite
bottom liner as the generally applicable
standard in the finalization of the
double liner requirement for surface
impoundments, waste piles, and
landfills. We have not proposed the
requirement for a composite liner as the
basic standard in this rule to allow EPA
the option of allowing both types of
bottom liners for now, and to be
consistent with the March 28,1988
proposed double liner rule for landfills
and surface impoundments.
EPA believes that, based on
information now available for the
Agency (and discussed in the Notice),
the composite bottom liner, or an
equivalent design, will be required in the
final double liner requirements for
waste piles, surface impoundments and
landfills.
EPA invites comments about whether
such double liners and leachate
collection and removal systems are
necessary at waste piles to protect
human health and the environment
Comments are requested to provide data
that may show that alternative
requirements for waste piles provide
adequate protection of human health
and the environment. In addition, EPA
believes that there exists a wide range
of operating conditions and active life
periods for waste piles. EPA is
interested in comments about whether
today's proposal is appropriate for all
waste piles or if alternative liner and
leak detection system requirements
might be applicable for some types of
units. EPA encourages owners or
operators to provide information and
data about this issue.
(2) Totally enclosed units. Today's
proposal exempts the owner or operator
of a new waste pile or of a lateral
expansion or replacement of an existing
waste pile from the double liner and
leachate collection and removal system
requirements if the waste pile complies
with the requirements of 40 CFR
264.250(c). This regulation currently
allows an owner or operator to be
exempted from the single liner
requirements if: (1) The waste pile is
inside or under a structure that provides
protection from precipitation so that
neither runoff nor leachate is generated;
(2) liquids or materials containing free
liquids are not placed in the pile; (3) the
pile is protected from surface water run-
on by the structure or in some other
manner; (4) the pile is designed and
operated to control waste dispersal by
wind, where necessary, by means other
than wetting; and (5) the pile will not
generate leachate through
decomposition or other reactions. EPA
today is proposing to continue this
exemption for the owner or operator of a
new waste pile, lateral expansion, and
replacement of an existing waste pile at
a permitted facility who meets these
conditions from the double liner system
requirements. If the owner or operator
meets the foregoing conditions, the
waste in the waste pile will have such a
low water content that no free liquids
will be present, and no leachate will
drain out of the waste pile at any time
after placement.
Totally enclosed waste piles that
contain liquid or waste that will
generate leachate do not qualify for the
40 CFR 264.250{c} exemption. EPA
recognizes that enclosed waste piles
with moist waste will have a greatly
diminished capacity for leachate
generation compared to unenclosed
wastes from precipitation. However,
because the active life and operating
practices (frequency of waste .
"turnover") of the waste pile are
unrestricted, significant amounts of
leachate can be generated within
enclosed units. In addition, enclosed
waste piles are allowed a hydraulic
head above the liner to no more than 30
cm (one foot) 40 CFR 264^51(a)(2). This
level of liquid above the liner represents
a mechanism for migration potential
similar to that for landfills and
unenclosed waste piles. Thus, the
Agency believes it appropriate to
require minimum technology double
liner systems for enclosed waste piles
containing moist wastes that will
generate leachate. EPA requests
comments on this, issue and encourages
owners or operators to submit
information and data about operating
practices at existing facilities that
support the appropriateness of today's
proposal, or alternatively, that provide
the basis for modified requirements.
(3) Leak detection requirements for
totally enclosed units. The proposed
leak detection rule allows the owner or
operator to use an alternative leak
detection technology. Because waste
piles that qualify for the waiver under 40
CFR 284^50{c) are not required to meet
the double liner and leachate collection
and removal system requirements under
Section 284.251, a drainage layer type of
leak detection system would not be
possible. Recognizing this, EPA's
position is that the owner or operator of
a waste pile that qualifies for a waiver
under 40 CFR 264.250(c) should be able
to use an enclosure and waste
inspection program as an alternative
leak detection system. If no enclosure
leaks or run-on are detected and the
waste pile contains no free liquids, then
the waste pile would not be considered
to be leaking. The owner or operator
using this type of alternative leak
detection system would be required to
maintain the waste pile in a condition
such that it would meet the
requirements of 40 CFR 264.250{c).
EPA believes that an inspection
program in which the owner or operator
inspects the waste pile after every
precipitation event (rain, snow, or ice)
and checks the waste pile and enclosure
for leaks would satisfy the requirements
of Section 3004(o){4) of RCRA. For
example, the owner or operator would
check the roof and sidewalk of the
enclosure for leaks, the floor of the
enclosure for paddles or wet spots, the
waste pile for signs of moisture
infiltration and lastly, the perimeter of
both the waste pile and enclosure for
signs of runoff or seepage. By inspecting
the enclosure and waste pile in this way
after each precipitation event, EPA is
satisfying the statutory mandate of
requiring leak detection at the "earliest
practicable time."
EPA believes the owner or operator of
a protected waste pile, meeting the
requirements of Section 264£SO(c),
should have the option of implementing
the proposed enclosure inspection
program as an alternative to the leak
detection system. If the owner or
operator of an enclosed waste pile does
not meet the requirements of Section
264.250(c), a leak detection system must
be installed that meets the leak
detection system performance standard
for detection sensitivity and detection
time under Section 284.251 (g), (h), (i),
and (j). The Agency is seeking
comments about the types of systems
that could satisfy the leak detection
system performance standard for
detection sensitivity and detection time
at waste piles that have single liners
and leachate collection and removal
above the liner or that have no lining
system at alL
(4) Variances. Current regulations
provide owners or operators of
permitted (40 CFR Part 264) and interim
status (40 CFR Part 265) wofaoe
impoundments and landfills with certain
exemptions from the nrimnuHa
technology doable liner standard*. One
type of exemption (e.g.. Section
284.221(d)} applies if the owner or
operator can demonstrate mat
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20252
Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
alternative design and operating
procedures together with location
characteristics will prevent the
migration of any hazardous constituents
into ground water or surface water at
least as effectively as the minimum
technology double liner system. The
second type of exemption (e.g. Section
264.221(e]) applies to certain types of
monofills. EPA is proposing today to
extend these two types of exemptions
for landfills and surface impoundments
to waste piles. EPA believes tiiat
extension of these exemptions to waste
piles is appropriate because: (I) Waste
piles falling under the exemptions will
handle wastes similar to those at
landfills and surface impoundments; and
(2) waste pile lining systems have
similar designs and design lives to
landfills and surface impoundments.
Today's proposed rule presents a
variance for double liners and leachate
collection and removal systems for
waste piles under Sections 264.251(d)
and 265.254{c). To receive a variance
under these sections, the owner or
operator must demonstrate that
alternative design and operating
procedures, together with location
characteristics, will prevent the
migration of any hazardous constituents
into ground water or surface water at
least as effectively as a double liner
system required under Section 264.251(c)
or 265.254(0).
The owner or operator of a permitted
waste pile must apply to make a
variance demonstration as part of a new
permit or as a permit modification. For
interim status units, the owner or
operator must submit a variance request
to the RA and have the variance
approved by the RA before receiving
hazardous waste. EPA is using
procedures similar to the interim status
closure plan development and approval
process under Section 265.112 (see
Section V.A.3.b.(l)). The public
participation process found in Section
265.112 is applicable also. The
regulations on variances do not require
a specific administrative procedure.
When EPA finalizes this rule, we plan to
employ the interim status closure plan
procedures (40 CFR 265.112) for variance
approval However, it is EPA's position
that this demonstration must be a
comprehensive state-of-the-art
evaluation that is representative of the
potential worst-case scenarios. The
owner or operator seeking a variance
must include a complete description of
the waste pile components, unit .
operation, and location characteristics.
The description should include sufficient
information for the RA to determine that
the proposed-waste pile provides the
same level of protection of ground water
and surface water from contamination
as a waste pile with a minimum
technology double liner system.
Concerns that the owner or operator
should consider in developing a
variance demonstration include, at a
minimum:
(1) Waste (types; quantities; porosity;
hydraulic conductivity; waste
interactions; mobility in unsaturated/
saturated zone, etc.)
(2) Unit components (liners; leachate
collection and removal system;
detection system; cover design;
intermediate cover layers; construction
quality assurance (CQA) program for
design and construction; etc.)
(3) Unit operation (treatment, storage,
or disposal; length of the active life;
leachate removal; repair of a leaking
linen etc.)
(4) Location characteristics
(precipitation; climate; unsaturated
zone; saturated zone; flood plain; etc.)
In making a variance demonstration,
the owner or operator will need to
demonstrate to EPA quantitatively how
the proposed alternative design and
operating procedures satisfy double
liner system and leak detection system
performance criteria. These criteria may
include those proposed today for the
LDCRS (detection sensitivity and
detection time) as well as other criteria,
such as collection efficiency. Also, the
owner or operator may be required to
demonstrate that the hydraulic modeling
methodology used to make the
demonstration is at least as
conservative as that considered today
for the LDCRS design. The owner or
operator may be required to provide
independent documentation and
verification of the proposed design
approach (including who developed the
approach, their credentials and
experience; laboratory bench- or full-
scale physical demonstrations;
numerical simulations; assumptions of
the approach; clear and complete report
presentation, etc.). The owner or
operator may be required further to
present quantitative results using the
alternative design approach, along with
various failure scenarios, including
scenarios where primary design
components are assumed to fad and a
secondary system becomes necessary to
minimize releases- to the environment
For these scenarios, the owner or
operator may be required to report such
things asr (1)-Maximum rate of leakage
out of the unit for a given scenario; (2)
duration of leakage; (3) breakthrough ;
time; (4) cumulative leakage out of the
unit; and (4) potential response actions.
Examples of situations that the
Agency is considering for approval of a
variance from these design requirements
include:
1. A landfill or waste pile receiving
only wastes treated to the land disposal
restriction BOAT levels and having a
low rate of net infiltration due to
climatic factors or engineering controls.
2. A unit located and/or designed to
have low rates of net infiltration and
long times of travel to the saturated
zone.
3. A unit receiving wastes with
completely immobilized hazardous
constituents.
4. A surface impoundment where
active physical, chemical, or biological
processes rapidly degrade all of the
unit's hazardous constituents.
5. A unit operated solely for the
purposes of short-term storage.
These samples are illustrative of the
types of design, operation, and location
characteristics the Agency is
considering a variance from the design
requirements. The Agency requests
comments on the appropriateness of
these conditions for approval of a design
variance.
Today's proposal provides a second
variance from the double liner system
requirements under Sections 264.251(e)
and 265.254(d) for owners and operators
of monofills containing only hazardous
wastes from foundry furnace emission .
controls or metal casting molding sands
if such wastes do not contain
constituents that would render the
waste hazardous for reasons other than
the EP toxidty characteristics in Section .
261.24,40 CFR Ga. 1. To obtain a waiver,
today's proposed rate further requires
that the wast6 pile have at least one
liner for which there is no evidence that
the liner is leaking. For purposes of the
waiver, the "liner" means either a liner
designed, constructed, installed and
operated to prevent hazardous waste
from passing tato the liner at any time
during die active life of the facility, or a
liner designed, constructed installed,
and operated to prevent hazardous
waste from migrating beyond the liner
during the active iaVof the facility. It
also requires the monofill to be located
more than orie-quartermile from an
underground source of drinking'water
(as defined by Section 144.3,40 CFR Ch.
1) and, lastly, to be in compliance with
generally applicable ground-water
momtoring requirements for facilities '•••
with permits under R6RA Section •• -: --
3005(e). The owner or operator may be •
exempVfrorotodaysrequirementsif the
untt meets tbtfreqttirefawDui&r Waste •<•
piles pefHrittedprldr to November 8, —
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20253
1984 as discussed in Section V.B.3.
(Sections 264.251(f) and 265.251 (f)).
2. Significant Portions
As discussed previously, under the
authority of Section 3004(o) of RCRA,
EPA has imposed minimum
technological requirements (i.e., double
liners and leachate collection and
removal-systems) for surface
impoundments and landfills. Today's
proposed rule extends EPA's minimum
technology double liner system
standards to significant portions of
existing surface impoundments
(Sections 264.221(c) and 265.221(a)),
waste piles (Sections 264.251(c) and
265.254(a)), and landfills (Sections
264.301(c) and 265.301{a)). This
requirement would go into effect 24
months after promulgation of today's
proposed rule.
(a) Background. EPA's current
regulations require units not covered
with waste at permit issuance to install
a single liner (with a leachate collection
and removal system above the liner for
a landfill or waste pile). This means that
even if a landfill or surface
impoundment unit is exempt from the
double liner standards, any portion of
the unit not covered with waste at
permit issuance is still subject to EPA's
current single liner standards in
Sections 264.221(a), 264.251(a). and
264.301(a).
The statutory authority to implement
a requirement for a minimum technology
double liner system for significant
portions of existing units is in RCRA
Section 3004{a). This statutory provision
provides EPA with the authority to
promulgate regulations protecting
human health and the environment at
new land disposal facilities or facilities
in existence on the date of promulgation
of such regulations.
EPA is proposing to require double
liners and leachate collection and
removal system! for those portions of
landfill, surface impoundment and
waste pile unite that are not defined as
existing portions in Section 260.10, do
not have a liner system that meets the
Part 264 single liner standard, and meet
the definition of a significant portion.
The single liner requirement will remain
in effect until the significant portions
rule becomes effective.
(b) Proposed rule—(1) Double liner
standard. The proposed rule defines
"significant portion" (in the amendments
to Section 260.10) as:
any unlined area of a unit that has not
received waste and. if double-lined before
receiving waste, would significantly reduce
the potential for migration of hazardous
constituents out of the unit thereby reducing
the potential for ground-water and surface-
water contamination. _.*''*t'_';-:r"~. ;" ;
The phrase is used in revisions to the
Part 264 design and operating
requirements for surface impoundments,
waste piles, and landfills.
The surface impoundment proposed
regulation (Section 264.221) reads as
follows:
(c) The owner/operator of each new
surface impoundment each new surface
impoundment unit at an existing facility, each
replacement of an existing surface
impoundment unit, and each lateral
expansion of a surface impoundment unit
must install two or more liners and a leachate
collection system between such liners. This
requirement shall apply to the owner/
operator of all such units, regardless of the
date of permit issuance, as well as to the
owner/ operator of significant portions of
surface impoundment units, effective 24
months after promulgation of this rule. The
requirements of this paragraph apply with
respect to all waste received after the
issuance of the permit or modified permit
The liners and leachate collection system
must protect human health and the
environment
The language of the proposed waste
pile regulation (Section 264.251 (c)) and
landfill regulation (264.301(c)) is
virtually identical to that specified for
surface impoundments. This change is
simultaneously made for interim status
surface impoundments, waste piles, and
landfills as a result of the requirements
under Sections 265.221(a) and
conforming amendments to Subparts L
and N, that required owners or
operators to install liners and LCRSs in
accordance with Sections 264.221 (c) and
conforming amendments to Subparts L
and N of this chapter.
The Agency is proposing that,
effective 24 months after promulgation
of this rule, owners or operators of
permitted and interim status landfill.
surface impoundment, and waste pile
units that qualify as existing units
provide a minimum technology double
liner system on those unlined areas
upon which waste has not been placed if
such a double liner system would
significantly reduce the potential for
adverse human health and
environmental impacts from the unit
EPA is allowing 24 months because we
bek'eve it may take that long to install
linens with ongoing placement of waste.
The Agency is also proposing in
today's rule to amend the present single
liner requirements. Under the proposal,
the owner or operator would be required
to provide double liners and LCRSs for
significant portions of unlined areas of
existing units. Owners or operators of
nonsignificant portions would,
conversely, not be required to line these
portions of the unit We believe mat by
requiring significant portions of units to
be double lined would minimize the
potential for leachate migration.
(2) Exemption from leak detection
requirements. Today's proposed rule
does not require a leak detection system
to be installed at the significant portions
of any unlined areas that have not
received wastes at existing units
(interim status and permitted). We
believe it would be unreasonable to
require leak detection at significant
portions for several reason. One reason
is that the possibility of leakage from
other areas of the unit could cause a
false indication of leakage through the
top liner of the significant portion. Also,
EPA is not requiring leak detection for
significant portions because of potential
problems from requiring a response
action. EPA believes that response
actions to migration out of a unit should
be developed and implemented on a unit
basis. If there are different operational
requirements for different portions of
one unit it would be difficult or
impossible to determine if the portion of
the unit with more stringent operational
controls is meeting its specific
requirements. This is because current
monitoring techniques would not be able
to determine which area of the unit was
leaking. Therefore, EPA would not know
whether or not the "significant portion"
was in compliance with the double liner
standards.
(3) Description of "significant
portion". Today's proposal defines
"significant portion" of any unlined area
of a unit that has not received waste as
that portion which, if double lined
before receiving waste, would
significantly reduce the potential for
migration of hazardous constituents out
of the unit thereby reducing the
potential for ground-water and surface-
water contamination from the unit
(Section 280.10). If lining an unused
portion of an existing unit would result
in significant reductions in the potential
for hazardous constituents to migrate
out of the unit then the unused portion
would be considered "significant" and
the owner or operator would have to
install doable linen and LCRS. One of
the main criteria in determining
significant portions is the size of a unit's
area that would be double lined. The
second criterion is the amount of
leachate that the double liner system
would collect and remove.
These criteria far-distinguishing
significant portions from nonsignificant
portions are not meant to be precise
because EPA believes that a more
flexible standard is needed. This
standard will cover areas in existing
units that require site-specific
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
evaluation by EPA and, therefore,
require more flexibility than the
evaluation of a new facility. However,
the following examples provide
guidance on EPA's thinking of what are
significant and nonsignificant portions:
• An example of a "significant
portion" of an existing landfill unit
would be an exposed unlined bottom
area of several acres that was not
covered by waste. If waste were to be
placed in this area of the unit with
double liners and leachate collection, a
significant benefit to human health and
the environment would likely result,
because large amounts of leachate
would be collected and removed over a
5-year period.
• An example of a portion of an
existing unit that may not be a
"significant portion" is the unlined area
of a surface impoundment located above
the liquid surface level that would be
covered with waste if the liquid level
were raised.
• In most cases, "significant portions"
will be those areas in a unit where the
addition of a double liner system will
provide hydraulic control of leachate or
liquid waste and ensure collection and
removal
• "Significant portions" may include
both the bottom and sidewalls of
existing units.
The primary purpose of requiring
minimum technology requirements for
significant portions is to provide these
portions with the same level of
protection that other newly constructed
land disposal units provide by
controlling migration of hazardous
constituents out of the unit to prevent
ground-water contamination. By
requiring a double liner system for
significant portions, EPA is minimizing
the total number of landfill, surface
impoundment, and waste pile units that
can receive hazardous waste without
providing the same level of human
health and environmental protection as
other unit* with minimum technology
double liner systems.
(4) Variances. Under today's proposal,
owners or operators of significant
portions of permitted and interim status
units wanting to use designs different
from those specified under the minimum
technology requirements may do so if
they can demonstrate that the
alternative design and operating
procedures, together with location
characteristics, will prevent the
migration of any hazardous constituents
into ground water or surface water at
least as effectively as a minimum
technology double liner system.
The owner or operator of a permitted
unit must apply for a permit
modification to make such a variance
demonstration. For interim status units,
the owner or operator must have the
variance demonstration approved before
receiving hazardous waste. A
description of the components of this
variance demonstration was given
previously in Section V.C.l.(b)(5) of this
preamble.
Today's proposed rule also provides a
provision for owners or operators of
significant portions of permitted or
interim status facilities to seek a waiver
from the double liner system
requirements for monofills containing
only hazardous wastes from foundry
furnace emission controls or metal
casting molding sands if such wastes do
not contain constituents that would
render the waste hazardous for reasons
other than the EP toxicity characteristics
in Section 261.24,40 CFR Ch. 1. Further
requirements to obtain such a waiver
were given previously in Section
V.C.l.(b)(5) of this preamble.
(5) Issues. One issue with which EPA
is concerned is that owners or operators
of existing units may initiate rapid
lateral spreading of waste onto areas of
significant portions that are uncovered
with waste in an effort to circumvent the
proposed double liner system
requirements before this rule is
promulgated. EPA is considering
restricting the potential for any lateral
spreading by requiring owners or
operators of existing facilities affected
by this proposal to document clearly
that wastes were placed in a "normal"
manner up to the date this rule becomes
effective. EPA requests comments on
this issue and whether this
documentation should be used by the
permitting agency before rendering a
decision as to whether an unused
portion of an existing facility is a
significant portion.
A second issue, particularly for waste
piles and landfills, is whether the
working face of the unit should be
considered part of a significant portion.
If so, the entire working face would be
subject to minimum technology double
liner system requirements. While
placing a lining system on the working
face is desirable, the practicality of
doing such is questionable, and the
benefit to human health and the
environment is unclear. The Agency is
investigating this question, and seeks
comments on this issue.
The third issue is whether significant
portions should be addressed under
today's proposed rule. EPA recognizes
that there are very few units with
existing portions that would qualify as
significant portions. Also, evaluating
whether a portion is significant may
need to be accomplished OR a site-
specific basis. The Agency is requesting
comments on whether to regulate
significant portions under today's
proposal or, alternatively, under the
authority of Section 3005(c)(3) of RCRA.
3. New Units, Replacement Units, and
Lateral Expansions of Units at Facilities
Permitted Before November 8,1984
a Background. As noted previously,
under the authority of Section 3004(o)(l)
of RCRA, EPA has imposed minimum
technological requirements for double
liners and leachate collection and
removal systems on new landfills and
surface impoundments, and
replacements and lateral expansions of
landfills and surface impoundments at
facilities permitted after November 8,
1984. Also, under 3004(a) authority, EPA
is proposing to extend these
requirements to new waste piles and
lateral expansions and replacements of
existing waste piles. Under the current
regulations, new or replacement
landfills, surface impoundments, or
waste piles at facilities that were
permitted before November 8,1984, are
not subject to the minimum technology
double liner system standards. Today's
proposed rule also extends EPA's
minimum technology double liner
system standards to new landfills,
surface impoundments, and waste piles,
and replacement units and lateral
expansions of surface impoundments
(Section 284.221(c)), waste piles (Section
264.251(c)), and landfills (Section
264.301{c) j at facilities permitted before
November 8,1984. This requirement is
proposed to go into effect 6 months, after
promulgation of today's proposed rule.
b. Proposed rule—fl} Double liner
system requirement. The Agency is
proposing mat new landfills, surface
impoundments and waste piles, and
replacements and lateral expansions of
existing landfills, surface
impoundments, and waste piles at
facilities that were permitted before
November 8.1984, meet the double liner
and. LCRS requirements currently
proposed for landfills, surface
impoundments, and waste piles. This
proposal is to be effective for these units
8 months after promulgation of this rule.
The primary purpose of proposing that
the minimum technology requirements
be applied to new units, replacement
units, and lateral expansions at facilities
permitted before November 8,1984, is to
assure that these units provide
protection of human health and the
environment. This proposal will result in
minimizing die number of units in which
waste can be placed that do not protect
human health and the environment. EPA
believes the opportunity for constructing
units which meet these requirements at
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20255
facilities permitted prior to November 8,
1984 is the same as for units at facilities
permitted after November 8,1984.
On March 28,1988 (51 FR 10722) EPA
proposed to amend 40 CFR 270.41(a){3)
to give the Agency authority to modify a
permit. This amendment will enable
EPA to require double liners and
leachate collection and removal systems
for units permitted before November 8,
1984.
Only eight facilities potentially will be
affected by this proposed extension of
the double liner standard. The Agency
believes that all these cases will involve
lateral expansions or replacements but
not new units.
(2) Exemption for certain replacement
units. As discussed earlier in this
preamble, the Agency is proposing
today to require minimum technology
double liner and leachate collection
systems for certain landfills, surface
impoundments, and waste piles at
facilities that were permitted before
November 8,1984. However, the Agency
also is proposing that certain
replacement units at surface
impoundments, landfills, and waste
piles be exempted from the proposed
double liner and leachate collection and
removal system requirements, as well as
the leak detection system requirements
proposed today. EPA can exempt these
units from the leak detection
requirements because they are not
required by the statute to have leak
detection.
As stated in the Draft Minimum
Technology Guidance Document of May
24,1985 (EPA/530-SW-85-012), a unit
qualifies as a replacement unit when (a)
the unit is taken out of service (the
receipt of waste is. stopped or the
normal input of waste is significantly
reduced), (b) all or substantially all of
the waste is removed, and (c) the unit is
reused. However, a unit is not
considered a replacement unit if the
waste is removed from the unit, treated,
and only the treated waste is placed
back into the same unit as part of
closure or post-closure care activities of
the facility.
The Agency is proposing to exempt
from the proposed double liner system
and leak detection system requirements
those replacements of landfills, surface
impoundments, and waste piles that
meet all of the following conditions:
(1) The existing unit received a final
permit before November 8,1984;
(2) The existing unit was constructed
in compliance with the single liner
requirements (and leachate collection
and removal system requirements for
landfills and waste piles) or
requirements for equivalent protection
(the variance) contained in Part 264. and
the liner or leachate collection and
removal system was not replaced; and
(3) There is no reason to believe that
the liner or leachate collection system is
not functioning as designed.
EPA is proposing to exempt units that
meet the above criteria from the double
liner system and leak detection system
requirements, because the owner or
operator of these units made a good
faith effort to satisfy the liner system
requirements that were in effect at the
time the facility was permitted (and the
liner or leachate. collection system is
still functioning as designed). EPA also
considered that in order to double line
these units, in many cases the owner or
operator would be required to replace
the whole unit. Retrofitting the unit by
placing an additional liner on top of the
existing liner would not be feasible for
three reasons: (a) Existing single liners
would not meet bottom liner
requirements for a double liner system;
(b) reduced capacity may not meet unit
owner or operator needs; and, (c)
retrofitting a new design may not be
compatible with the previously designed
system and would not meet new
technology-based standards for liners.
(3) Variances. Owners or operators of
new units, replacement units, and lateral
expansions of units at facilities
permitted before November 8,1984, may
use the same variances as previously
described in Section VI.C.l.(b)(5) of this
preamble.
C. Construction Quality Assurance
(CQA) Program
1. Background
Under the authority of Section 3004(a)
of RCRA, EPA is today proposing CQA
requirements. EPA believes these
requirements are necessary to protect
human health and the environment by
preventing leachate from migrating out
of the unit and contaminating ground
water and surface water. CQA is
needed to ensure that the unit is
constructed to exceed design criteria,
plans, and specifications necessary to
prevent migration of leachate out of the
unit.
In 40 CFR Parts 264 and 265, the
overall goal of the design and operating
standards for landfills, surface
impoundments, waste piles, and land
treatment units is to minimize leachate
formation and its migration into the
subsurface soil, ground water, and
surface water. To meet this goal, owners
or operators must install liners; leachate
detection, collection, and removal
systems; dikes; and final covers.
In 1983, EPA conducted a study
assessing existing technology for liner
installation at hazardous waste land
disposal facilities (see Liner/Leak
Detection Background Document). The
data base used in the study comprised
information from the literature
supplemented by data collected through
40 interviews with technical experts in
industry. State regulatory agencies,
trade and professional associations,
research organizations, and waste
management companies. This study's
conclusions were: (1) Construction-
related problems during liner system
installation constituted one of the major
causes of liner system failure and (2) a
rigorous construction quality assurance
program could have identified and
corrected many of the problems that
contributed to such failure. The study
also concluded that construction
techniques that were available at that
time could be used to install flexible
membrane liner (FML) and clay liner
systems that meet the Agency's
performance standards for liner
systems. However, the study noted that
a comprehensive monitoring and audit
program during construction would be
needed to attain the Agency's
performance standards for liner
systems.
In 1985, EPA conducted another study
to supplement existing information on
liner performance (see Liner/Leak
Detection Background Document). This
study was designed to evaluate the
factors that contributed to successes
and failures at 27 landfills and surface
impoundments selected for case studies.
The results of this study showed that
there were two main elements related to
successful liner installation. The first
element was a proper philosophical and
conceptual approach applied to all
stages of liner system construction and
use, including design, material selection,
contractor selection, liner system
installation, facility operation, and
closure. The second element was the
extensive use of formal quality
assurance programs to ensure that the
components of the unit were constructed
properly in all facets and stages of a
unit's construction. The report stated
that a quality assurance program
resulted in a better constructed lining
system.
As a result of these studies, EPA
believes that one of the principal factors
in ensuring that the design and
operating standards of Parts 284 and 265
are met is a program that ensures that
all the components of the waste
management unit are constructed and
installed properly. Therefore, EPA is
proposing today a construction quality
assurance program for waste
management facilities.
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
2. Proposed Rule
a. The Construction Quality
Assurance (CQA) Program. The CQA
program proposed today (Section 264.19
for permitted units and Section 265.19
for interim status units) is a program
that uses scientific and engineering
principles and practices to ensure.
within a reasonable degree of certainty,
that a constructed hazardous waste
landfill, surface impoundment, waste
pile, or land treatment unit meets or
exceeds the design criteria, plans, and
specifications. The CQA program must
begin during the facility's design and
continue through the completion of the
facility's construction. The CQA
program for landfills, surface
impoundments, and waste piles ensures
that the following components are
properly designed, constructed, and
documented:
(1) Foundations,
(2) Compacted low-permeability soil
liners,
(3) Flexible membrane liners (FMLsT,
(4) Dikes,
(5) Leachate detection, collection, and
removal systems, and
(6) Final covers.
For land treatment units, the CQA
program proposed today addresses final
covers only.
A CQA program will be required for
all units and significant portions of
units, both permitted and interim status,
on which construction begins 12 months
after promulgation of this rule. Under
today's proposed rule, an owner or
operator has begun construction on a
unit or portion of a unit if the following
conditions are met:
(1) The owner or operator has
obtained the Federal, State, and local
approvals or permits necessary to begin
physical construction.
(2) A continuous on-site, physical
construction program has begun, or the
owner or operator has entered into
contractual obligations that cannot be
cancelled or modified without
substantial loss for physical
construction of the faculty, to be
completed within a reasonable time.
Today's-proposed rule-also applies to
interim status, good-faith compliance
provisions under Section 265.310(eJ; that
is, to comply with- the good-faith:
provisions, interim status units will now
also be required to implement a CQA
program (Section 265.19).
A properly executed CQA program
consists of tiie development and1
approval of a CQA plan, implementation
of the- approved CQA plan, and the
submission ofa- CQA report signed1 and
sealed by a registered professional
engineer or the equivalent.
Today's proposed CQA program is
essentially comprised of two parts:
performance standards and CQA
guidance documents. The first part
specifies using performance-type
standards for the six major components
of land disposal facilities listed above.
The Agency is supplementing the
performance standards with guidance
documents because EPA believes that
certain parts of the overall construction
quality assurance program (e.g.,
detailed, site-specific, construction
monitoring and testing protocol) are not
appropriate for coverage by regulation
and that guidance is a more effective
mechanism. Consider, for example, the
specific test methodologies and the
number of tests that should be
conducted during a given installation.
EPA's position is that these will vary
significantly for different types of units,
materials, and locations. Also, the
knowledge and technology in many
areas is still being developed, and
detailed regulations- requiring a specific
test or methodology may limit the use of
unproved tests or methods. Therefore,
specific tests and methods for
monitoring' activities are not included in
today's proposed rule, although the rule
does require the owner or opera-tor to
provide a description of the type and
number of tests- to be used. This EPA
guidance document is- intended' to
provide detailed information on the site-
specific aspects of the CQA program
and examples of the types- of
information that will be necessary for
the owner or operator to document and
submit. EPA does not intend that the
approaches described in the guidance
document should be the only
approaches for meeting construction.
quality assurance requirement*, kx fact,
improved technologies and approaches
are. welcome. The guidance document
simply indicates approaches- that may
be used said also indicates tba level o£
control EPA considers acceptable.
On November 21r 1985, tha Agency
noticed for pirfitln rnmmont jn, ^Jm.
Federal Register [SO FR 43129) the
availability of a diraft guidance
document entitled "Construction- Quality
Assurance for Hazardous. Waste Land
Disposal Faculties," EPA/530-SW-021.
Construction quality, assurance
activities are also outlined in the draft
"Minimum Technology Guidance on.
Double Liner Systems for LanrffilTn nn The-RA
m&v ryvfew tfoffr
.
site inspectfon.o£ the facility. The CQA.
program mill EB tfiy fihiof r*1"ttfl8 far BB.
interim, aiat^ facility owner ot opecator,
to demonstrate dial EPA regulations
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Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules
20257
•a!
were properly implemented. Also, the
owner ur operator can use the CQA
documentation to demonstrate that the
completed facility meets or exceeds the
design criteria, plans, and specifications.
flj Elements of a CQA plan. The CQA
plan must address those activities that
pertain to each of the following areas in
sufficient detail to show, that, if the
CQA plan is properly implemented, the
constructed facility will meet or exceed
the design plans and specifications
(Sections 284.20 and 265.20).
(a) Responsibility and authority. As
proposed, the plan must include a
detailed description of the responsibility
and authority of organizations and key
personnel positions involved in
preparing and implementing the
construction quality assurance plan.
(b) Construction quality assurance
personnel qualifications. Under today's
proposal, the CQA plan must describe
the qualifications of the CQA officer and
supporting personnel. The position
descriptions must demonstrate that the
personnel possess the training and
experience necessary to fulfill their
identified responsibilities.
(c) Monitoring activities. The CQA
plan should detail the observations and
tests that will be monitored to ensure
the quality of the installation of the
components.
(d) Sampling requirements. A
description of sampling and testing
activities must be provided in sufficient
detail, both in concept and specifics, to
project the quality of materials that
were installed during construction. The
description of sampling activities should
include:
(i) The types of sampling activities;
(ii) The types of samples;
(iii) The number and locations of
samples;
(iv) The frequency of testing;
(v) Data evaluation procedures;
(vi) Acceptance and rejection criteria;
(vii) Plans for implementing any
corrective measures that sampling
results warrant; and
(viii) Procedures for handling testing
errors.
(e) Documentation. The CQA plan
must describe in detail procedures for
documenting construction quality
assurance activities. Documentation
must include such items as daily
summary reports, monitoring data
sheets, change orders, meeting
memoranda, photographs, problem
identification and reports on corrective
measures, block evaluation reports for
large projects (phased construction
quality assurance reports on
construction activities for portions of a
large unit), design acceptance reports
(for errors, inconsistencies, and other
problems), and final documentation,
- including record drawings. Provisions
for the final storage of all records also
must be discussed in the construction
quality assurance plan.
(2) Components covered by the CQA
plan. Under today's rule, a CQA plan
must cover the following components of
land disposal units: foundations;
compacted low-permeability soil liners;
flexible membrane liners; dikes;
leachate detection, collection and
removal systems; and final covers. The
specific components that must be
addressed in any given CQA plan will
vary depending on the type of unit. The
following is a description of some key
construction factors that may affect the
engineered components at land disposal
units. The CQA plan is intended to
identify these factors so that problems
are rectified during construction in a
manner consistent with the design
intent.
(a) Foundations (Sections 264.20(b)(l)
and 285.20(b)(i)). Under today's
proposal, the CQA plan must confirm
that foundations are constructed with
structurally stable subgrades for die
facility components and waste above.
Furthermore, the foundation also must
provide satisfactory contact with the
overlying liner or other system
components.
Important steps in soil subgrade
preparation for foundation construction
at landfills, surface impoundments, and
waste piles include excavation,
placement, and compaction of soil lifts;
embankment and slope construction;
surface finishing; and soil sterilization.
These factors are important to ensure
that the requirements under Sections
264.20(b)(l) and 265.20(b)(l) are met.
EPA believes that the criteria in
Sections 264.20(b)(l) and 265.20(b)(l) are
necessary to ensure proper foundation
preparation. The following is a list of
some of the key factors that need to be
addressed in the CQA plan:
Compaction. If a recompacted soil
subgrade is not compacted adequately,
it may not have the strength and
stability needed to support a liner, and,
as a result, it may settle unevenly under
the weight of equipment or waste. This
differential settlement may create areas
where the liner is unsupported or
otherwise stressed. An unsupported
compacted soil liner may settle
differentially, creating channels or
cracks in the liner where permeability
will be higher. An unsupported or
stressed flexible membrane liner (FML)
may fail under tension. To achieve
proper subgrade compaction,
specifications must be adequate, and
followed strictly. If the design specifies
sabgrade reinforcement, then such
reinforcement is also required in the
construction quality assurance plan.
Compaction relates to stability and
strength of the constructed foundation.
Saturated subgrade. A subgrade may
fail if it becomes wet or disturbed before
or during liner placement. This occurred
during construction of the Mt. Elbert
reservoir (Morrison, et al., 1981). At Mt.
Elbert. liner placement and seaming
stopped because of rain. When
placement recommenced, some soft,
moist, subgrade areas were
inadvertently overlooked. After backfill
placement, it was discovered that the
liner failed in tension. These areas had
to be excavated and the liner patched.
This experience demonstrates the
necessity for a firmly compacted
subgrade to ensure strength and
stability of the foundation and a
monitoring program to confirm that
design conditions are met.
Slope construction. The steepness of
the side and bottom slopes that the
design specifies must be adhered to
during installation to prevent problems
during the remainder of the installation
or during faculty operation. Two
difficulties with over-steepened side
slopes that have been reported are: (1)
equipment problems leading to liner
damage and (2) sloughing of the earthen
side slope material. If the design
specifies slope reinforcement (synthetic
or otherwise), then such reinforcement
also must be required in the
construction quality assurance plan.
The bottom slope must be designed
and constructed to allow for adequate
gravity flow of liquids after any
projected settlement has occurred.
Another concern for the slope of the
bottom is that a slope which is too flat
may allow gas or liquid to accumulate
under the liner. As a result, a flexible
membrane liner can be raised, stretched,
and eventually ruptured because of the
pressure against the liner. A clay liner
also can be damaged by that pressure.
Some designs specify pressure relief
systems to preclude such problems. If
pressure relief systems are specified,
then they also must be required by the
construction quality assurance plan.
Surface texture. Flexible membrane
liners can be damaged if the subgrade
surface is not smooth. For example, a
flexible membrane liner may be
punctured by small rocks. Such a
puncture of a flexible membrane liner
because of a rough subgrade may occur
at the time of liner placement or after
waste has been placed in the unit
Failure to remove roots and
vegetation of all types and to sterilize
the subsoil also can cause liner failures.
Existing vegetation can grow through
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20258 Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
liners, and some types-of grasses can
germinate after liner placement and
grow through the liner. This can provide
channels for leachate movement. In
addition, the decay of organic matter
produces gas that can accumulate and
exert pressure on the liner, as described
above. Because surface texture
problems can. cause liner breaches, the
CQA plan, must address these types of
problems.
(b) Dikes (Sections 264.20(b)(2) and
265.20(b)(2)j. The CQA plan activities
for dikes are necessary so that a
completed dike meets or exceeds design
criteria, plans, and specifications. These
activities, may include examining the
prepared dike foundation, monitoring
incoming materials, monitoring and
testing flit placement and compaction,
constructing a drainage system, and
implementing erosion control measures.
These factors are important to ensure
the requirements under |§ 26$.20tb](2J
and 265.20{b)(2) are met EPA believes
that the criteria in §§ 264.20{b)(2) and
285.20(bX2) are necessary to ensure that
dikes are properly constructed to ensure
structural strength and stable support
for the overlying facility, thereby
ensuring protection of human health and
the environment
A dike in a hazardous- waste unit
functions as a hydraulic barrier as well
as a retaining structure-, resisting the
lateral forces of the wastes, liners, and
leachate collection systems. A dike is
also the above-ground extension of the
foundation, providing support to the
facility, components above. In addition,
dikes can be used to separate cells for
different wastes within a large landfill
or surface impoundment. Dikes,
therefore, must be designed,
constructed, and maintained with
sufficient structural stability to prevent
failure.
Materials-to be used for the dike must
be monitored to confirm that they are
the same as-the design specifies and
that they are uniform, so that no
unsuitable-materials-are included in the
dike. A test fill must be constructed to
verify that the specified soif density,
moisture content, compactive effort and
strength relationships hold for Meld
conditions and to determine the
suitability of the proposed construction
procedure.
Dike construction generally involves
standard earthwork construction
practices. Adequate CQA during-dike
construction wnTftTentify problem*
resulting'from using- madaquete
construction-methodologies or materials
that conM result in> dike-failure from-
slope testability, settlement, seepage
problems; or erosion.
(c) Low-Permeability Soil Liners
(Sections 264.20(b)(3) and 265.20(b)(3)).
The CQA program for low-permeability
soil liners must confirm that the liners
meet or exceed the design intent. The
purpose of a compacted low-
permeability soil liner depends on the
overall liner system design. For soil
liners used as the lower component of a
composite liner, the soil component
serves as a protective bedding material
for the upper component of the FML and
minimizes the leakage rate through any
breaches in the upper component. Aa
objective for ail low-permeability soil
liners is to serve as long-term,.
structurally stable bases foe all material
above them.
Before construction, adequate studies
should have confirmed that the low-
permeability soil liner design meets or
exceeds regulatory requirements. These
studies should include an evaluation-of
the proposed material source area to
confirm the existence of an adequate
quantity of suitable material, particle
size distribution. Atterburg limits*
compaction, permeability, Iiner4eachate
compatibility tests, and appropriate
consolidation, and strength tests of
fabricated samples-o£ the proposed soil
liner.
EPA has published a technical
resource document "Design,
Construction, and Evaluation of Clay
Liners for Hazardous Waste Facilities"
(EPA/530-&W-a6-<»7, March 1986) that
provides detailed information OB
constructing a compacted soil liner.
The following, is a summary of the key
factors that need to.be addressed for the
construction of compacted lovr-
permeability soil liners a* landfills,
surface impoundment* and waste piles.
The construction process- primarily
consists of material excavating,
stockpiling and handling, moisture
conditioning, and placing and
compacting soil lifts. The major
problems hi construction relate to flj
proper material stockpiling and
handling; (2J using proper compaction
equipment; {3) placing of lifts in the
proper thickness-; (4) promoting bonding
between lifts; (5f obtaining and
maintaining proper moisture content and
distribution; and (6) attaining the
specified relative compaction. These
factors are important to-ensure the
requirements-under 55 264.20(b)(3) and
265.2Q(b3f3} are met EPA believes that
the criteria hi- H 264.26(bjf3-)' and
26&28(b)(3} are necessary to ensure that
low-permeabifiry compacted son* Inters
are properly constructed to ensure
against imperfections, improper
materials and improper ywuieabiBty.
These criteria will ensure the unit is
built as designed and is protective of
human health and the environment
Material stockpiling and handling.
The main concerns regarding the soil „
stockpiling relate to preventing the soil
from being contaminated or becoming
too wet or too dry. Contaminants that
might become mixed with the soil and
increase permeability, decrease
strength, or cause other deficiencies
include sand, silt vegetation, and debris
from preparing the site. Higher
permeability may allow waste o*
leachate to leave the unit or may allow
ground water to enter the rait To
prevent contamination, excavated
materials must be examined to remove
undesirable contaminant* before the soil
is placed ia the stockpile area. Whether
referred to as blemishes, macrofeatures,
01 structural nonusiformitiea. material
imperfections may increase the overall
permeability by several orders of
magnitude.
Methods to identify and remove these
contaminants should be included in the
CQA program both to prevent and to
detect these imperfection*. Details ef me
information that should be gathered
before, during, and after constructing' of
a compacted soil (which shouM serve to
reduce the number of tfcese
imperfections) are given in the guidance
document entitled "Construction Quality
Assurance for Hazardous Waste Land
Disposal Facilities," EPA/53O-SW-88-
031. '
Permeability testing. EPA requires, as
part of the CQA program, a test fffl to be
constructed using the same borrow soil,
compaction equipment and construction
procedures as proposed in the fuB-scale
unit. According'to Sections
284.20(3)fifiKA) and 26&.28f3HHfJfA}, a
test fill is required because of concern.
that laboratory permeability tests wiM
overestimate die actual field
permeability. A field hydraulic
conductivity feat of the compacted soil
in the test fitt is necessary to confirm
that the materials and procedures-used
in the field win" result in a compacted
soil liner with, a hydraulic conductivity
of 1 x 10~*cm/sec or lower. Field testing
is not intended to preclude using
laboratory testing ia die design or
construction phases or as a means of
evaluating liner-Ieachate compatibility.
The design phase and the construction
quality assurance program both, may
include a mixture of Meld and laboratory
hydrauKc conductivity tests.
As appropriate methoda are
developed and verified, EPA intend* to
require hydraulic conductivity tests to
be conducted on the fnD-scalt. facility. Ia
the meantime, fieHnydcanfic,
conductivity tests can be performed in
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, No. 103 / Friday, May 29. 1987 / Proposed Rules
Federal Register / Vol. 52
^
the test fill without causing delays
during the full-scale facility
construction. The field test used in the
test fill should be performed long enough
to verify that the hydraulic conductivity
of the compacted soil liner is 1 x 10~'
cm/sec or less.
In addition to being used as a site for
the field hydraulic conductivity test, the
test fill also will verify other elements of
the soil liner design and construction.
The test fill construction will allow the
construction quality assurance monitors
to verify that equipment and
construction procedures for breaking up
clods (Sections 264.20(3)(iv)(D) and
265.20(3)(iv)(D)). moisture conditioning
(Sections 284.20(3)(iv](F) and
265.20(3)(iv)(F)J. and compacting the soil
are adequate to meet the specified
density, moisture content, and
permeability criteria. In addition,
construction monitoring activities,
including measuring of lift thickness
(Sections 264.20{b)(3){iv)(C)) and
265.20{b)(3}(iv)(C) and compaction
equipment coverages (Sections
264.20{b)(3)(iv)(I) and 26S.20(b){3)(iv)(I)J,
can be correlated with in-place density
and moisture content tests and with the
field hydraulic conductivity.
(d) Flexible Membrane Liners (FMLJ
(Sections 264.20(b)(4) and 265.20(b)(4)}.
The CQA plan for the FML must address
the following points: (1} Conformance of
testing the liner material to confirm that
materials used in the manufacture of the
liner are as specified in the design; (2)
monitoring the delivery and unloading of
the liner material to confirm that it is the
material specified in the design and that
it is not damaged, (3) observing and
testing the subgrade to confirm that the
subgrade has been prepared and
compacted properly; (4) monitoring the
liner deployment to observe any damage
to the subgrade or to the liner during
deployment: (5) monitoring and testing
seaming operations; (6) monitoring
installation procedures so that improper
techniques or workmanship that can
result in inadequate seams or liner
damage are identified and corrected; (7)
checking for identifying any tears,
punctures, or other breaches in the liner
so that they can be properly patched
and repaired; and (8) continuous
monitoring while placing cover soil or
other materials over the liner to observe
any damage to the liner, in which case it
can be repaired properly. These factors
are important to ensure the
requirements under Sections 264.20(b){4}
and 28&20(bH4) are met EPA believes
that the criteria in Sections 284.20(b)(4)
and 265.20(b)(4) are necessary to ensure
that the flexible membrane liner is
constructed to ensure tight seams, use of
proper materials as approved, and
proper manufacture of the FML. These
factors will ensure the unit is built as
designed and is protective of human
health and the environment
The following is a summary of key
factors that must be considered when
constructing a FML. The most significant
consideration relates to installation
procedures; however, many other areas
must be monitored so that the installed
liner meets the CQA design
specifications.
Storing and handling. Properly storing
and handling of liner materials at the
site is necessary to prevent their
degradation as a result of exposure to
the elements or physical damage, so that
the properties of the materials that are
installed are the same as those the
design specifies. The main concerns in
storing and handling are protecting the
material from wind, sunlight hail,
vandalism, and equipment damage.
Some FML materials can be damaged
when the material is folded and
unfolded repeatedly. Other FML
materials should not be folded. Weather
can affect the performance of the
membrane in several ways. Relatively
gentle breezes (as little as 10 miles per
hour) can easily lift and tear liner
sheeting. Hail can impact and puncture
some materials. The ultraviolet
component of sunlight damages some
FML materials over time. Another effect
of exposure to sunlight with some FML
materials is blocking, which occurs
when the liner material sticks together
as a result of the combination of heat
from the sun and pressure from the
weight of the liner material. When the
material is unfolded or unrolled.
delaminating or ripping of the blocked
material can occur. The material storage
and handling damage can be detected
easily by visual inspection and repaired
or replaced with littie technical
difficulty. For the above reasons,
inspection of the liner material after it is
received at the facility and before
installation to confirm that it is the
material specified in the design and is
not damaged, is required under Sections
284.20(b)(4)(iv)(B) and 285.20(bH4){iv)(B).
Installation. Installation can be
divided into two operations: liner
placement and seaming. Proper
placement of liner materials is essential:
to guard against damage to the liner
material during and after placement so
that subsequent seaming operations can
be performed effectively.
Another concern about liner
placement is the occurrence of
"bridging" in the liner material where
depressions or angles form in the
subgrade. Bridging exists whoa the liner
20259
extends from one side of a depression or
angle to the other, leaving a void
beneath the liner at the apex. The liner
essentially is unsupported at this spot
and could fail under stress. Bridging
occurs most often at penetrations and
where steep sidewalls meet the bottom
of a unit. To prevent bridging, installers
must keep the liner in a relaxed
condition and in contact with the
subgrade at these locations.
Seaming is perhaps the most critical
operation in flexible membrane liner
installation. Furthermore, seaming
procedures are material-specific. If
procedures are performed improperly,
serious performance problems can
result. Different types of geomembranes
may use different seaming techniques.
Problems can occur when seaming
during adverse weather and when using
improper seaming techniques or
materials. In addition, special problems
are associated with sealing liner
penetrations and with seaming new
liner material to old liner material
Therefore to ensure tight seems
(Sections 284.201(b)(4)(i) and
285.20(b)(4Xn) EPA is requiring
inspection and testing to provide
protection of human health and the
environment
Adverse weather. Weather conditions
that affect liner seam viability include
wind, moisture, and temperature. Wind-
blown sand, dust and other debris can
adhere to field joints during their
preparation. Another wind-related
problem is simply that the liner may be
blown around so that it is difficult to
hold in place during the seaming
operation, and wrinkles may appear in
the seams as a result
Excessive moisture can cause
problems in several ways. Moisture in
the seam area will vaporize during
seaming and cause vapor bubbles which
weaken the seam. Seaming during high
relative humidity or during precipitation
will cause poor seam adhesion unless
the areas are kept dry. In addition.
moisture under die seaming area,
particularly when the temperature is
below the dew point may condense in
the seam interface and prevent proper
adhesion. To eliminate these problems,
seaming should not occur daring
precipitation or high moisture conditions
and particular care should be taken
during conditions of high relative
humidity to keep the seam area dry. If a
good seam .quality assurance program is
conducted, faulty seams can be
identified and repaired.
Temperature extremes or changes can
interfere-with the seaming process by '
changing dJmeBsions of the Haer
material or by preventing the seaming
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
equipment from operating properly.
Thermal expansion and contraction of
some liner materials may stress the
seams and cause them to fail. Either
high or low temperatures may interfere
with the ability of a method to produce a
good seam.
Improper materials and techniques. A
common problem with adhesive seaming
is using improper materials or the wrong
adhesives; that is, materials that can
damage the liner or cause improper
bonding. If an adequate quality
assurance program is developed and
followed, improper materials can be
identified and replaced.
Improper seaming techniques may
include applying too much or too little
adhesive, applying adhesive unevenly,
providing insufficient support beneath
the seaming area, or applying pressure
to the seam incorrectly. Applying an
insufficient amount of adhesive will
prevent complete bonding, while
applying too liberal an amount of
adhesive or applying it unevenly can
cause blisters in the seam. If such
problems occur, good quality assurance
should identify and correct them.
Allowing insufficient time for the
seaming system to take effect before
stresses are applied to the seam can be
a problem with the installation of any
field seaming system.
A problem common to both solvent
and extrusion welding systems is that
breaks in the solvent or extrudate feed
will cause gaps in the seam. The
solutions to these problems are (1) to
follow recommended seaming practices,
(2} to use experienced personnel, and (3)
to conduct a good quality assurance
program to identify problem areas for
repair. Because of the reasons above
EPA is requiring observation of
placement of the FML to ensure that
design requirements are met and
observation of any liner damage that
may occur as a result of adverse
weather conditions, inadequate
temporary anchoring, or rough handling,
under Sections 284.20(bH4)(iv) (F) and
(G) and 285.20{b)(4)(iv) (F) and (G).
Sealing around penetrations is critical
to the integrity of any lined facility.
because improperly devised or sealed
penetrations may leak. Problems occur
when the liner and appurtenance are
incompatible regarding seaming; when
the penetration stresses the liner in
some way. and when the subgrade
adjacent to the structure is weak or
relatively compressible. .
Materials and equipment. Procedure*
for monitoring and testing materials and
equipment as they arrive at the site
should confirm that materials and .
equipment used to construct the liner er,
cover are the correct ones and that they
are not defective. Using improper or
defective materials could result in such
problems as ineffective seaming and
leaks in the liner itself. Using the wrong
equipment also could cause incomplete
seaming; it could create such problems
as mechanical damage to the liner
during fill placement or inadequate
subgrade performance. An effective
monitoring program can detect these
problems (Sections 284.20(b)(4)(iv)(A)
and 265.20(b)(4)(iv)(A)).
Testing of field seams. Sections
284.20(b)(4)(iv)(6) and 265.20(b){4)(iv)(6).
require observation and testing of seams
to ensure proper seaming and
conformance to the seam strength
specified in the design. Field seam
testing ensures that seams have been
constructed to be continuous and of the
specified strength. Because field seam
integrity (strength) generally determines
the success of the entire job, it is
important for the best available field
seam monitoring, testing protocol, and
equipment to be used during
construction. This will reduce the risk
that the liner will fail to perform its
intended function.
There are different types of tests to
measure the various seam properties
and seaming methods. These tests fall
into two general categories:
nondestructive (qualitative) and
destructive (quantitative). A good
quality control program will include
tests of both types. One hundred percent
of field and factory seams should be
tested by nondestructive testing
techniques to verify their continuity.
Some seams at or adjacent to structures
and penetrations cannot be tested.
These locations should be limited in
number and the seaming of those
locations should be continuously
observed by construction quality
assurance monitors. Periodic samples
should be removed from both factory
and field seams and tested for seam
integrity by destructive tests (shear and
peel tension tests). Areas in field seams
where samples are removed for
destructive tests must be patched with a
new piece of the same liner material and
then nondestnictively tested.
(e) Leachate Detection, Collection,
and Removal Systems (Sections
264.20(b}(5)and285.20(b)(S}).'TheCQA
program for leachate collection and
removal systems (LCRS) must provide
reliance that the installed system meets
or exceeds the design specifications.
The functions of a LCRS above the top '
liner in a double-lined landfill or waste
pile unit are to minimize leachate head
on the top liner and to collect and • • ••
remove liquids from die unit, during the
active life and poet-dome care period.
The purpose of a LCRS between the two
liners of a double-lined waste unit is to
rapidly collect and remove liquids
entering the system, also through the
post-closure care period. By providing
for rapid leachate removal, the LCRS
between the liners will greatly minimize
the hydraulic head on the secondary
liner and, thereby, minimize or eliminate
leachate migration out of the unit. If the
LCRS between the liners is also used to
detect leaks in the top liner, the CQA
program must ensure that the system is
installed as designed for that purpose by
meeting the sensitivity and detection
time performance standards presented
in this proposal.
Observing and testing the
subcomponent materials of the LCRSs
as they are delivered to the site and
installed are necessary to confirm and
document that these materials conform
to the design criteria, plans, and
specifications. This observation and
testing applies to the granular materials,
geosynthetic materials, piping and
sumps, and any other materials that
make up a LCRS. The factors are
important to ensure that the criteria
under Sections 264.20(b)(5) and
285.20(b)(5) are met .
EPA believes these requirements are
necessary to protect human health and
the environment ...
Below are summaries of key factors
that need to be addressed while
constructing a LCRS. The major
problems related to installation are (1)
damage to the collection system during
installation resulting from excessive
stress and (2) leachate flow obstruction
through the system. . -
Leachate collection pipes. Leachate
collection pipes installed in trenches at
the base of a landfill or waste pile and
between the liners in a landfill, surface
impoundment, orwaste pile are
subjected to loads from construction
equipment during installation and
operation, and the waste itself. In a
well-designed trench, only a small .
fraction of the load of a wheel or
tracked vehicle applied at the top of the
trench should be transmitted through the
trench backfill to the pipe. However, the
percentage of the load transmitted -
increases rapidly as the vertical
distance between the loaded surface
and the top of die pipe decreases. In
addition, moving loads cause impact
loading, which Is generally considered
to have a one and one half to two times
the effect of stationary loading; Thus,
backfill procedures and equipment
traffto over pipe trenches mufet be
, to pipes,
Z^ac/
consideration whtn installing
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Federal Register / Vol. 52. No. 103 / Friday, May 29. 1987 / Proposed Rules 20261
collection system is to provide
confidence that the flow of leachate
through the system is not impaired by
construction activities or occurrences.
Collection systems generally are
designed so that leachate generated
within the unit drains first through a soil
or geosynthetic filter before entering the
LCRS drainage layer. The purpose of
this filter is to remove any fine particles
that otherwise would clog the LCRS
drainage layer and prevent its
functioning. The filter, therefore, must be
designed and constructed carefully to
perform under the expected conditions.
The leachate then flows through the
LCRS drainage layer, which is
comprised of permeable soils or
geosynthetic drainage materials placed
over the liner. If this layer does not have
sufficient transmissivity (thickness
times hydraulic conductivity) to
accommodate the maximum leachate
flow, the flow will be held up, and
hydraulic head will build up on the liner.
Achieving the designed thickness can be
made more difficult by improper
installation procedures, such as placing
a gianular drainage layer during high
wind or intense rain, which may
displace the soil so that it is no longer of
uniform thickness. Another weather-
related problem is drainage material
contamination with fine soil particles,
which decreases the permeability. This
can occur as a result of soil particle
erosion into granular or geosynthetic
drainage layers from runoff from facility
side slopes, mud, or windblown dust.
These types of problems can be
minimized by monitoring and testing
activities that check the critical factors
in the leachate collection system.
Installation procedures must be
monitored to confirm that the drainage
soils meet design specifications for size
distribution of particles. In particular,
excessively fine soils must not be
allowed, because they will decrease the
hydraulic conductivity of the layer and
will clog collection pipes. Similarly,
geosynthetic materials must be
conformance tested to ensure that they
meet design specifications, and they
also must be covered to keep them
clean.
Geosynthetic components.
Geosynthetic components (geotextiles,
geonets, and geocomposites) can be
damaged during installation if proper
placement and seaming techniques are
not used. Some geotextiles will degrade
very quickly when exposed to the sun's
ultraviolet radiation. Thus, these
materials must be stored with protective
covering and, once installed, must be
covered.
Protective soil. Protective soil
includes any cover material placed over
a lining system to protect it from
mechanical, weather, or other
environmental damage, such as wave
action, exposure to the elements,
vehicular or animal traffic, suction
pressures exerted by an aerator, or high-
temperature wastes in a surface
impoundment. Protective soil may be an
integral part of the leachate collection
system in a landfill or waste pile.
Because protective soil has so many
important roles in liner systems,
improperly placed soil can adversely
affect the liner system performance.
Improperly placed protective soil may
not provide the desired protection for
the liner system, or it may itself fail and
cause the liner system to fail.
(f) Final Cover Systems (Sections
264.20(b)(6) and 265.20(b)(6)). The
successful construction of the final
cover, like the other components, relies
on following recommended practices for
construction, employing experienced
personnel and conducting a CQA
program. The CQA plan for final covers
at all land disposal units must provide
assurance that (1) all layers of the final
cover are monitored for uniformity,
imperfections, and damage; (2) the
materials for each layer are as specified
in the design specifications; and (3) each
layer is installed or constructed to meet
the design requirements.
The following is a summary of the key
factors that must be addressed to ensure
that the requirements are met
Subsidence. Subsidence under a final
cover may cause problems similar to
those experienced when the subgrade
under a liner subsides. A flexible
membrane liner may fail in tension if the
waste that comprises its subgrade
subsides differentially. If the final cover
uses a compacted clay layer, the clay
layer may develop cracks as a result of
differential subsidence that allows
rainwater to infiltrate. In addition,
differential subsidence may result in
rainwater ponding above the final cover.
The ponded rainwater may have an
increased chance of penetrating the
cover even if the clay is intact because
of the increased pressure head on the
liner. If a cover of any type has failed,
ponding prevents runoff from leaving the
area and provides additional
opportunities for leachate production.
For covers, the problem of subgrade
subsidence begins with waste
placement The waste may not have
sufficient bearing strength to support the
weight of additional waste and soil
cover material placed above it In
addition, if the waste is not compacted
well and placed so that void spaces are
filled, proper compaction of the liner
bedding material will not be sufficient to
prevent subsidence. Therefore, to
minimize subsidence, waste placement
must be considered a part of final cover
subgrade preparation. Cover subsidence
resulting from improper waste
compaction may be less of a problem
today than it has been in the past.
Wastes were not compacted well or at
all in older landfills or disposal surface
impoundments when problems
associated with final cover subsidence
were not well known. Now, however,
virtually all landfills compact then-
waste. Nonetheless, differential
settlement because of waste subsidence
continues to be a serious problem that
must be anticipated in the cover system
design. Some key considerations follow:
(i) The stress-strain properties of the
cover system FML, geosynthetics and
soils;
(ii) The ability,to maintain minimum
slopes for gravity drain systems;
(iii) The slope stability of layers above
FMLs and geosynthetics;
(iv) The use of subgrade reinforcement
or stabilization methods, such as
geosynthetic reinforcement or dynamic
compaction.
Installation procedures. The
construction process for final covers at
landfills and disposal surface
impoundments involves subcomponents
similar to many of the components
previously discussed, such as
foundations, compacted low-
permeability soil liners, flexible
membrane liners, and drainage layers
(leachate collection systems). There are
few examples to substantiate the quality
of final covers that are constructed to
comply with the landfill and surface
impoundment requirements in Parts 264
or 265. However, EPA believes that most
of the installation problems for final
covers for these units should be similar
to those experienced installing liners,
dikes, and leachate collection systems.
For example, the compacted low-
permeability soil layer and FML in a
final cover is constructed much like the
low-permeabih'ty soil and FML liner.
However, the foundation for the final
cover may have a lower bearing strength
'than the soil liner foundation; this may
require using different construction
techniques to achieve the required
permeability in the field. Additionally,
the design may specify foundation
(waste) soil reinforcement and such soil
reinforcement must be carefully
monitored during installation by
construction quality assurance
personnel. As with the compacted low-
permeability soil and FML liner, it is
necessary to monitor the construction of
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20262 Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
the compacted low-permeability soil
and FML cover layer.
Installation procedures for FMLs in a
final cover include proper on-site
storage, handling and placing of the
panels to ensure proper positioning,
allowing enough slack in the material
for it to fit around angles and
penetrations, proper seaming and
anchoring procedures, and installation
only during proper weather conditions.
A more complete discussion of problems
and monitoring activities for flexible
membrane liners and other
subcomponents of the cover is contained
in Sections C£.b(2) (b) through (d).
Vegetative layers. The key factors
that need to be addressed for
constructing the vegetative layer of the
final cover at land disposal units
include: vegetative layer soil quality and
thickness, seeding uniformity and
timing, and vegetation establishment.
The vegetative layer is the only layer of
the final cover required for properly
operated land treatment units under a
permit
Vegetation establishment and
maintenance can be accomplished only
by carefully addressing the soil type and
the nutrient and pH levels to provide the
proper soil conditions for successful
seed germination and vigorous growth.
The thickness of the vegetative soil
layer also must be as specified in the
design to provide proper root
development and a sufficient moisture
reserve to sustain the vegetation during
dry periods.
The timing of the seeding is probably
the most important factor in successfully
establishing a vegetative cover. The
timing will depend on whether the plant
species selected is a cool- or warm-
season species and on local climate
condition!. The recommendations of the
local county agricultural extension agent
or seed company should be used. The
CQA plan must address seeding
procedures so that the recommendations
are followed.
For covers at Interim status land
treatment units, the closure plan may
require the cover design to provide
infiltration control. In such a case, the
CQA plan should address factors similar
to those discussed above for landfills
and disposal surface impoundments.
The monitoring activities for the
infiltration control components would
be determined on a case-by-case basis
accoiding to the cover design.
c. Construction Quality Assurance
Documentation. After completing
construction at a unit regulated through
either Part 284 or 265, the owner or
operator must prepare a CQA report
(Sections 264.20(g) and 285.20(g)), which
demonstrates that the CQA plan was
implemented as approved, and submit it
to the Regional Administrator (RA). This
report must include (1) a summary of all
of the observations, daily inspection
reports, inspection data sheets, and any
photographic or video records; (2)
problem identification and corrective
measure reports; (3) design engineer
acceptance reports (for errors,
inconsistencies, and other problems); (4)
deviations from design and material
specifications (with justifying
documentation); (5) as-built drawings;
and (6) a summary for each component
describing how the monitoring activity
results demonstrate that the constructed
unit meets the design intent and
purpose.
The CQA report must be signed by a
qualified registered professional
engineer, or the equivalent {CQA
officer), in charge of the CQA program
and must state that the report accurately
represents the activities and findings of
the CQA program and that the program
was implemented according to
requirements of the approved CQA plan
(Sections 264.20(g)(3) and 265.206(g)(3)).
EPA requests comments on whether
signatures of the facility owner or
operator, CQA officer, and design
engineer (if involved) should be included
with the documentation as confirmation
that each party understood and
accepted the areas of responsibility and
lines of authority and performed their
functions according to the CQA plan.
The CQA report is not intended to
present the CQA "plan as a guarantee of
facility construction and performance.
Rather, the primary purpose of this
documentation is to improve confidence
in'the constructed facility through
written evidence that the CQA plan was
implemented as approved (or as
modified) and that the construction
proceeded according to design criteria,
plans, and specifications.
Permitted units. For construction
activities at permitted units, the owner
or operator must submit the CQA report
to the RA for acceptance before waste is
received at the unit The RA has 30 days
to review and approve the CQA report.
If the RA does not respond within 30
days, the CQA report does not need to
be review and approved before waste is
received. When EPA reviews the CQA
report and has comments that need to
be addressed before the report can be
accepted, additional time beyond the 30
days may be required. In this case, the
RA can extend the 30-day review period
in additional 30-day increments, as
needed. If the owner or operator does
not respond satisfactorily to the
Agency's comments, additional 30-day
time periods may be necessary to
complete review and approval of the
report.
EPA takes the position that restricting
the waste receipt before the CQA report
is approved will ensure that the
implemented CQA plan will comply
with the permitting agency
requirements. In addition, the Agency
believes that the benefits to be derived
from a properly executed CQA program
will be significant
Interim status units. For new
construction activities at interim status
units, the owner or operator is to follow
the same CQA report requirements that
are described above for permitted units.
However, unlike the proposed Part 264
requirements, the proposal for Part 265
does not include a schedule for report
submission and review. For Part 265, the
owner must provide the completed
report to the RA and place a copy in the
facility files (Section 265.20{f)).
If a liner and leachate collection and
removal system has been installed in
good faith compliance with
administrative regulations and guidance
documents, the LCRS need not be
retrofitted when the permit is issued
(Section 3015(b) of RCRA). For landfills
and surface impoundments, EPA
believes that meeting the construction
quality assurance requirements in this
proposed rule pertaining to double liners
and leachate collection systems is
evidence of the owner or operator's
good-faith.
EPA is aware that the owner or
operator may not have developed all the
construction information necessary to
finalize the CQA report at the
completion of construction. This
especially may be true when the
construction schedule involves the
phased construction of a unit (Sections
264.20{a> and 265.20{a)). EPA also
recognizes that the design or materials
may be updated when long construction
periods are involved in completing a
unit's construction. This proposal allows
phasing of the CQA report for specific
segments of a unit, if approved by the
RA. As the construction activities for a
specified phase are completed, the
owner or operator must submit the CQA
report to the RA for the completed
segment of the unit
d. Managing of the Construction
Quality Assurance Program. Managing
the CQA program is an important part of
ensuring that the unit meets or exceeds
the specified design. The activities for a
CQA program can be divided into four
parts: (1) development of the CQA plan,
(2) approval of the plan by the
regulatory agency, (3) implementation of
the plan with documentation that
demonstrates proper implementation,
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I
and (4) submittal of the CQA report,
demonstrating compliance with the plan
(applicable to permitted units only). In
developing today's rule, EPA considered
which individual should be responsible
for the CQA program parts.
The Agency is proposing that the
development of the CQA plan be
conducted by the owner or operator.
The Agency proposes this because the
facility owner or operator is ultimately
responsible for the design, construction,
and operation of the hazardous waste
land disposal facility and also must
comply with the requirements of the
regulatory agency in order to obtain a
permit. EPA believes that requiring the
owner or operator to develop the CQA
plan is consistent with the
reponsibilities for facility design,
construction, and operation.
The second part, approving the CQA
plan, requires the regulatory agency to
review and approve the CQA plan for
consistency with the design
specifications and to verify that every
element of the CQA program has been
taken into account
The Agency is asking for comments
on who should be responsible for
documenting that the implementation
was properly conducted. Under today's
proposal the CQA plan would be
implemented by the owner or operator
by retaining a registered professional
engineer. The Agency is seeking
comments regarding the following:
(i) Whether the plan should be
implemented by an independent
registered professional engineer (should
it be an independent third party); and,
(ii) Whether the plan should be
implemented by EPA or by an EPA-
. controlled contractor.
The Agency is proposing that the
owner or operator use a registered
professional engineer or the equivalent
as the appropriate party responsible for
implementing the plan. This approach
would afford the greatest flexibility to
the owner or operator. EPA believes that
the use of a registered professional
engineer or the equivalent will provide
an acceptable level of assurance to EPA
that the CQA program was implemented
as approved in the plan.
The first alternative approach to
today's proposal on which the Agency is
seeking comments would require the
owner or operator to engage an
independent third party to implement
the CQA plan. Using a third party would
provide more independence in
implementing the CQA plan than would
the proposal; however, this may result in
a greater burden on the owner or
operator because of the need for
coordination with the third party. This
additional coordination may result in
more cost and time for construction
contractors and owners or operators.
•EPAis seeking comments abbut whether
the benefits to human health and the
environment from this alternative are
justified.
The second alternative approach that
EPA is considering would have EPA or a
CQA contractor reporting directly to
EPA implement the CQA plan on every
project. This approach potentially could
delay each project because of a
nationwide network that would need to
be developed to manage EPA CQA
contractors. Also, this option would
result in a need for a significant increase
in EPA resources to provide an adequate
number of CQA contractors to satisfy
the construction schedules for every
project and to prevent or minimize
construction schedule delays.
EPA believes that by using a
registered professional engineer chosen
by the owner or operator or the
equivalent, there is a balance between
the burdens of program implementation
and the need for assurance of proper
unit construction. EPA also recognizes
that most owners or operators currently
are selecting the CQA plan to be
implemented by an independent third
party to implement the CQA plan.
The fourth issue in the CQA program
involves who should be responsible for
review and acceptance of the CQA
report. EPA considered several options
in this fourth management area for units
regulated through Part 264, as discussed
below. There is no provision in today's
proposal for the regulatory agency to
review and approve the CQA report for
facilities regulated through Part 265.
The first option that EPA considered
would require the permitting agency to
review and approve all CQA reports
before allowing the owner or operator to
receive waste at the newly constructed
unit. Requiring review and approval of
all CQA reports could result in
prolonged review and approval periods,
EPA chose not to use this option.
The second option involves employing
an independent registered professional
engineer selected by the owner or
operator, who would review and
approve all CQA documentation and
reports before the newly constructed
unit may receive wastes. Under this
option, the Agency could select certain
construction quality assurance reports
for review and approval by an
independent professional engineer. This
option was not selected in today's
proposal because EPA believes that if
the owner or operator pays for the
contractors services the engineer is not
sufficiently independent
A third option would require the
owner or operator to state to the
permitting agency that the CQA final
report, which was prepared and signed
by a registered professional engineer,
was correct before the unit could receive
wastes. This option would not provide
EPA with the opportunity to review and
approve selected CQA final reports.
This option was not selected for today's
proposal, because EPA needs that
opportunity to review and approve
selected CQA documentation reports to
verify that plans were implemented
properly.
A fourth option, which provides EPA
with the choice of reviewing and
approving selected CQA final reports for
permitted units before waste receipt
would be allowed, is presented in
today's proposal. This provision does
not allow waste receipt until the CQA
final report is approved. This option was
selected because (1) it was viewed as
less burdensome to the owner or
operator by allowing the registered
professional engineer who implements
the CQA plan to prepare and sign the
plan; and (2) it gives EPA the .
opportunity to review and approve
selected CQA documented reports.
Furthermore, it allows EPA the option of
using contracted engineers to conduct
the review (in a similar manner to the
current review process for Part B permit
applications in many regions).
As discussed above, EPA is proposing
to select certain CQA final reports for
review and approval. Such selection
would be random. EPA has several
concerns and requests public comments
about the following aspects of today's
selected approach.
(i) Should the RA be allowed multiple
30-day periods to review and comment
on the CQA report submitted by the
owner or operator until the RA is
satisfied that the plan was implemented
as approved?
(ii) During permitting agency review
and comment on the CQA
documentation report, should the facility
be denied waste receipt until the agency
is satisfied that the CQA plan was
implemented as approved?
(iii) In today's proposal, EPA requires
that the CQA officer be a registered
professional engineer or the equivalent
However, EPA requests comments on
whether it is appropriate to require the
CQA officer to be a registered
professional engineer or the equivalent.
The Agency believes that the CQA
officer's responsibilities determine the
necessary qualifications. Typically, the
responsibilities of a CQA officer include
the following:
• Serving as the liaison for the owner
or operator, design engineer, or
construction contractor personnel and
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helping to interpret and clarify
construction documents.
• Evaluating construction and
monitoring personnel on job
requirements.
• Reviewing design drawings and
specifications for clarity and
completeness.
• Scheduling site monitoring and
testing.
• Directing, overseeing, or checking
the CQA activities when performing site
monitoring and testing.
• Providing CQA reports to the owner
or operator on the results of monitoring
and testing. This includes:
—Reviewing observation records and
test results;
—Advising the owner or operator or the
design engineer of work that the CQA
officer believes should be corrected,
rejected, or uncovered for observation
or that may require special testing,
inspection, or approval;
—Rejecting defective work and
specifying corrective measures when
authorized by the owner or design
engineer.
EPA also recognizes that, in most
States, legislation requires the CQA
officer to be a registered professional
engineer or the equivalent.
D. Permit Application
Sections 270.17(b). ,18(c), and .21(b) of
today's proposal amend the existing Part
B permit application requirements of
Part 270 for surface impoundments,
waste piles, and landfills at facilities
seeking a RCRA permit. These new
provisions require owners and operators
of such units to provide descriptive
information, Including detailed plans
and engineering reports on how the
double liner, leachate collection and
removal, and leak detection system will
be designed, constructed, operated and
maintained to meet the requirements
stipulated in applicable sections of Part
284. Today's proposal also requires
owners and operators of these units that
pursue a variance from the double liner,
leachate collection and removal system,
or leak detection system requirements to
submit the appropriate detailed plans,
and engineering and hydrogeologic
reports describing alternative design
and operating practices, as well as
locational aspects. This information
must demonstrate that the requirements
for the variance are met. Section 270.20
is amended by adding a new paragraph
(i) that requires the owner or operator to
provide information required in the
response action plan to meet the
requirements of Section 284.278{i).
Sections 2Z0.17(c). .18{d), .20(k) and
.21(c) of today's proposal require the
owner or operator to provide a
description of how the leachate
detection systems will be inspected to
meet the monitoring and inspection
requirements in Part 264.
E. Applicability to Hazardous Waste
Tank Systems
The Agency is considering making
several of the same standards being
proposed today applicable to owners
and operators of hazardous waste tank
systems that use external liners as the
means of providing secondary
containment for their tank systems. In
the July 14,1966 revised tank system
standards, EPA did not envision that
tank liner systems would be designed,
installed, and operated differently from
those liner systems used at surface
impoundments, landfills, or waste piles.
Therefore, the Agency is evaluating the
applicability of today's proposed
standards for use in hazardous waste
tank system design. The release
detection and containment strategy that
was established with the promulgation
of the July 14,1966 tank system
standards is consistent with the
approach described in today's proposal.
However, EPA is unsure whether it
would be appropriate to apply all of die
standards being proposed today to
hazardous waste tank systems. The
requirements for liners established in
the revised tank system standards are
essentially performance standards. On
the other hand, the standards contained
in today's proposal are specific design
standards. The Agency believes that
certain aspects of today's proposed
regulations can be incorporated into the
Subpart J hazardous waste tank system
standards. Specifically, these are (1) the
Construction Quality Assurance (CQA)
program of Sections 264.1ft, 264.20,
265.19, and 285.20 and (2) the design
standards for leak detection systems of
Sections 284.221(h) and 285.221(g).
The revised hazardous waste tank
system standards under Sections
264.191.284.192,265.191 and 265.192
require that tank systems be properly
designed and installed and so certified
by a registered professional engineer or
qualified installation inspector. The
CQA program being proposed today is,
in large part, an elaboration of the tank
system performance standards and
should enable the certifying engineer/
installation inspector to evaluate the
design/installation of the tank system
more easily. EPA believes that the
proposed CQA program is equally as
applicable to a hazardous waste tank
liner system as to a liner system for a
surface impoundment l«n«tf>n, or waste
pile. We solicit public comment on this
matter. '
In allowing an owner or operator to
use an external liner system as a means
of providing secondary containment for
a hazardous waste tank system (see
Sections 284.193 (d) and (e). 265.193 (d)
and (e); 51FR 25422, July 14.1988). EPA
intended that such a liner and the leak
detection system be designed, installed,
and operated similar to systems for
land-based units such as surface
impoundments. EPA thus believes that
the standards being proposed today
under Sections 284.221(h) and 265.221(g)
may also be applicable to hazardous
waste tank systems. EPA believes that a
leak detection system (referred to as a
leachate collection and removal system
in this proposal) equivalent to that
described for bottom liners in this
proposal is also appropriate for
hazardous waste tank systems.
Presently, the hazardous waste tank
system standards require that a release
from the primary tank or its ancillary
equipment be detected within 24 hours.
or at the earliest practicable time if the
owner or operator can demonstrate to
the Regional Administrator that existing
detection technologies or site conditions
will not allow detection of a release
within 24 hours (see Sections
264.193(cH3) and 265.193(c)(3)). The
Agency believes that existing detection
technologies or site conditions might, in
many cases, not allow the detection,
within 24 hours, of releases from
primary tank systems that use
secondary containment liners similar to
those used at land-based units (e.g.,
surface impoundments). For example, •
factors such as the rate of the leak, tile
viscosity of the waste, or the thickness
and type of drainage layer could
singularly, or in combination, act to
retard the time to detection. Thus, EPA
is particularly interested in the public's
views on whether or not the .proposed
requirements in Sections 264.221(h)(2)
and 265.221(gX2) are appropriate for
hazardous waste tank systems. The
provision would require that the leak
detection system be capable of detecting
a leak of no more than 1 gallon per acre
per day (not including liquids absorbed
by the leachate collection and removal
system) within i day after tile leak
occurs. Although these proposed
standards tie mis requirement to
leakage from the top liner of a mandated
two-liner system (top-bottom liner
combination) for land-based units, the
Agency believes mat the shell of a
storage/treatment tank may substitute
for tiie top liner. Comments on the
applicability of the 1-gallon leak
detection Emit to tank systems should
be made considering any difference
between tank systems and land-based.
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units (i.e., landfills, surface
impoundments and waste piles) such as
size of unit, liner system design, etc. For
example, from a viewpoint of
environmental protection, how does the
proposed 1 gpad detection standard
compare to the existing release
detection standard for tank systems (i.e.,
detection within 24 hours or at the
earliest practicable time if the owner or
operator can demonstrate to the
Regional Administrator that existing
detection technologies or site conditions
will not allow detection of a release
within 24 hours)?
Would the proposed standard be
considered more or less stringent than
the existing leak detection standards for
tank systems? Can the proposed
detection standard be appropriately
applied to the ancillary equipment (e.g.,
piping) that is associated with the
hazardous waste storage/treatment
tank?
The Agency has several options by
which to apply these provisions to
hazardous waste tank systems. First,
this proposal, when promulgated in final
form, could, where appropriate, add
hazardous waste tank systems to the list
of units for which these standards apply
or, second, EPA could amend the
existing Subpart J standards to include
these provisions. Another option is to
develop a separate and new proposal to
apply these or similar provisions,
pending review of public comments, to
hazardous waste tank systems. A final
option would not involve modifying the
provisions applicable to the use of liners
in providing secondary containment for
tank systems. Rather, EPA could use the
design and operating standards
contained in today's proposal as a guide
in evaluating the adequacy of secondary
containment systems employing liners
for hazardous waste tank systems.
VI. State Authority
A. Applicability of Rules in Authorized
States
Under Section 3008 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority through Sections
3008,3013, and 7003 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 EPA
administering the Federal program in
that State. The Federal requirements no
longer applied in the authorized State,
and EPA could not issue permits for any
facilities in the State which the State
was authorized to permit. When new,
more stringent, Federal requirements
were promulgated or enacted, the State
was obliged to enact equivalent
authority within specified time frames.
New Federal requirements did not take
effect in an authorized State until the
State adopted the requirements as State
law.
In contrast under Section 3006(g) of
RCRA. 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect in non-authorized States. EPA is
directed to carry out these requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, HSWA
applies in authorized States in the
interim.
B. Effect on State Authorization
1. Background
Today's proposal includes the
provision to require new and certain
existing land disposal units for the
treatment storage or disposal of
hazardous waste to utilize an approved
leak detection system. Also, in today's
proposal, the Agency is requiring double
liners and leachate collection and
removal systems above and between the
liners for new waste piles, and
replacements and lateral expansions of
existing waste piles in parallel with
minimum technology requirements for
landfills and surface impoundments.
Today's proposal also requires the
installation of double liners and
leachate collection and removal systems
for significant portions of units at
existing hazardous waste landfills,
waste piles and surface impoundments.
In addition, double liners and leachate
collection and removal systems are
being proposed for new units, and
lateral expansions and replacements of
existing units at landfills, waste piles
and surface impoundments at facilities
permitted before November 8,1984.
Under today's proposal, owners and
operators would be required to develop
a construction quality assurance
program for certain landfills, surface
impoundments and waste piles as well
as for construction of final covers at
land treatment units.
Certain portions of today's rule are
promulgated pursuant to provisions
added by HSWA. Section 3004(o)(4) of
RCRA. as amended by HSWA,
mandates promulgation of standards
requiring utilization of approved leak
detection systems at new landfills,
surface impoundments, waste piles and
land treatment units that store, treat or
dispose of hazardous waste identified or
listed under Section 3001.
Under today's proposal, owners or
operators of newly constructed landfills,
surface impoundments, waste piles and
land treatment units must design,
construct operate and maintain a leak
detection system that is capable of
detecting leakage of hazardous
constituents at the earliest practicable
time over all areas likely to be exposed
to leachate during the active life and
post-closure care period of the unit
To achieve this earliest practicable
time detection requirement the Agency
is proposing performance and design
criteria along with monitoring
requirements for a leachate detection.
collection and removal system that is to
be located between the liners at newly
constructed landfills, surface
impoundments and waste piles. To
achieve this earliest practicable time
detection requirement at land treatment
units, the Agency is proposing
performance criteria and monitoring
requirements. These requirements will
augment the existing unsaturated zone
monitoring requirements under Part 264
for both new and existing land
treatment units.
2. HSWA
Today's rule is proposed pursuant to
Section 3004(o) of RCRA, a provision
added by HSWA. Therefore, the Agency
is proposing to add the requirement to
Table 1 in 271.10), which identifies the
Federal program requirements that are
promulgated pursuant to HSWA and
take effect in all states, regardless of
their authorized status. States may
apply for either interim or final
authorization for the HSWA provisions
identified in Table 1, as discussed in the
following section of this preamble.
As noted above, EPA will implement
today's rule in authorized States until
they modify their programs to adopt
these rules and the modification is
approved by EPA. Because this rule is
proposed pursuant to HSWA, a State
submitting a program modification may
apply to receive either interim or final
authorization under Section 3006(g)(2) or
3006(b), respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
program modifications for either interim
or final authorization are described in 40
CFR 271.21. It should be noted that all
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HSWA interim authorizations will
expire January 1,1993 (See Section
271.24(c)).
40 CFR 271.21(e)(Z) requires that
States that have final authorization must
modify their programs to reflect Federal
program changes, and must
subsequently submit the modifications
to EPA for approval. The deadlines by
which the State must modify its program
to adopt this proposed regulation will be
determined by the date of promulgation
of the final rule in accordance with
271.21(e). These deadlines can be
extended in certain cases (40 CFR
271.21(e)(3)). Once EPA approves the
modification, the State requirements
become Subtitle C RCRA requirements.
States with authorized RCRA
programs may already have
requirements similar to those in today's
rule. These State regulations have not
been assessed against the Federal
regulations being proposed today to
determine whether they meet the tests
for authorization. Thus, a State is not
authorized to implement these
requirements in lieu of EPA until the
State program modification is approved.
Of course, States with existing
standards may continue to administer
and enforce their standards as a matter
of State law. In implementing the
Federal program EPA will work with
States under cooperative agreements to
minimize duplication of efforts. In many
cases EPA will be able to defer to the
States in their efforts to implement their
programs, rather than take separate
actions under Federal authority.
States that submit their official
applications for final authorization less
than 12 months after the effective date
of these standards are not required to
include standards equivalent to these
standards in their application. However.
the State must modify its program by the
deadlines set forth in 271.21(e). States
that submit official applications for final
authorization 12 months after the
effective date of these standards must
include standards equivalent to these
standards in their application. 40 CFR
271.3 sets forth the requirements a State
must meet when submitting its final
authorization application.
Listing of HSWA provisions:
40 CFR
260.10
264.15 (b](l) and (b}{4)
2S4.117(aKlX«)
264.118 (bHlMbHZKH)
264.221 (g). (h), (i) and (j)
Z64-228tcHD. [c)(3)(i). (c)(3)(ii). (d) and (e)
264,228lb)(4)
284.301 (g),(h),(i) and (j)
264.303 (b)(l). (b){3)(i), (b)(3)(ii). (c) and (d)
264J10{b)(6)
265.15 (b)(l) and (b)(4)
264.251 (g!
264.254 (b
204.278 (a
264.264 (a
,[hMi)and(j)
Klj, (b)(3HiUb)(3Xii), (c) and (d)
,{b)(l),(b){2)and(d)
(1). (b) and (c)
265.118 (c)(l) and (c)(2)fti)
265.221 (g). (h). (i) and (j)
265.226 (b)(l), [b)(3)(i). (b)(3)(ii) and (c)
265.254 (e). (f). (g) and (h)
265.260 (a)(1), (aK3)(i). (a)(3)(ii) and (b)
265J78 (a). (b)(l), (b)(2) and (d)
265.284 [a)(l) and (b).
265.301 (g), (h), (i) and (j)
265.303 (a)(l). (a)(3)(i). (a)(3)(ii) and (b)
2S5.310(b)(5}
3. Non-HSWA
Today's rule also proposes standards
that would not be effective in authorized
States since the requirement would not
be imposed pursuant to the HSWA.
Thus, the requirements will be
applicable only in those States that do
not have interim or 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 modifications to EPA for
approval. The deadline by which the
State must modify its program to adopt
this proposed regulation will be
determined by the date of promulgation
of the final rule in accordance with
Section 271.21(e). These deadlines can
be extended in certain cases (40 CFR
271.21(e)(3)). Once EPA approves the
modification, the State requirements
become Subtitle C RCRA requirements.
States with authorized RCRA
programs may already have
requirements similar to those in today's
rule. These State regulations have not
been assessed against the Federal
regulations being proposed today to
determine whether they meet the tests
for authorization. Thus, a State is not
authorized to carry out these
requirements in lieu of EPA until the
State program modification is submitted
to EPA and approved. Of course, States
with existing standards may continue to
administer and enforce their standards
as a matter of State law.
States that submit their official
application 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 Section 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.
VII. Regulatory Requirements
A. Executive Order 12291
Executive Order 12291 requires the
regulatory impact of potential Agency
actions to be evaluated during
regulation development. Such an
assessment consists of a description of
the potential benefits and the potential
costs of the rule, including any
beneficial and any adverse effects that
cannot be quantified in monetary terms.
In addition. Executive'Order 12291
requires that regulatory agencies
prepare a Regulatory Impact Analysis in
connection with major rules. Major rules
are defined as those likely to result hi (1)
an annual effect on the economy of $100
million or more; (2) a major increase hi
costs or prices for consumers or
individual industries; or (3) significant
adverse effects on competition,
employment, investment, productivity,
innovation, or international trade.
1. Estimated Cost of the Proposed Rule
a. General Approach. EPA estimated
incremental costs for provisions of the
proposed rule which require compliance
activities. The incremental cost of each
provision was estimated by taking the
difference between the cost of
complying with the provision and the
cost of complying with current
regulations (the baseline for
measurement).
In projecting both the costs of
provisions and the costs of baseline
scenarios, EPA developed estimates of
affected populations, unit costs of
compliance, and aggregate costs of
compliance. Estimates of affected
populations were based on hazardous
waste facilities identified in the Part A
data base as of early 1987 that have not
lost their interim status. Unit cost of
compliance, based on capital costs,
operating and maintenance costs,
closure costs, and post-closure costs
(where appropriate), were developed
using EPA'8 Liner Location and Cost
Analysis Model. Both direct and indirect
costs were included. Aggregate costs
were then obtained by multiplying unit
costs by the number of units in the
affected population.
EPA used discounted cash flow
analysis to convert streams of costs over
time to equivalent annual costs over the
life of the facility. First, EPA converted
cost streams to present values by
dividing costs incurred in each year by a
discount factor, as follows:
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20267
PV
n
i=o
(costs)
n
d+r)
n
where the real rate of return (r) equals 3
percent and n is the number of periods
in which costs are incurred. The cash
flows do not include inflation, taxes, or
depreciation. As such, the present value
costs report the full social costs in real
terms.
Second, in order to spread the costs
evenly over the life of the facility, EPA
annualized the present value costs by
multiplying them by a capital recovery
factor (CRF):
CRF = r(r+l)
OL
(r+1)
OL
-1
Where OL is the operating life the
facility. EPA assumed a 20-year
operating life and a 3 percent real rate of
return, which lead to a CRF of 0.0672.
The annualized present value represents
the annual revenue required to cover the
costs imposed by the provision. This
value provides a consistent basis for
presenting and comparing costs of
different provisions. However, it
implicitly assumes that facilities can
predict future costs and can recover
them at a steady rate over the life of the
facility.
EPA also estimated unit costs of
response action for excessive leakage
through the top liner at landfill and
surface impoundment units. No
aggregate response action costs were
developed.
b. Double Liner and Leak Detection
System—(1) Landfill Units. The
proposed rule would require a leak
detection system (LDS) between the
double liners of a landfill. The owner or
operator would be required to develop a
minimum sensitivity value, which is the
smallest quantity of liquid that can pass
through a breach in the top liner and be
detected by the LDS, and calculate the
time required for detection of the liquid.
The owner or operator would also be
required to estimate an action leakage
rate or ALR (gal/acre/day) to serve as a
trigger for response action and prepare a
response action plan (RAP) which would
describe responses to be initiated by the
owner or operator when leakage' through
the top liner exceeded the ALR.
In estimating the cost of complying
with the LDS provisions, EPA assumed
that the number of landfill facilities
would remain equal to the current
number in the affected population and
that each unit would have a 20-year
operating life and a 30-year post-closure
care period. This simplifying assumption
was necessary due to lack of data on the
current and future number of new
landfill units, replacement units, lateral
expansions, and significant portions. It
was also assumed that one cell would
be opened and closed each year during
the 20-year operating life of a unit
Based on facilities listed in the Part A
data base, the affected population was
found to incldue 126 landfill facilities
each with at least one unit, ranging in
size from 500 MT/year to 150,000 MT/
year. The affected population and the
total incremental costs (above current
statutory requirements) of compliance
with the LDS provisions are shown in
Table 1. EPA estimates that the
incremental costs required to comply
with the LDS provisions would be
approximately $600,000.
(2) Surface Impoundment Units. The
proposed rule would require an LDS
between the double liners of a surface
impoundment. In addition, the owner or
operator would be required to develop a
minimum sensitivity value, detection
time, ALR, and RAP, as described for
landfill units.
TABLE 1.—COST OF COMPLIANCE
WITH DOUBLE LINER AND LEAK DE-
TECTION SYSTEM PROVISIONS FOR
LANDFILL UNITS
[1987 Dollars]
Size
500 mt/yr —
1.000mt/yr
2.000 mt/yr
6,000 mt/yr
15.000 mt/yr
35,000 mt/yr
60,000 mt/yr
100.000 mt/yr. ..
150,000 mt/yr....
Total
Num-
ber of
active
units
48
14
8
20
22
6
2
2
4
126
Incre-
mental
annua-
lized
present
value
unit cost
($1,000)
3.6
3.8
3.9
72
4.2
4.5
5.0
5.4
5.5
Incre-
mental
annua-
tized
present
value
total
cost
($1,000)
182.4
53.2
31.2
144.0
92.4
27.0
10.0
10.8
• 22.0
573.0
To estimate the cost of compliance
with the LDS provisions, EPA assumed
that the number of surface impoundment
units would remain equal to the current
number in the affected population
(except that no new impoundments
larger than 15 acres would be
constructed) and that each unit would
have a 20-year operating life. Based on
facilities identified in the Part A data in
early 1987 the affected population was
found to include 535 surface
impoundment units, ranging in size from
0.25 acres to 15 acres. The affected
population and the total incremental
costs (above current statutory
requirements) of compliance with the
LDS provisions are shown in Table 2,
EPA estimates that the incremental costs
of complying with the LDS provisions
would be approximately $1,700,000.
(3) Waste Pile Units. The proposed
'rule would require double liners in
waste pile units, with a flexible
membrane top liner and a flexible
membrane/clay composite bottom liner.
A leachate collection system would be
required above the top liner, and an LDS
would be required between die liners. In
addition, the owner or operator would
be required to develop a minimum
sensitivity value, detection time, ALR,
and RAP, as described for landfill units.
TABLE 2.—COST OF COMPLIANCE
WITH DOUBLE LINER AND LEAK DE-
TECTION SYSTEM PROVISIONS FOR
SURFACE IMPOUNDMENT UNITS
[1987 Dollars]
Size
0.25 AC
0.50 AC
1.00 AC
2.00 AC
5.00 AC _...«.._..
15.00 AC
Total ;
Num-
ber of
active-
units1
216
132
70
75
30
12
535
Incre-
mental
annua-
lized
present
value
unit cost
($1,000)
2.9
2.9
3.1
33
4.6
7.2
Incre-
mental
annua-
lized
present
value
total
cost
($1,000)
626.4
382.8
217.0
247.5
138.0
86.4
1,697.6
1 Baaed on 2.3 impoundments per active
facility. ^^
Costs were estimated jointly for the
double liner and LDS provisions. It was
assumed that facilities meeting
minimum technology requirements for
the double liner and the leachate
collection and removal system between
the linen would satisfy requirements for
the leak detection system.
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20268
Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
In estimating the cost of compliance
with the double liner and LOS
provisions, EPA assumed that the
number of waste pile units would
remain the same as the current number
and that each unit would have an
operating life of 20 years. Based on
facilities identified in the Part A data
base in early 1987, the affected
population was found to include 72
waste pile facilities with at least one
ranging in size from 250 cu. ft. to
1,000.000 cu. ft
The affected population and the total
incremental costs (above current
statutory requirements) of compliance
with the double liner and LOS
provisions are shown in Table 3. EPA
estimates that the incremental costs of
compliance with the double liner would
be approximately $800,000.
TABLE 3.—COST OF COMPLIANCE
WITH DOUBLE LINER AND LEAK DE-
TECTION SYSTEM PROVISIONS FOR
WASTE PILE UNITS
[1987 Dollars]
Size
250 cu. ft
1.000 CU. ft
5.000 cu. ft
25.000 CU. ft
100.000 cu. ft....
500.000 CU. ft.™
1, 000,000 CU
ft......................
Total
Num-
ber of
active
units '
7
15
14
12
11
7
6
72
Incre-
mental
anoua-
lized
present
value
unit cost
($1.000)
4.6
4.9
5.8
7.7
11.5
21.8
39.1
Incre-
mental
an nua-
lized
present
value
total
cost
($1,000)
32.2
73.5
81.2
92.4
126.5
152.6
234.6
793.0
1 Outdoor (uncovered) waste piles.
c. Construction Quality Assurance—
(I) Landfill Units. The proposed rule
would require the owner/operator to
complete a construction quality
assurance (CQA) plan prior to
construction, implement the plan during
construction, and prepare a report
following completion of construction to
document CQA activities. CQA would
not only be required for the opening and
closing of cells during the operating life
of the unit but for replacement of cell
covers as necessary during the post-
closure care period.
To estimate the cost of complying
with the CQA provision, EPA assumed
that the number of landfill units would
remain equal to the current number in
the affected population and that each
unit would have a 20-year operating life
and a 30-year post-closure care period.
This assumption was made as a result of
the limited data on the current and
future number of new units, replacement
units, lateral expansions, and significant
portions. EPA also assumed that a cell
would be opened and closed each, year
during the 20-year operating life, and
that five cell covers would need to be
replaced within the 26-30 year post-
closure care period.
The affected population, which is the
same as for the double liner and IDS
provisions, is shown in Table 4. The
total incremental costs (above current
statutory requirements) of compliance
with the CQA provision are also shown.
EPA estimates that the incremental
costs required to comply with the CQA
provision would be approximately
$13,400,000.
TABLE 4.—COST OF COMPLIANCE
WITH CONSTRUCTION QUALITY AS-
SURANCE PROVISIONS FOR LAND-
FILL UNITS
[1987 Dollars]
Size
500 MT/YR
1.000 MT/YR
2,000 MT/YR
6,000 MT/YR
15.000 MT/YR...
35,000 MT/YR...
60.000 MT/YR...
100,000 MT/
YR
150,000 MT/
YR
Total
Num-
ber of
active
units
48
14
8
20
22
6
2
2
4
126
Incre-
mental
annua-
lized
present
value
unit cost
($1,000)
102.6
101.7
100.2
96.4
123.4
113.7
149.4
127.4
104.3
Incre-
mental
annua-
lized
present
value
cost
($1,000)
4,924.8
1.423.8
801.6
1.928.0
2.714.8
682.2
298.8
254.8
417.2
13.446.0
(2) Surface Impoundment Units. The
proposed rule would require the owner
or operator to prepare'a CQA plan,
implement the plan during construction,
and then document CQA activities. To
estimate the cost of complying with the
CQA provision, EPA assumed that the
number of surface impoundment units
would remain equal to the current
number in the affected population
(except that no new impoundments
larger than 15 acres would be
constructed) and that each unit would
have a 20-year operating life. The
affected population and total
incremental costs (above current
statutory requirements) of compliance
with the CQA provision are shown in
Table 5. EPA estimates that the total
cost would be approximately $2,200,000.
TABLE 5.—COST OF COMPLIANCE
WITH CONSTRUCTION QUALITY AS-
SURANCE PROVISIONS FOR SUR-
FACE IMPOUNDMENT UNITS
[1987 Dollars]
Size
0.25 AC
0.50 AC
1.00 AC
2.00 AC
5.00 AC
15.00 AC
Total
Num-
ber of
active
units '
89
54
29
31
12
5
220
Incre-
mental
annua-
lized
present
value
unit cost
(51,000)
10.1
10.0
9.7
9.1
9.9
11.1
Incre-
mental
annua-
lized
present
value
total
cost
($1.000)
898.9
540.0
281.3
282.1
118.8
55.5
2,176.6
'Based on 2.3 impoundments per active
facility. It was assumed that only disposal
surface impoundments (41 percent of total
active impoundments) would require CQA for
cover installation.
(3) Waste Pile Units. The proposed
rule would require the owner or
operator to prepare a CQA plan,
implement the plan during construction,
and then document CQA activities. In
estimating the cost of compliance with
the CQA provision, EPA assumed that
the number of waste pile units would
remain equal to the current number in
the affected population and that each
unit would have a 20-year operating life.
The affected population and total
incremental costs (above current •
statutory requirements) of compliance
with the CQA provision are shown in
Table 6. EPA estimates that the
incremental costs of compliance with
the CQA provision would be
approximately $600,000
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules 20269
TABLE 6.—COST OF COMPLIANCE
WITH CONSTRUCTION QUALITY AS-
SURANCE PROVISIONS FOR WASTE
PILE UNITS
[1987 dollars]
Size
250 cu. ft
I.OOOcu. ft
5,000 cu. ft
25,000 cu. ft ...
1 00.000 cu. ft.
500.000 cu. ft. .
1. 000.000 cu.
ft _
Total
Num-
ber of
active
units1
7
15
14
12
11
7
6
72
Incre-
mental
annua-
tized
present
value
unit cost
($1,000)
8.1
8.0
8.0
7.9
7.9
7.5
7.2
Incre-
mental
annua-
lized
present
value
total
cost
($1.000)
56.7
120.0
112.0
94.8
86.9
52.5
43.2
566 1
1 Outdoor (uncovered) waste piies.
(4) Land Treatment Units. The
proposed rule would require the owner
or operator to prepare a CQA plan,
implement the plan during construction,
and then document CQA activities.
These CQA activities would be required
only during the construction of the final
vegetative cover on the unit In .
estimating the cost of compliance with
the CQA provision. EPA assumed that
the number of land treatment units
would remain equal to the current
number in die affected population and
that each unit would have a 20-year
operating life. The affected population
and total incremental costs of
compliance are shown in Table 7. EPA
estimates that the total cost would be
approximately $500,000.
TABLE 7.—COST OF COMPLIANCE
WITH CONSTRUCTION QUALITY AS-
SURANCE PROVISIONS FOR LAND
TREATMENT UNITS
(1987 donarsl
Size
2.0 AC
5.0 AC
12.0 AC
35.0 AC
60.0 AC
200.0 AC
Total
Num-
ber of
active
units
8
11-
15
17
13
7
71
Incre-
mental
annua-
Hzad
present
value
unit cost
($1400)
4.7
4.7
5.9
7.1
77
12.4
. locre-
annua-
present
value
total
cost
($1,000)
376
51.7
88.5
120.7
1001
66.8
485.4
d Total Incremental Costs of the LDS,
CQA, and Double Liner, Jhe, total costs
of the LDS, CQA, and double liner
provisions are shown in Table 8 for
landfills, surface impoundments, waste
piles, and land treatment units of
different sizes. The total incremental
cost of the provisions would be
approximately $3,000,000 for the LDS
and double liner and $16,600,000 for
CQA, for a total of $19,800.000.
TABLE 8.—TOTAL COST OF COMPLI-
ANCE WITH DOUBLE LINER, LEAK
DETECTION SYSTEM, AND CON-
STRUCTION QUALITY ASSURANCE
PROVISIONS
[Incremental armuattzed present value cost in
1987 dollars]
Facility typo
Landfill
Surface
impound-
ment
Waste pfla
Land
treatment..
Total
Liner/
LOS
($1,000)
573.0
1,697.8
793.0
3,063.6
CQA
($1.000)
13.446.0
2,176.6
566.1
485.4
16,674.1
Total
($1.000) '
13,905.2
38747
1,352.9
485.4
19,618.2
'Raw totals may be off slightly due to
roundoff error in calculations.
e. Response Action Costs. Response
action costs are the costs, incurred by
the owner or operator of a landfill,
surface impoundment, or waste pile,
responding to excessive leakage through
the top liner of a unit. As discussed
under die LDS provisions above, the
proposed rale would require the owner
or operator to establish an action
leakage rate (ALR) to serve as a trigger
for initiating interaction between the
owner or operator and EPA, to
determine the appropriate response
action for the leakage. The owner or
operator would also be required to
prepare a response action plan (RAP) as
a means to implement the appropriate
response action for leakage rates in
excess of the ALR on a site-specific
basis.
EPA used the Liner Location and Cost
Analysis Model to gauge the frequency
and magnitude of potential releases
from landfills, surface Impoundments,
and waste piles. Modeling results
indicated that leakage through the top
liner during the operating life or post-
closure care period that the ALR [20 .gal/
acre/day) should be very unlikely to
occur, assuming thai the units complied
with all applicable provisions of the
proposed rule. However. EPA presents
the unit costs of responding to a leakage
rate exceeding the ALR.
For a leak slightly larger than the ALR
(100 gal/acre/day) EPA assumed that
the appropriate response would be to
increase pumping and monitoring. The
cost of this increased pumping and
monitoring would be.insignificant.
For a leak substantially larger than
the ALR (2.000 gal/acre/day) the
appropriate response would depend on
the type of facility which was leaking. In
the case of landfills, the response was
assumed to involve increased leachate
collection in the primary LCRS. location
of the general area of the leak (using the
LDS), and installation of an intermediate
flexible membrane barrier over the
leaking area. Operational changes, such
as use of daily cover and grading of the
waste surface, would act to reduce
water infiltration into the landfill. In
addition, there would be early closure of
the leaking area within a few months
and a resulting loss of disposal capacity.
EPA estimated the cost of this reponse
to be approximately $600000 in the case
of a one-acre area.
In me case of surface impoundment,
EPA assumed that the response to a
large leak would require draining die
unit into a redundant unit at the facility,
removal and disposal of sludge from die
bottom of die impoundment, and
installation of a new flexible membrane
liner over the existing top liner. The
estimated cost for a five-acre
impoundment would be $500400.
For waste piles. EPA assumed that
response action for a large leak would
include location of the general area of
die leak (using the LDS), removal of
waste from die leaking area and
placement on another part of the pile,
and installation of a new section of
flexible membrane liner over die
existing top liner. The estimated cost to
repair a one-acre are* would be
approximately $290400.
2. Impacts oh Sma3 Easiness. For
purposes of this analysis. EPA used
Small Business Administration (SBA]
criteria for defining small businesses.
SBA regulations established size
standards in terms of either mnvimmn
number of employees or mnvimnm
revenues, and vary die cutoff by 4-digit
SIC code. Far dus analysis EPA used die
SBA definitions for «"inH businesses for
each 4-digit SIC code widi die number of
primary •nortirwl nf
delineating smaB businesses, except for
those industries where die SBA defined
small businesses by total revenues.
Although size standards vary within
industry sectors, in general, small firms
in die """"'t^turiqg industries [SIC
codes aooO-30M) are defined according
to numberof employees. Service and
trade industries are usually defined
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20270
Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
according to maximum revenue, with
limits ranging from less than S3.5 million
to S13.5 million in sales.
Using these definitions EPA evaluated
the impact of today's rule on small
businesses using regulation-induced
business closures as the key indicator of
regulatory impact. .This test assumes
that firms will spend up to 3 percent of
total assets per year to meet regulatory
requirements; any cost greater than 3
percent of total assets will result in
forced closures. EPA also considered a
second impact measure that compares
the increased annual compliance costs
to total production costs with 5 percent
as the threshold for significance. Using
these tests EPA has determined that the
regulatory costs associated with the rule
will not have a significant impact on a
substantial number of small entities.
3. Benefits. EPA also evaluated the
benefits of today's rule. EPA measured
benefits in terms of reduction in human
health risk. For purposes of this
analysis, EPA evaluated the benefits of
the proposal by comparing the risk that
could result from an unlined hazardous
waste landfill or surface impoundment
to the reduced risks at these units that
are attributed to a properly installed
double liner and a leachate detection
and collection system (as proposed
today and in the proposed double liner
and leachate collection rules of March
23,1988).
EPA systematically evaluated this risk
reduction using the Liner Location
Model. This model is a composite of
several submodels that act in concert to
estimate the impacts from hazardous
waste management/disposal practices.
The model stochastically simulates the
performance of the land disposal unit,
using the best available data to describe
the frequency of occurrence of
Individual failure events. The model
uses an extensive set of generic climatic
and hydrogeologic settings to simulate
leachate release, subsurface transport,
and constituent concentrations in
ground water at specified distances from
the disposal unit.
The model has several simplifying
assumptions that should be understood
so that its results can be interpreted
properly. An important assumption that
is typically used in analytical ground-
water models is that the aquifer is
homogeneous and isotropic. Under this
assumption, plumes develop in a steady,
symmetric manner, diluting with
distance and time. In reality, however.
homogeneous and isotropic conditions
are rarely encountered in the real world,
where structural, stratigraphic, and
lithologic properties of aquifers create
varying degrees of anisotropy and
heterogeneities which are important
determinants of ground-water flow. The
discrepancies between model
assumptions and actual conditions can
cause models to underpredict or
overpredict the rate at which
contaminants are transported in the
subsurface and the concentrations of
constituents over space and time. For
more information about the underlying
assumptions and limitations of the
model, refer to the "Liner Location Risk
and Cost Analysis Model, Draft Phase II
Report," March 1986 in the docket
established for today's rule.
The results of the modeling analysis
are not intended to be the final work on
the risk reduction capabilities of the
requirements proposed today, but rather
a first attempt at an objective and
systematic analysis. Due to the inherent
limitations of analytic ground-water
models used in generic analyses,
combined with a limited data set and
simplifying assumptions, the results
presented below cannot be fully
evaluated for their validity or
representativeness. Therefore, the
quantitative results should not be
viewed as reflecting, in an absolute
sense, an accurate and precise
representation of the risk reduction
capabilities of the technical strategies
employed by today's proposed rule.
The basic approach to analyze the
benefits of the requirements in today's
proposal was to simulate risks under
two scenarios: without liner controls,
and with properly installed (using
construction quality assurance) double
liner and leachate detection and
collection system controls. EPA
evaluated the risk under each of these
scenarios using information on the
waste and locations from 55 hazardous
waste facilities with landfills and
surface impoundments. This sample of
facilities comprises slightly over 10
percent of the approximately 500
operating land disposal facilities. For
purposes of the analysis, the modeling
assumed that the facilities operate for 20
years under both scenarios, and have a
30-year post-closure care period.
The analysis indicated that about
two-thirds of the facilities included in
the analysis have baseline risks that are
less than 10"*; one-third have risks that
exceed 10~*and are as high as 10~* in
the baseline. The effect of the proposed
liner, leak detection, and construction
quality assurance requirements is to
reduce the risk by over an order of
magnitude, such that less than one-fifth
of the facilities have risks exceeding
io-».
The analysis further indicated that the
technical design behind these proposed
liner, leak detection, and construction
quality assurance requirements is more
effective for surface impoundments than
for landfills. For landfills, a properly
installed double liner and leachate
collection system, together with a final
cover placed at closure, substantially
reduces release during the operating life
and post-closure care period (assumed
to be 50 years). However, for landfills,
these technologies do not effectively
reduce the longer term (400 year) risk
because they do not significantly reduce
the pollutant mass released from the
unit. As a result, the leachate will not
likely form and be released from the
landfill until after post-closure, when the
cap and leachate collection system
begin to fail.
Despite the findings that the double
liner, leachate collection, leak detection
system and construction quality
assurance requirements do not
significantly reduce longer term risk
(unless very long-term post-closure care
were implemented), the extra years of
containment should reduce the mass of
those pollutants that degrade in the
landfill environment.
Like landfills, properly installed
double liner and leachate collection and
detection systems at surface
impoundments delay release, but unlike
landfills, at impoundments they are also
effective in reducing long-term risk. The
analysis indicates that these
requirements are effective in reducing
the risk at almost two-thirds of the
surface impoundments with risk when
uncontrolled. Moreover, these
requirements reduce the risk below 10"*
at half of the units with risk when
uncontrolled.
The risk reduction capabilities at
surface impoundments are attributable
to the effectiveness in controlling
releases during the operating life of the
unit. The large hydraulic head that
exists during the operating life results in
extremely high releases from unlined
units during this period, causing
dissolved constituents to be released to
the unsaturated zone at relatively high
rates. The rapid initial release is
virtually eliminated by a properly
installed double liner and leachate
detection collection system, causing the
dissolved constituents to be retained in
the impoundment At closure, all liquids
and dissolved constituents are removed;
thus the total quantity of constituents
released is substantially reduced.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L 96-354), 5 U.S.C. 601 et
seq., which amends the Administrative
Procedures Act required Federal
regulatory agencies to consider small
entities throughout the regulatory
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20271
1
process. The purpose of the RFA is to
describe the effects the regulations will
have on small entities and to examine
alternatives that may reduce these
effects. EPA has determined that today's
proposed rule will not have a significant
impact on a substantial number of small
entities. EPA expects smaller firms to
face larger costs per unit of production
than large firms as a result of the
regulation but expects both small and
large firms to recover these costs in the
market place. The competitive effects of
this regulation on small entities,
therefore, are not significant. A more
detailed discussion of the impact of
today's proposal may have on small
firms is contained in the previous
section concerning Executive Order
12291.
C. Paperwork Reduction Act
The information collection
requirements of this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. An
information Collection Request
document has been prepared by EPA
(ICR No. 995 Amended) and a copy may
be obtained from Rick Westlund.
Information Policy Branch; EPA; 401M
St. SW. (PM-223); Washington. DC 20460
or by calling (202) 382-2745. Submit
comments on these requirements to EPA
and: Office of Information and
Regulatory Affairs; OMB: 726 Jackson
Place NW.; Washington, DC 20503
marked "Attention: Desk Officer for
EPA." The final rule will respond to any
OMB or public comments on the
information collection requirements.
VIII. Supporting Documents
In preparing this proposal, the Agency
has used many sources of data and
information, the most significant of
which are listed below. They have been
placed in the rulemaking docket at the
U.S. Environmental Protection Agency,
EPA RCRA Docket (Sub-basement), 401
M Street SW., Washington, DC 20460.
The docket is open from 9:30 AM to 3:30
PM, Monday through Friday, except on
Federal holidays. The public must make
an appointment to review docket
materials by calling Michelle Lee at
(202) 475-9327.
The major sources of information are
the following, which are available for
viewing only at the EPA RCRA Docket:
Background Documents
U.S. EPA. "Liner and Leak Detection
Rule Background Document." Draft,
prepared by GeoServices, Inc.. May
1987.
U.S. EPA. "Bottom Liner Performance in
Double-Lined Landfills and Surface
r Impoundments," Draft,^prepared by
GeoServices, Inc., April 1987.
Regulatory Impact Analyses
U.S. EPA. "Engineering Costs
Documentation for Baseline and
Proposed Double Liner Rule, Leak
Detection System Rule, and CQA
Program Costs for Landfills, Surface
Impoundments, Waste Piles, and Land
Treatment," Draft, prepared by Pope-
Reid Associates, Inc., April 1987.
List of Subjects
40 CFR Part 260
Administrative practice and
procedure, Confidential business
information. Hazardous waste.
40 CFR Part 264
Hazardous waste, Insurance,
Packaging and containers. Reporting
and recordkeeping requirements,
Security measures, Surety bonds.
40 CFR Part 265
Hazardous waste, Insurance,
Packaging and containers, Reporting
and recordkeeping requirements,
Security measures, Surety bonds. Water
supply.
40 CFR Part 27O
Administrative practice and
procedure, Confidential business
information. Hazardous materials
transportation. Hazardous waste.
Reporting and recordkeeping
requirements. Water pollution control,
Water supply.
40 CFR Part 271
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation. Hazardous waste, Indian
lands, Intergovernmental relations.
Penalties, Reporting and recordkeeping
requirements, Water pollution control,
Water supply.
Dated: May 13.1987.
Lee M. Thomas,
Administrator.
For the reasons given in the preamble.
Parts 260, 264, 265, 270 and 271 of
Chapter I of Title 40 of the Code of
Federal Regulations are proposed for
amendment as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260
continues to read as follows:
Authority: Sections 1006, 2002(a), 3001
through 3007. 3010, 3O14. 3015, 3017. 3018, 3019
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, 6934.
6935.6937. 6938,6939 and 6974).
2. Section 260.10 is amended by
adding the following definitions in
alphabetical order
§260.10 Definitions.
*****
"Leakage" means, hi the case of
landfills, surface impoundments, or
waste piles used for treatment, storage,
or disposal, any liquids that flow
through a liner as a liquid.
*****
"Replacement unit", means a unit (1)
that is taken out of service (i.e., the unit
has stopped receiving waste, or the
"normal" rate of waste receipt is
significantly decreased), (2) where all or
substantially all of the waste is
removed, and (3) the unit is reused (i.e.,
the unit is used to treat, store, or dispose
of hazardous waste). Replacement does
not apply to a unit where waste is
removed for treatment, followed by
placement of the treated waste from the
unit in the same unit as part of closure
or post-closure care activities of the
unit.
* * * * ' *
"Significant portion of an existing unit
that has not received wastes" means
any unlined area of a unit that has not
received waste and, if double lined
before receiving waste, would
significantly reduce the potential for
migration of hazardous constituents out
of the unit thereby reducing the
potential for ground-water and surface
water contamination.
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE AND DISPOSAL FACILITIES
1. The authority citation for Part 264
continues to read as follows:
Authority: Sections 1006,2002fa), 3004, and
3005 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act, as amended (42 U.S.C. 6905,
6912(a), 6924, and 6925).
. 2. Section 264.15 is amended by
revising paragraphs (b)(l) and (b)(4) to
read as follows:
§ 264.15 General Inspection requirement*.
* . ••,.•*.,.-.*. *
(b)fl) The owner or operator must
develop and follow a written schedule
for inspecting all monitoring and leak
detection equipment, safety and
emergency equipment security devices,
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20272 Federal Register / Vol. 52. No. 103 / Friday, May 29, 1987 / Proposed Rules
and operating and structural equipment
(such as dikes and sump pumps] that are
important to preventing, detecting, or
responding to environmental or human
health hazards.
• * * * *
(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 or
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 items and
frequencies called for in §§ 284.174,
264.194. 264.226, 284.254, 264.278, 264.303
and 264.347, where applicable.
*****
3. Subpart B is amended by adding
§§ 264.19 and 264.20.
§ 264.19 Construction quality assurance
program: Objective.
(a) A construction quality assurance
program is required for all landfills,
surface impoundments, and waste piles
to ensure, to a reasonable degree of
certainty, that a completed unit or
portion of a unit meets or exceeds all
design criteria, plans, and specifications
required in the permit. Land treatment
units must have a construction quality
assurance program to ensure, to a
reasonable degree of certainty, that a
completed unit or portion of a unit meets
or exceeds all design criteria, plans, and
specifications for construction of a cover
over the closed portion of the unit,
where applicable under § 264.280.
(b) The construction quality assurance
program must address the following
physical components of a landfill,
surface Impoundment, or waste pile,
where applicable:
(1) Foundations;
(2) Dikes;
(3) Low-permeability soil liners;
(4) Flexible membrane liners;
(5) Leachate collection systems
(includes leak detection systems); and
(6) Final cover systems.
§ 264.20 Construction quality assurance
program: Elements of the program.
(a) The owner or operator of a new
landfill, surface impoundment, waste
pile, or land treatment unit, or a lateral
expansion or replacement of an existing
landfill, surface impoundment, waste
pile, or land treatment unit of an
existing unit and for which construction
commences later than 12 months after
promulgation of this rule, must have a
written construction quality assurance
plan. The owner or operator of an
existing unit for which construction
commences on a portion of the unit later
than 12 months after promulgation of
this rule must also have a written
construction quality assurance plan for
any component of that portion listed
under § 264.19(b). The construction
quality assurance plan must be
developed, implemented, and
documented under the direction of a
construction quality assurance officer
who is a registered professional
engineer and is responsible for all
aspects of the construction quality
assurance program. The plan must be
submitted with the permit application or
as a permit modification in accordance
with § 270.41 and approved by the
Regional Administrator as part of the
permit issuance or modification
proceeding under Part 124 of this
chapter. Approval by the Regional
Administrator will assure that an
approved construction quality assurance
plan is consistent with § 264.19 and the
applicable requirements of Subparts K,
L, M, and N of this Part. The Regional
Administrator may allow the
construction quality assurance plan to
be submitted and approved in phases
based on a demonstration by the owner
or operator that detailed construction
specifications are not practicable at the
time that the plan is initially submitted,
due to the planned phased construction
of the unit over an extended time period.
If the Regional Administrator allows for
phasing the submission of the
construction quality assurance plan, a
phased time schedule will be specified
in the permit. A copy of the approved
plan and all revisions to the plan must
be kept by the owner or operator as part
of the operating record required under
S 264.73 until closure, and must be
available for inspection by the Regional
Administrator until the post-closure care
period is completed and certified in
accordance with § 264.117. The plan
must identify steps necessary to monitor
and document the quality of materials
used and the condition and manner of
their placement. The specific content of
the construction quality assurance plan
will depend on site-specific factors. The
construction quality assurance plan
must include at least the following
information:
(1) General description of the units—
Plans for the design, construction,
operation, and closure of the unit(s)
must be discussed. The description must
identify the construction stages for the
components at die unit(s);
(2) Responsibility and authority—A
detailed description of the responsibility
and authority of all organizations and
key personnel positions involved in the
development, implementation, and
documentation of the construction
quality assurance program must be
provided. The description must assure
that the objective of the construction
quality assurance program identified in
§ 264.19(a) will be met;
(3) Construction quality assurance
personnel qualifications— The
qualifications of the construction quality
assurance officer and supporting
inspection personnel must be described
in the contraction quality assurance
plan. The position descriptions must
demonstrate that the personnel will
possess the training and experience
necessary to fulfill their identified
responsibilities;
(4) Inspection and sampling
activities—The observations and tests
that will be used to ensure that the
materials and the constructed
components meet the design
specifications must be described. The
description of the inspection and testing
activities must be in sufficient detail to
allow for review of both the conceptual
approach and the specifics of title
activities. The following areas must be
included:
(i) Sampling and inspection activities
for all constructed components;
(ii) Sample size and sample locations;
(iii) Frequency of testing;
(iv) Data evaluation procedures;
(v) Acceptance and rejection criteria;
and
(vi) Plans for implementing corrective
measures as addressed in the project
specifications.
(5) Documentation of construction
quality assurance activities—At the time
of submittal of the construction quality
assurance plan, a report outline is
required that describes how the results
of the construction quality assurance
program activities for each constructed
component will be documented.
(b) The owner or operator must
describe in detail in the construction
quality assurance plan how the
components and materials used for their
construction on-site will be inspected
before, during, and after construction to
comply with the following:
(1) For construction of foundations,
the construction quality assurance
program must:
(i) Ensure structurally stable
subgrades for the overlying facility
components as specified in the design
specifications;
(ii) Ensure necessary strength, as
specified in the design specifications, for
resistance to settlement, compression,
and uplift resulting from internal or
external pressure gradients; and
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules 20273
(iii) Provide descriptions of the
foliowing inspection activities:
(A) Measurements of the depth and
slope of the excavation to ensure that it
meets design requirements;
(B) Observations to ensure proper
placement of any recessed areas for
pipes and other materials used for leak
detection, leachate collection, and
removal;
(C) Tests and observations to ensure
that all characteristics of the compacted
soil meet design specifications; and
(D) Observations of stripping and
excavation to ensure that all soft,
organic, and otherwise undesirable
materials are removed.
(2) For dikes, the construction quality
assurance program must:
(i) Ensure structural strength, as
specified in the design;
(ii) Ensure stable support for the
overlying facility components as
specified in the design; and
(iii) Provide descriptions of the
following inspection activities:
(A) Verification of material quality;
(B) Construction and use of a test fill
to verify the specified density/moisture
content/compactive effort/strength
relationship for field conditions and
construction equipment as needed to
support the design specifications when
field data on this relationship are not
available;
(C) Measurement of loose lift
thickness;
(D) Observation of clod size reduction
and material homogenization
operations, if applicable;
(E) Observation of type of compaction
equipment number of passes, and
uniformity of compaction coverage;
(F) Testing of the compacted fill
density; and
(G) Observation of proper placement
of the vegetation layer on the dike
surface.
(3) For low-permeability compacted
soil liners, the construction quality
assurance program must:
(i) Ensure inspection for imperfections
including deleterious material, off-
specification material, cracks, channels,
structural and hydraulic non-
uniformities, and any other conditions
that may cause an increase in the
permeability of the linen
(ii) Ensure the installed material is the
same as was evaluated for chemical
resistance under §§ 264.221(a)(l),
264.251(a)(l)(i), 264.301(a)(l)(i), and any
other material specifications;
(iii) Ensure that the liner has an
installed permeability that meets the
permit requirements.
(A) A test fill must be constructed to
verify that the constructed liner
complies with permit requirements for
field permeability. The test fill
compaction and testing must be well
documented, and soil materials,
procedures, and equipment used in the
test fill construction and testing must be
the same as those to be used during
construction of the full-scale unit. The
owner or operator must describe
observations and tests to be used on the
test fill, including a description of the
testing sample arrays and replications to
be conducted. The Regional
Administrator will review for
completeness the owner and operator's
plan for the design and evaluation of the
test fill to ensure that the evaluation
conditions will accurately represent the
performance of the full-scale unit.
(B) Based on the parameters
evaluated and data collected from the
test fill, the owner or operator must
justify that the tests applied to the full-
scale facility liner serve as surrogates
for actual field permeability tests. The
surrogate tests are a group of tests that
do not actually measure field
permeability but whose results, when
considered together, can be used to
estimate field permeability and, hence,
can be used to assure the proper
permeability of the installed liner in all
areas.
(C) The Regional Administrator may
approve an alternative approach to test
fill construction and testing for
demonstrating that the low-permeability
soil liner meets the installed
permeability requirement of the unit as
required by the permit; and
(iv) Provide descriptions of the
following inspection activities:
(A) Observation of the removal of
roots, rocks, rubbish, or off-specification
soil from the liner material;
(B) Identification of variations in soil
characteristics that require a change in
construction specifications;
(C) Observation of the spreading of
liner material to obtain complete
coverage and the specified loose lift
thickness;
(D) Observation of the reduction of
clod size to meet liner material
specifications;
(E) Observation of the spreading and
incorporation of soil amendments (if
specified) to obtain uniform distribution
of the specified amount in the liner
material;
(F) Observation of the spreading and
incorporation of water to obtain full
penetration through clods and uniform
distribution of the specified moisture
content;
(G) Observation of the use of
procedures, as specified in the
construction quality assurance plan, for
adjusting the soil moisture content in the
event of a significant period of
prolonged rain during construction;
(H) Observing and testing to ensure
that significant water loss before and
after compaction is prevented; and
(I) Observing and testing the soil liner
compaction process to ensure that the
compactive effort specifications are met.
(4) For flexible membrane liners, the
construction quality assurance program
must:
(i) Ensure tight seams and specified
structural strength of the seams and
joints, and the absence of tears,
punctures, or other breaches. The field
seams must be visually checked
throughout their length and width and
must also be destructively tested on a
spot basis. The Regional Administrator
will review for completeness the owner
or operator's inspection and testing
approach for destructive seam testing;
(ii) Ensure that the liner polymer
material properties are the same as
were evaluated for chemical resistance
under §5 284.221(a)(l). 264.251(a)(l)(i),
or 264.301(a)(l){i), and any other
material specifications;
(iii) Include certification that adequate
quality control was practiced during the
manufacturing of the flexible membrane
liner at the fabrication plant; and
(iv) Provide descriptions of the
following inspection activities:
(A) Inspection of the liner material
after it is received at the facility and
before installation to confirm that it is
the material specified in the design and
is not damaged;
(B) Inspection of the liner material
after storage at the facility to ensure
that it is not damaged;
(C) Testing and observation of
placement of the lower bedding layer to
ensure that design requirements are met;
(D) Observation of placement of the
flexible membrane liner to ensure that
design requirements are met;
(E) Observation of any damage to the
liner that may occur as a result of
adverse weather conditions, inadequate
temporary anchoring, or rough handling;
(F) Observation of the overlapping of
flexible membrane liner sheets to ensure
that off-specification seams do not
result; and
(G) Observation and testing of seams
to ensure proper seaming and
conformance to the seam strength
specified in the design.
(5) For leachate collection systems
(above and between the liners, where
required) the construction quality
assurance program must:
(i) Ensure that material properties
comply with the design criteria, plans,
and specifications;
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20274
Federal Register / Vol. 52. No. 103 / Friday, May 29. 1987 / Proposed Rules
(ii) Ensure the materials are the same
as were evaluated for chemical
resistance under §§ 264.221(c)(3)(i),
284.25I(a)(2)(i)(A),264.251(cK5)(i).
2B4.301(a)(2)(i)(A), or 264.301(c)(5)(i);
(Hi] Provide descriptions of the
following inspection activities:
(A) Observations and measurements
to ensure that the pipes are placed at
locations and in configurations specified
in the design;
(B) Observations and tests to ensure
that pipe grades are as specified in the
design;
(C) Observations and tests to ensure
that all pipes are joined together as
specified in the design;
(D) Observations to ensure that the
placement of any filter materials around
the pipe meet the specifications in the
design;
(E) Observations and tests to ensure
that backfilling and compaction are
completed as specified in the design and
that, in the process, the pipe network is
not damaged;
(F) Observations and tests to ensure
that the drainage layer material is of the
particle size as specified in the design
and free from excessive amounts of
fines or organic materials;
(G) Observations and tests to ensure
that the thickness and coverage of the
drainage layer complies with the design
specifications,
(H) Survey of the drainage layer to
ensure that grades are obtained as
specified in the design;
(I) Observation of construction
procedures to prevent the transport of
fines by runoff into the leachate
collection system;
(I) Observations to ensure that all
synthetic drainage layer or geotextile
materials are placed according to the
placement plan;
(K) Measurements to ensure that the
overlap of all synthetic drainage layer or
geotextile material as specified in the
design is achieved;
(L) Observations to ensure that the
synthetic drainage layer or geotextile
materials are free from excessive
wrinkles and folds:
(M) Observations to ensure that
weather conditions are appropriate for
placement of the synthetic drainage
layer or geotextile materials and that
exposure to rain, wind, and direct
sunlight during and after installation is
in compliance with the manufacturer's
recommendations;
(N) Inspection of filter layer
placement to ensure that the design
specifications, including material
specifications, placement procedures,
and thickness are met; and
(O) Inspection and testing of the
sump, leachate removal and detection
equipment, and any other associated
equipment or structures to ensure that
the design specifications, including
material and equipment specifications,
coating specifications, and mechanical
and electrical equipment installation
specifications, are met.
(6) For final cover, the construction
quality assurance program must:
(i) Ensure all layers of the cover are
inspected for uniformity, imperfections,
and damage;
(ii) Ensure that the materials for each
layer are as specified in the design
material specifications;
(iii) Ensure each layer of the final
cover is installed or constructed to meet
the requirements specified in the design;
and
(iv) Provide descriptions of the
following inspection activities. (Some of
these activities may not be appropriate
for all land treatment unit covers;
inspection activities for land treatment
unit covers must also be based on the
applicable requirements of § 264.280.)
The Regional Administrator will review
the owner or operator's planned
inspection activities for completeness to
ensure that the completed final cover
will meet the design specifications.
(A) Procedures and methods
consistent with those under
§ 284.20(b){3) for observing and testing
the installation of any low-permeability
compacted soil layer to ensure that the
design specifications are met;
(B) Procedures and methods
consistent with those under
§ 264.20(b)(4) for observing and testing
the installation of any flexible
membrane layer to ensure the design
specifications are met; and
(C) Procedures and methods for
observing and testing other layers of the
final cover (e.g.. drainage and vegetative
layer) to ensure that the design
specifications are met These activities
must include inspection of the
completed cover slope, vegetation, and
drainage conduits to ensure that they
meet the specified design.
(c) The Regional Administrator may
specify in the permit specific additional
procedures and methods for observing
and testing the construction of
components under S§ 284~20(b) (1), (2),
(3), (4), (5), and (6) to ensure that the
completed unit meets or exceeds all
design criteria, plans, and specifications.
(d) The owner or operator will be
exempted from any part of the
requirements of paragraph (b) of this
section if the Regional Administrator
finds, based on a demonstration by the
owner or operator, that alternative
inspection practices, observations, or
tests will ensure that the completed
component meets or exceeds all design
criteria, plans, and specifications.
(e) The owner or operator may request
that the Regional Administrator amend
his construction quality assurance plan
at any time before and during the active
life of the facility.
(1) The CQA officer may make some
changes to the approved CQA plan
under § 264.20(a) without seeking and
receiving prior approval from the
Regional Administrator. Changes which
do not require Regional Administrator
approval are limited to instances where
the CQA officer certifies in the operating
record that the revised CQA plan will
provide equivalent or better certainty
that the constructed component meets
the design-specifications. Within seven
days of modifying the CQA plan
approved under § 284.20(a), the owner
or operator must amend the operating
record to include the revised CQA plan
and certification.
(2) Changes other than those specified
in paragraph (e)(l) of this section, must
be submitted to the Regional
Administrator and approved by the
Regional Administrator prior to
construction in accordance with the
permit modification procedures in
§ 270.41. The owner or operator must
submit a written request for a permit
modification including a copy of the
amended CQA plan prior to any
construction relating to the amended
area of the CQA plan at least 30 days
prior to the proposed
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
20275
to the Regional Administrator within 60
days after cover construction is
completed. Submission of the report
may be phased, if approved by the
Regional Administrator in the permit, to
facilitate the permitting process or allow
the phased construction of a unit. The
construction quality assurance report
must include at least the following:
(1) Summaries of all construction and
material inspection activities to include:
(i) Observations;
(ii) Test data sheets;
(Hi) Problem reports;
(iv) Repair activities;
(v) Deviations from the design and
material specifications;
(vij Design engineer acceptance
reports (for errors, inconsistencies, and
other problems);
(vii) As built drawings; and
(viii) Block evaluation reports for
large projects.
[2] Summary discussion for each
applicable component under 5 264.19(b)
that describes the major construction
quality assurance inspection activities,
detailing how the results demonstrate
that 'he constructed unit meets or
exceeds all design criteria, plans, and
specifications. Summary tables, charts,
and graphs must be used, where
appropriate, to document
implementation of the construction
quality assurance program.
(3) Certification by the qualified
registered professional engineer in
charge of the construction quality
assurance program, that the report
accurately represents the activities and
findings of the construction quality
assurance program and that the program
was implemented in accordance with all
requirements of the approved
construction quality assurance plan.
(h) The Regional Administrator will
review the construction quality
assurance documentation report
required under paragraph (g) of this
section and notify the owner or operator
in writing whether it is accepted. If the
Regional Administrator takes no action
within 30 days from receipt of the
construction quality assurance report,
the owner or operator may receive
waste. The Regional Administrator may
notify the owner or operator that he
does not intend to review the
construction quality assurance report at
this time. The Regional Administrator
may extend the 30-day review period in.
order to request additional information
on the implementation and
documentation of the construction
quality assurance program, or to
complete an ongoing evaluation of the
report: if such an extension is necessary,
the Regional Administrator will notify
the owner or operator in writing.
4. Section 264.73 is amended by
revising paragraph (b){6) to read as
follows: . , .
§ 264.73 Operating record.
*****
(b) * * *
(6) Monitoring, testing, or analytical
data where required by Subpart F and
§ § 264.222, 264.226, 264.252, 264.254,
264.276, 264.278, 264.280, 264.302. 264.303,
264.309, and 264.347;
* * * * : *
5. Section 264.117 is amended by
revising paragraph (a)(l)(ii) to read as
follows:
§264.117 Post-closure car* and use of
property.
(a)(l) * * *
(ii) Maintenance of monitoring, waste
containment, leachate collection, and
leak detection systems in accordance
with the requirements of Subparts F, K.
L. M. and N of this Part
*****
6. Section 284.118 is amended by
revising paragraphs (b)(l) and {b}(2)(ii}
to read as follows:
§264.111 Post-closure plan; anwndmsnt
of plan.
(1) A description of the planned
monitoring and leak detection activities
and frequencies at which they will be
performed to comply with Subparts F. K,
L, M, and N of this Part during the post-
closure care period; and
W"*
(ii) The function of the monitoring,
leachate collection, and leak detection
equipment in accordance with the
requirements of Subparts F, K, L, M, and
N of this Part; and
*****
7. Section 264.221 is amended by
redesignating paragraphs (f). (g). and (h)
as paragraphs (m), (n), and (o),
respectively.
8. Section 284.221 is amended by
revising the introductory text of
paragraph (c) and adding new
paragraphs (f) through (1) to read as
follows:
§264.221 Design and operating
requirements.
*****
(c) The owner or operator of each new
surface impoundment, each new surface
impoundment unit at an existing facility,
each replacement of an existing surface
impoundment unit, and each lateral
expansion of a surface impoundment
unit must install two or more liners and
a leachate collection system between
such liners. This requirement shall apply
to the owner or operator of all such
units, regardless of the date of permit
issuance. This requirement also applies
to the owner or operator of significant
portions of surface impoundment units
on which waste has not been placed,
effective 24 months after promulgation
of this rule. The requirements of this
paragraph apply with respect to all
waste received after the issuance of the
permit or modified permit The liners
and leachate collection system must
protect human health and the
environment At a minimum, the liners
and leachate collection system must
meet the following requirements:
*****
(f) The owner or operator of any
surface impoundment unit that is
replaced later than 24 months after
promulgation of this rule is exempt from
the requirements of paragraphs (c) and
(g) of this section provided:
(1) The existing surface impoundment
unit received a final permit under this
part prior to November 8,1984;
(2) The existing unit was constructed
in compliance with the requirements of
paragraphs (a) or (b) of this section and
the liner is not replaced; and
(3) There is no reason to believe that
the liner is not functioning as designed.
(g) The owner or operator of any unit
for which construction commences after
the date of promulgation of this rule
must design, construct, operate, and
maintain a leak detection system
capable of detecting leaks of hazardous
constituents at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period. Any
liquid, waste, or waste constituent
migrating into the leak detection system
is assumed to originate from liquids
leaking through the top liner of the unit
unless the Regional Administrator finds,
based on a demonstration by the owner
or operator under § 264.222(h), that such
liquid, waste, or waste constituent
originated from another source.
(h) The leak detection system required
under paragraph (g) of mis section shall
be part of the leachate collection system
between the liners described under
paragraph (c)(3) of this section. The
leachate collection system between the
liners shall, in addition to meeting the
requirements of paragraph (cK3) of this
section, meet the following requirements
for leak detection:
(1) The mfaiiimtm bottom slope must
be 2 percent, and drainage layer
material mast h«ve the following
hydraulic characteristics:
(i) Foe gnnnlar onterids, a minimum
hydraotie conductivity of 1 on/sec and
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20276 Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
a minimum layer thickness of 12 inches;
or
(H) For synthetic drainage layer
materials, a hydraulic transmissivity of 5
x 10 "4 ma/sec or greater.
(2] Be capable of detecting a top liner
leak in the sump of no more than 1
gallon per acre per day (not including
liquids absorbed by the leachate
collection system); and, be capable of
detecting leakage in the sump in excess
of 1 gallon per acre per day within 1 day
after the leak occurs (not including
liquids absorbed by the leachate
collection system or bottom liner);
(3) Collect and remove liquids rapidly
to minimize the head on the bottom
liner. The Regional Administrator will
specify design and operating conditions
in the permit to ensure that the liquid
head on the bottom liner is minimized at
all times; and
(4) Include a sump of appropriate size
to efficiently collect liquids and prevent
liquids from backing up into the
drainage layer. Each unit must have its
own sump. The design of the sump and
removal system must provide a method
for measuring and recording the liquid
volume present in the sump and liquids
removed. The leachate volume in the
sump must be determined on a daily
basis during the active life of the unit
and at least weekly during the post-
closure care period (if applicable).
(i) In lieu of the requirements of
paragraph (h) of this section, the
Regional Administrator may specify in
the permit an alternative leak detection
system if:
(1) The Regional Administrator finds
that there is no potential for migration of
any hazardous constituents from a unit
to ground water or surface water during
the active life and post-closure care
period of the unit; or
(2) The unit complies with the
requirements of paragraphs (d) or (e) of
this section; or
(3) The owner or operator proposes an
alternative leak detection system or
technology that will meet the
requirements under paragraph (g) of this
section. In deciding whether to allow an
alternative leak detection system or
technology, the Regional Administrator
will consider
(i) The-durability and effectiveness of
the proposed system or technology;
(if) The nature and quantity of the
wastes; and
(Hi) The ability of the system or
technology to detect leaks and, in
combination with response actions to be
taken in compliance with 5 264.222,
prevent migration of hazardous
constituents out of the unit during the
active life and post-closure care period
so that ground water and surface water
are not contaminated.
(j) The owner or operator of any unit
that is required by paragraph (g) of this
section to have a leak detection system
and that is not located completely above
the seasonal high water table must
demonstrate that the operation of the
leak detection system will not be
adversely affected by the presence of
ground water.
(k) The owner or operator must
establish a top liner action leakage rate
during the design of the unit for leak
detection systems under paragraph (h)
of this section. The action leakage rate
is determined by:
(1) Using a standard value of (EPA is
proposing to select a final value from the
range of 5-20 gallons/acre/day); or
(2) A review by the Regional
Administrator of an owner or operator
demonstration, and a finding by the
Regional Administrator, that a site-
specific top liner action leakage rate is
appropriate for initiating review of the
actual leakage rate to determine if a
response action is necessary. The site-
specific top liner action leakage rate
demonstration must be based on
allowing only very small isolated
leakage through the top liner that does
not affect the overall performance of the
top liner. In deciding whether to grant a
site-specific action leakage rate, the
Regional Administrator will consider at
least the following factors;
(i) The design, construction, and
operation of the top linen
(ii) The attenuative capacity and
thickness of any soil component of the
top linen and
(iii) All other factors that would
influence the potential for leachate to
migrate through the top liner.
(1) The owner or operator of a surface
impoundment unit that is required to
comply with § 264.221 (c) and
commenced construction on or before
the effective date of this rule is required
to have a leak detection program.
(1) Within 1 year of the effective date
of this rule, the owner or operator must
submit to the Regional Administrator an
application for a permit modification to
establish a leak detection program for
the leachate collection system between
the liners. The proposed leak detection
program must include operation and
maintenance of the system in a manner
consistent with the requirements under
paragraphs (g) and (h) of this section,
considering the site-specific capabilities
of the constructed unit to prevent
migration of hazardous constituents out
of the unit.
(2) The Regional Administrator will
specify in the permit all monitoring,
inspection, maintenance, reporting.
response, and recordkeeping activities
that are necessary to ensure that the
leak detection program provides similar
protection of ground and surface water
to that provided by leak detection
systems required under paragraphs (g)
through (k) of this section and §$264.222
and 264.226, considering the capabilities
of the constructed liners and the
leachate collection system between the
liners.
9. New S 264.222 is added to Subpart
K to read as follows:
§264.222 Response action*.
(a) The owner or operator must
include a response action plan in the
permit application, or for units permitted
prior to the effective date of today's rule,
in a permit modification. This plan must
set forth the actions to be taken
immediately following a finding of rapid
and extremely large volumes of leakage
between the liners in accordance with
the requirements under paragraph (b) of
this section. A rapid and extremely large
leak is the maximum design leakage rate
that the leachate detection, collection,
and removal system can remove under
gravity flow conditions without the fluid
head on the bottom liner exceeding 1
foot in granular leak detection systems
and without the fluid head exceeding
the thickness of synthetic leak detection
systems. The owner or operator must
use an adequate safety margin in
determining the rapid and extremely
large leak to allow for uncertainties in
the design, construction, and operation
of the leachate detection, collection, and
removal system (e.g., the owner or
operator must consider decreases in the
flow capacity of the system in time
resulting from siltation, creep of
synthetic components of the system,
etc.).
(b) The response action plan for rapid
and extremely large volumes of leakage
between the liner must, at a minimum,
include the following information:
(1) A general description of the
operation of the unit including the
expected active life of the unit and
whether or not at closure wastes will be
decontaminated or removed from the
unit or left in place;
.(2) A description of the hazardous
constituents contained in the unit;
(3) A description of the range of
events that may potentially cause rapid
and extremely large volumes of leakage
into the space between the liners;
(4) A discussion of important factors
that can affect leakage into the leachate
collection and removal system between
the liners (e.g., amount and frequency of
precipitation, and amount of liquids in
the unit);
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20Z77
(5) A description of major mechanisms
that will prevent migration of hazardous
constituents out of the unit (e.g., the
condition of the liners and leachate
collection system between the liners);
(6) A detailed assessment describing
the effectiveness and feasibility of each
of the following potential immediate
interim responses for preventing
hazardous constituent migration out of
the unit by decreasing the volume of
leakage into the leak detection system:
(i] The owner or operator limits or
terminates receipt of waste;
(ii) The owner or operator provides
expeditious repair of the leak(s); or
(iii) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large.
(7] The plan must also include the
response the owner or operator will
undertake after determining the
concentration of hazardous constituents
in the liquids in the sump of the leak
detection system in accordance with the
requirements under paragraph [c)(3J of
this section.
(i) If any hazardous constituent
concentrations in the leachate exceed
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for preventing
hazardous constituent migration out of
the unit:
(A) The owner or operator terminates
receipt of waste and closes the unit;
(B) The owner or operator provides
expeditious repair of the leakf s); or
(C) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so C:~t ihc leakage
will be less than rapid and extremely
large. If a* a result of these operational
changes the leakage is still above the
action leakage rate, the owner or
operator must comply with the
requirements set forth in paragraph (e)
of this section; or
(ii) If all hazardous constituent
concentrations in the leachate are below
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for minimizing the
head on the bottom liner
(A) The owner or operator provides
expeditious repair of the leak(s); or
(B) The owner or operator institutes
operational changes at the unit
(8) The response action plan must
address a range of rapid and extremely
large volumes of leakage appropriate for
the unit with correlating recommended
response* and indicate why other
response actions were not chosen. Each
response presented must be based on a
demonstration incorporating the factors
set forth' in paragraphs (b) (1) through (7)
of this section. Other factors that would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate out of the unit may also be
considered in the demonstration.
(c)(l) The Regional Administrator will
review and approve the response action
plan for rapid and extremely large leaks
if he determines that such plan prevents,
to the extent technically feasible with
current technology, hazardous
constituent migration out of the unit in
excess of EPA approved health based
standards for ground-water protection.
If the plan does not prevent hazardous
constituent migration out of the unit in
levels exceeding the ground-water
protection standards, the Regional
Administrator shall disapprove such
plan.
(2) In making a determination under
paragraph (cKl) of this section, the
Regional Administrator shall consider,
but not be limited to the following
factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners;
(ii) The mobility of hazardous
constituents in the leachate;
(iii) The degree to which the liquid
head on die bottom liner will be
minimized by implementation of the
response action plan;
(iv) Condition of the liners and
leachate collection and removal system,
(e.g., CQA documentation review or
review of design for deficiency};
(v) Design of the doable liner system,
including design features that provide
further protection beyond those required
under | 284.221;
(vi) Future planned activities,
including remaining active lifetime
period, and closure and post-closure
care activities; and
(vii) Environmental factors, includbig
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix VIII of Part 261 of this
chapter. Specifically, ther Regional
Administrator will require the owner or
operator to test (he liquids in the sump
for the leachate defection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their.
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(dj When there is a rapid and
extremely large volume of leakage
between the liners the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence in writing within
seven days of the rapid and extremely
large leakage. The notification must
preliminarily identify the liquid volumes
that have been detected, collected, and
removed;
(2) Collect and remove accumulated
liquids;
(3) Immediately implement the
response action plan; and
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (c)(3) of
this section. The owner or operator must
provide this inibfmatioa to the Regional
Administrator at the earliest practicable
time.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after die
response has been in place foe to days,
and at other subsequent time periods as
specified by the Regional Administrator.
The report must describe the
effectiveness of the response action in
preventing, to the extent technically
feasible with current technology,
hazardous constituent migration out of
the unit in excess of levels above EPA-
approved health based standards for
groand-water protection. At a minimum,
the report must address the factors set
forth in paragraph (c)(2) of this section
and any "rfditioiml information required
by the Regional Administrator. The
Regional Administrator will review mis
report to determine whether or not the
selected response is preventing
hazardous constituent migration out of
the unit. If the Regkma! Administrator
determines that the existing response
action is not preventing, to the extent
technically feasible with current
technology, hazardous constituent
migration out of tfce unit, the Regional
Administrator wiB so mform the owner
or operator. The owner or operator mast
then either.
(i) Implement ahemative responses
for the rate of leakage if Hie approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan, if
the approved response action plan does
not contain an alternative response, by
modifying the permit fn accordance with
Part 124 procedures. The owner or
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
operator must submit a permit
modification to the Regional
Administrator within 60 days. At a
minimum, such modification must
address information set forth in
paragraph (b) of this section as well as
the rate of leakage, including the
likelihood of any increase, and the cause
of the leakage (e.g., liner incompatibility
or an accident). The permit modification
will be processed in accordance with
Part 124 procedures.
(e) Leaks that are less than rapid and
extremely large.
(1) The owner or operator is required
to prepare and submit to the Regional
Administrator a response action plan for
leaks that exceed the action leakage
rate for the top liner but are less than
rapid and extremely large. In order to
satisfy this requirement, the owner or
operator may either
(!) Submit a response action plan with
the permit application identifying
actions to be taken when lower levels of
leakage exceed the action leakage rate,
or
(ii) Submit to the Regional
Administrator a request for a permit
modification in accordance with the Part
124 procedures to amend the response
action plan within 90 days from the date
that liquids first exceed the action
leakage rate. The permit will be
processed in accordance with Part 124
procedures.
(2) For leakage that exceeds the action
leakage rate, the response action plan
must, at a minimum, include the
information set forth in paragraph (b) (1)
to (5) of this section. The owner or
operator must also include a detailed
assessment describing the effectiveness
and feasibility of each of the following
responses for preventing hazardous
constituent migration out of the unit in
excess of health-based standards:
(i) The owner or operator terminates
receipt of waste and closes the unit;
(ii) The owner or operator institutes
operational changes at the unit that will
reduce leakage between the liners to
prevent hazardous constituent migration
out of the unit;
(iii) The owner or operator provides
expeditious repair of the leak(s);
(iv) The owner or operator continues
to remove and treat the leakage with
increased ground water monitoring
activities; or
(v) The owner or operator maintains
current operating procedures.
(3) The response action plan must
recommend a specific response action
for leakage above the action leakage
rate for the unit and indicate why other
response actions were not chosen. The
response action plan may address a
range of leakage with varying responses.
Other factors that would influence the
quality and mobility of the leachate
produced and the potential for it to
migrate out of the unit may also be
considered in the demonstration.
(f)(l) The Regional Administrator will
review and approve the response action
plan for leakage less than rapid and
extremely large if he determines that
such plan prevents, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
EPA-approved health based standards
for ground-water protection. If the plan
does not prevent hazardous constituent
migration out of the unit in levels
exceeding the ground-water protection
standards, the Regional Administrator
shall disapprove such plan.
(2) In making a determination under
paragraph (f)(l) of this section, the
Regional Administrator shall consider,
but not be limited to, considering the
following factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners or the actual type and amount if
the action leakage rate is exceeded;
(ii) The mobility of hazardous
constituents in the leachate;
(iii] The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan;
(iv) The rate of leakage, if the
response action plan is submitted after
the action leakage rate is exceeded,
including the likelihood of any increase,
and the cause of the leakage (e.g., liner
incompatibility, accident, or minor leak);
(v) Condition of the liners and
leachate collection and removal system,
(e.g., CQA documentation review,
review of design for deficiency, or
review of the unit operating record
concerning accidents that have
occurred);
(vi) Design of the double liner system,
including design features that provide
further protection beyond those required
under Section 264.221;
(vii) Future planned activities,
including remaining active life time
period, and closure and post-closure
care activities; and
(viii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix Vffl of Part 261 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(g) If liquids leaking into the leak
detection system specified under
§ 264.221(h) exceed the action leakage
rate for the top liner, but are less than
rapid and extremely large, the owner or
operator must:
(I) Notify the Regional Administrator
of this occurrence in writing within
seven days of the leakage exceeding the
action leakage rate. The notification
must preliminarily identify the liquid
volumes that have been detected,
collected, and removed;
(2) Collect and remove accumulated
liquids;
(3) Implement the plan if it was
previously submitted with the
application pursuant to paragraph
(e)(l)(i) of this section, or submit a
permit modification pursuant to
paragraph (e)(l)(ii) of this section.
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (f)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time. If the owner or operator
determines that the leachate exceeds
health-based standards he must
implement any response action
approved in the plan.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and annually thereafter. The report must
describe the effectiveness of the
response action in preventing, to the
extent technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
levels above EPA-approved health
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (f)(2) above and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous .
constituent migration out of the unit. If
the Regional Administrator determines
that the existing response action is not
preventing to the extent technically
-------
feasible with current technology,
hazardous constituent migration out of
the unit, the Regional Administrator will
so inform the owner or operator. The
owner or operator must then either:
(i) Implement alternative responses
for the rate of leakage if the approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan, if
the approved response action plan does
not contain an alternative response, by
modifying the permit in accordance with
Part 124 procedures. The owner or
operator must submit a permit
modification to the Regional
Administrator within 60 days. At a
minimum, such modification must
address information set forth in
paragraph (b) of this section. The permit
modification will be processed in
accordance with Part 124 procedures.
(h) If the owner or operator
determines that the top liner action
leakage rate is being exceeded, he may
demonstrate for leakage less than rapid
and extremely large that the liquid
resulted from an error in sampling,
ana'ysis, or evaluation, precipitation
during construction, or a source other
than leakage through the top liner.
While the owner or operator may make
a demonstration under this paragraph in
addition to submitting an application
under paragraph {e) of this section, he is
not relieved of the requirement to
submit a permit modification application
or to implement the response unless the
Regional Administrator approves the
demonstration made by finding that the
liquid resulted from a source other than
a top liner leakage, and was attributed
to precipitation during construction, or
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 as soon as practicable, that he
intends to make a demonstration under
this paragraph;
(2) Within 90 days of notifying the
Regional Administrator under (g)(l) of
this section, submit a report to the
Regional Administrator that
demonstrates that the liquid resulted
from a source other than top liner
leakage or that the apparent
noncompliance with the standards
resulted from precipitation during
construction, or error in sampling,
analysis, or evaluation. The Regional
Administrator shall review the
demonstration and notify the applicant
as to whether or not such a
determination is successful. The
applicant has 45 days to comment on
such a determination. The Regional
Administrator shall respond to those
comments and make a final decision on
the applicant's demonstration.
(3) If the Regional Administrator
approves the demonstration in
paragraph (h)(2) of this section, then the
owner or operator must submit an
application for a permit modification to
the Regional Administrator to make any
appropriate changes to the response
action plan for the unit within 90 days of
the Regional Administrator's
determination under paragraph (h)(2) of
this section.
(i) Within 45 days of detecting a
significant change in the leakage rate.
the owner or operator must submit to
the Regional Administrator a report on
the leakage that includes the following
information:
(1) An assessment of the problem
causing the leak that includes a profile
of liquid quantity collected and removed
versus time, and characterization of
changes in the rate of top liner leakage;
(2) A description of any change in the
response to be implemented as
approved in the response action plan;
(3) A schedule for implementation;
and
(4) Other information that the owner
or operator deems appropriate to fully
describe the response that will be
implemented.
10. New § 264.223 is added to Subpart
K to read as follows:
§ 264.223 Construction quality assurance.
Effective 12 months after
promulgation of this rule, the owner or
operator of each new surface
impoundment unit or component
constructed at a surface impoundment
and listed under § 264.19(b) must
conduct a construction quality
assurance program in compliance with
§§264.19 and 264.20.
11. Section 264.226 is amended by
removing paragraph (a), redesignating
paragraphs (b) and (c) as (a) and (b).
respectively, and adding new
paragraphs (c). (d), and (e) as follows:
§ 264.226 Monitoring and inspection.
*****
(c) An owner or operator required to
have a leak detection system under this
subpart must:
(1) Monitor for and record on a daily
basis the presence of liquids in the leak
detection system removal sump during
the active life (including the closure
period) and at least weekly during the
post-closure period (if applicable);
(2) Analyze the daily monitoring data
during the active life under paragraph
(c)(l) of this section on a weekly basis
and the weekly monitoring data during
the post-closure period under paragraph
(c)(l) of this section on a quarterly basis
to determine if the action leakage rate
under paragraph (k) (1) or (2) of
§ 264.221 is exceeded under the
conditions of paragraphs (c)(2) (i), (ii). or
(iii) of this section:
(i) During the active life of the unit,
the daily monitoring data averaged over
one month exceed the action leakage
rate or during the post-closure care
period, the weekly monitoring data
averaged over three months exceed the
action leakage rate; or
(ii) During the active life, the daily
rate for any one-day period during a
week exceeds 50 gallons per acre per
day or during the post-closure period,
the weekly rate for any one-week period
during a quarter exceeds 350 gallons per
acre per week; or
(iii) In lieu of the requirements of
paragraphs (c)(2) (i) and (ii) of this
section, the Regional Administrator may
specify in the permit an alternative
method for determining if the action
leakage rate under paragraph (k) (1) or
(2) of 5 264.221 is exceeded.
(3) Establish a monitoring and
inspection program that will allow the
determination of the following
throughout the active life (including the
closure period) and post-closure period:
(i) The rate of leakage into the leak
detection system sump, and the removal
rate;
(ii) The deterioration, malfunction, or
improper operation of the leak detection
system;
(iii) The effectiveness of additional
controls implemented as part of a
response action plan when the action
leakage rate of the top liner is exceeded;
and
(iv) The effectiveness of the bottom
liner and leachate detection, collection,
and removal system to control leakage
below the action leakage rate.
(d) The owner or operator must record
all inspection information required in
paragraph (c) of this section in the
inspection log required under § 264.15 of
this part. The recorded information must
be in sufficient detail to demonstrate
that the leak detection permit
requirements are being complied with.
(e) Specific inspection and monitoring
requirements in addition to those
described in paragraph (c) of this
section may be required in the facility
permit by the Regional Administrator as
needed to assure detection of leaks at
the earliest practicable time. Inspection
and monitoring requirements contained
in the facility permit will be based on
preventing migration of liquids
containing hazardous constituents out of
the unit.
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12. Section 264.228 is amended by
adding a new paragraph (b}(4) to read as
follows:
§ 264.228 Closure and post-closure care.
* * * • *
(b) • ' •
(4) Maintain and monitor the leak
detection system in accordance with
§§ 264.221 (g) and (h). 264.226 (c), (d),
and (e), and comply with all other
applicable leak detection requirements
of this subpart.
§264.251 [Amended]
13. Section 264.251 is amended by
redesignating paragraph* (c). (d). (e). (f),
and (g) as paragraphs (m), (n), (o). (p),
and fq), respectively.
14. Section 264.251 is amended by
revising the introductory text of
paragraph (a) to read as follows:
§264,251 Design and operating
requirements.
(a) Any waste pile that is not covered
by paragraph (c) of this section must
have a liner system for all portions of
the waste pile (except for existing
portions of such waste pile). The liner
system must have: * * *
*****
15. Section 264.251 is amended by
adding new paragraphs (c) through (k) to
read as follows:
§ 264.251 Design and operating
(c) The owner or operator of each new
waste pile, each new waste pile unit at
an existing facility, each replacement of
an existing waste pile unit, and each
lateral expansion of a waste pile unit
must install two or more liners and a
leachate collection system above and
between such liners. This requirement
shall apply to the owner or operator of
all such units, regardless of the date of
permit issuance. This requirement also
applies to the owner or operator of
significant portion* of waste piles oa
which waste has not been placed,
effective 24 months after promulgation
of this rule. The requirements of this
paragraph apply with respect to all
waste received after the «*ita«yrg of the
permit or modified permit The liners
and the leachate collection system*
must protect human health and the
environment At a minimum, the liners
and leachate collection systems must
meet the following requirements:
(1) The liners must include:
(i) A top liner designed, operated, and
constructed of materials to prevent the
migration of any hazardous constituent
into such liner during the active hfe and
post-closure care period, and a bottom
liner designed, operated, and
constructed to prevent the migration of
any constituent through such liner
during such period. The bottom liner
must be constructed of at least a 3-foot-
thick layer of compacted clay or other
compacted soil material with a
hydraulic conductivity of no more than 1
x 10"'cm/sec; or
(ii) A top liner designed, operated, and
, constructed of materials to prevent the
migration of any hazardous constituent
into such liner during the active tile and
post-closure care period, and a bottom
liner consisting of two components. The
upper component of the bottom toner
must be designed, operated, and
constructed to prevent the migration of
any hazardous constituent into this
component during the active life and
post-closure care period. The lower
component of the bottom tiner most be
designed, operated, and constructed to
minimize the migration of any
hazardous constituent through the upper
component if a breach in the upper
component were to occur prior to the
end of the post-closure care period. The
lower component must be constructed of
compacted soil material with a
hydraulic conductivity of no more than 1
x 10~7 cm/sec.
(2) The liners 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 materials capable of
providing support to the linen and
resistance to pressure gradients above
and below the liners to prevent failure
of the liners due to settlement.
compression, or uplift and
(iii) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate.
(3) The leachate collection system
immediately above the top liner must be
designed, constructed, maintained, and
operated to collect and remove leachate
from the waste pile during the active Mfe
and post-closure care period. The
Regional Administrator will specify
design and operating conditions in the
permit to ensure that the leachate depth
over the top tiner does not exceed 30 en
(I fool}.
(4) The leachate collection system
between the liners must be designed.
constructed, maintained, and operated
to detect, collect, and remove hqmda
that leak through any area of the top
liner during the active life and post-
closure care period.
(5) The leachate collection systems
must be:
(i) Constructed of materials that are
chemically resistant to the waste
managed in the waste pile and the
leachate expected to be generated and
of sufficient strength and thickness to
prevent collapse under the pressures
exerted by overlying wastes, waste
cover materials, and any equipment
used at the waste pile; and
(ii) Designed and operated to function
without clogging during the active life
and post-closure care period.
(d) Paragraph (c) of this section will
not apply if the owner or operator
demonstrates to the Regional
Administrator, and the Regional
Administrator finds for such waste pile,
that alternative design and operating
practices, together with location
characteristics, win prevent the
migration of any hazardous constituent
into the ground water or surface water
at least as effectively as such liners and
leachate collection systems.
(e) The double liner requirement set
forth in paragraph (c) of this section may
be waived by the Regional
Administrator for any monofill, i£
(1) The monofill cnntnirta. only <
hazardous wastes from foundry furnace
emission controls or metal casting
molding sand, and such wastes do not
contain constituents which would
render the wastes fcngn»Ani« for reasons
other than the EP toxicity characteristics
in 5 261.24 of this chapter, and
(2)(iXA) The monofill ha* at least one
liner for which there i» no evidence that
such liner is leaking. For the purpose* of
this paragraph, the term "liner" means a
liner designed, constructed. installed.
and operated to prevent hazardous
waste from passing into the Kner at any
time during the active life of the facility.
or a liner designed, constructed.
installed, and operated to prevent
hazardous waste from migrating beyond
the liner to adjacent subsurface soii
ground water, or surface water at any
time during the active hie of the facility.
(B) The monofill is located more man
one-quarter mile from an underground
source of drinking water (as that term is
defined in 1144.3 of tine chapter); and
(C) The monofill it in compliance with
generally applicable ground water
monitoring requirements for facilities
with permits tinder RCRA section
300S(c);ar
(ii) The owner or operator
demonstrates that the monofiB Je
located, designed, and operated so as to
assure that there wiB fa* no migration of
any hazardous constituent into ground
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Federal Register / Vol. 52. No. 103 / Friday. May 29. 1987 / Proposed Rules
20281
water or surface water at any future
time.
(f) The owner or operator of any
waste pile that is replaced later than 24
months after promulgation of this rule is
exempt from the requirements of
paragraphs (c) and (g) of this section
provided:
(1) The existing waste pile unit
received a final permit under this Part
prior to November 8,1984.
(2) The existing unit was constructed
in compliance with the requirements of
paragraphs (a) or (b) of this section and
the liner or leachate collection system is
not replaced; and
(3) There is no reason to believe that
the liner or leachate collection system is
not functioning as designed.
(g) The owner or operator of any unit
for which construction commences after
the date of promulgation of this rule
must design, construct, operate, and
maintain a leak detection system
capable of detecting leaks of hazardous
constituents at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period. Any
liquid, waste, or waste constituent
migrating into the leak detection system
is assumed to originate from liquids
leaking through the top liner of the unit
unless the Regional Administrator finds,
based on a demonstration by the owner
or operator under § 284.252(h), that such
liquid, waste, or waste constituent
originated from another source.
(h) The leak detection system required
under paragraph (g) of this section shall
be part of the leachate collection system
between the liners described under
paragraphs (c)(4) and (c)(5) of this
section. The leachate collection system
between the liners shall, in addition to
meeting the requirements of paragraphs
(c)(4) and (c}{5) of this section, meet the
following requirements for leak
detection:
(1) The minimum bottom slope must
be 2 percent, and drainage layer
material must have the following
hydraulic characteristics:
(i) For granular materials, a minimum
hydraulic conductivity of 1 cm/sec and
a minimum layer thickness of 12 inches;
or
(ii) For synthetic drainage layer
materials, a hydraulic transmissivity of 5
x 10~-%i«/sec or greater.
(2) Be capable of detecting a top liner
leak in the sump of no more than 1
gallon per acre per day (not including
liquids absorbed by the leachate
collection system), and, be capable of
detecting leakage to the sump in excess
of 1 gallon per acre per day within 1 day
after the leak occurs (not including
liquids absorbed by the leachate
collection system or bottom liner);
(3) Collect and remove liquids rapidly
to minimize the head on the bottom
liner. The Regional Administrator will
specify design and operating conditions
in the permit to ensure that the liquid
head on the bottom liner is minimized at
all times; and
(4) Include a sump of appropriate size
to efficiently collect liquids and prevent
liquids from backing up into the
drainage layer. Each unit must have its
own sump. The design of the sump and
removal system must provide a method
for measuring and recording the liquid
volume present in the sump and liquids
removed. The leachate in the sump must
be determined on a daily basis during
the active life of the unit and at least
weekly during the post-closure care
period (if applicable).
(i) In lieu of the requirements of
paragraph (h) of this section, the
Regional Administrator may specify in
the permit an alternative leak detection
system if:
(1) The Regional Administrator finds
that there is no potential for migration of
any hazardous constituents from a unit
to ground water or surface water during
the active life and post-closure care
period of the unit Or
(2) The unit complies with the
requirements of paragraphs (d) or (e) of
this section, or
(3) The owner or operator proposes an
alternative leak detection system or
technology that will meet the
requirements under paragraph (g) of this
section. In deciding whether to allow an
alternative leak detection system or
technology, the Regional Administrator
will consider:
(i) The durability and effectiveness of
the proposed system or technology;
(ii) The nature and quantity of the
wastes; and
(iii) The ability of the system or
technology to detect leaks and, in
combination with response actions to be
taken in compliance with 5 284.252,
prevent migration of hazardous
constituents out of the unit during the
active Kfe and post-closure care period
so that ground water and surface water
are not contaminated.
(j) The owner or operator of any unit
that is required by paragraph (g) of this
section to have a leak detection system
and that is not located completely above
the seasonal high water table must
demonstrate that the operation of the
leak detection system will not be
adversely affected by the presence of
ground water.
(k) The owner or operator must
establish a top liner action leakage rate
during the design of the unit for leak
detection systems under paragraph (h)
of this section. The action leakage rate
is determined by:
(1) Using a standard value of (EPA
proposing to select a final value from the
range 5-20 gallons/acre/day); or
(2) A review by the Regional
Administrator of an owner or operator
demonstration, and a finding by the
Regional Administrator, that a site-
specific top liner action leakage rate is
appropriate for initiating review of the
actual leakage rate to determine if a
response action is necessary. The site-
specific top liner action leakage rate
demonstration must be based on
allowing only very small isolated
leakage through the top liner that does
not affect the overall performance of the
top liner. In deciding whether to grant a
site-specific action leakage rate, the
Regional Administrator will consider at
least the following factors:
(i) The design, construction, and
operation of the top liner and the
leachate collection and removal system
above the top linen
(ii) The alternative capacity and
thickness of any soil component of the
top linen and
(iii) All other factors that would
influence the potential for leachate to
migrate through the top liner.
16. New ff 284.252 is added to Subpart
L to read as follows:
f 264.252 RcwponM action*.
(a) The owner or operator must
include a response action plan in the '
permit application, or for units permitted
prior to the effective date of today's rule.
in a permit modification. This plan must
set forth the actions to be taken
immediately following a finding of rapid
and extremely large volumes of leakage
between the liners in accordancewith
the requirements under paragraph (b) of
this section. A rapid and extremely large
leak is the maximum design leakage rate
that the leachate detection, collection.
and removal system can remove under
gravity flow conditions without the fluid
head on the bottom Bner exceeding 1
foot in granular leak detection systems
and without the fluid head exceeding
the thickness of synthetic leak detection
systems. The owner or operator must .
use an adequate safety margin in : •'•
determining the rapid and extremely '':
large leak to allow for uncertainties hi
the design, construction, and operation1
of the leachate detection, collection, and
removal system (e.g., the owner or
operator must consider decreases in the
flow capacity of the system lit time
resulting from siltation, creep of •
synthetic components of the system, •
etc.);--- ;:-- -i -^-•*-•• ***•-•.-•••
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20282 Federal Register / Vol. 52, No. 103 / Friday. May 29, 1987 / Proposed Rules
(b) The response action plan for rapid
and extremely large volumes of leakage
between the liner must, at a minimum,
include the following information:
(1) A general description of the
operation of the unit including the
expected active life of the unit and
whether or not at closure wastes will be
decontaminated or removed from the
unit or left in place;
(2) A description of the hazardous
constituents contained in the unit;
(3) A description of the range of
events that may potentially cause rapid
and extremely large volumes of leakage
into the space between the liners;
(4) A discussion of important factors
that can affect leakage into the leachate
collection and removal system between
the liners (e.g^ amount and frequency of
precipitation, and amount of liquids in
the unit);
(5) A description of major mechanisms
that will prevent migration of hazardous
constituents out of the unit (e.g., the
condition of the liners and leachate
collection system between the liners);
(8) A detailed assessment describing
the effectiveness and feasibility of each
of the following potential immediate
Interim responses for preventing
hazardous constituent migration out of
the unit by decreasing the volume of
leakage into the leak detection system:
(!) The owner or operator limits or
terminates receipt of waste;
(i!) The owner or operator provides
expeditious repair of the leak(s); or
(ill) The owner or operator institutes
operational changes at the unit that will
minimhg? leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large.
(7) The plan must aha include the
response the owner or operator will
undertake after determining the
concentration of hazardous constituents
in the liquids in the sump of the leak
detection system in accordance with the
requirements under paragraph (c}{3) of
this section.
(!) If any hazardous constituent
concentrations in the leachate exceed
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for preventing
hazardous constituent migration out of
the unit:
(A) The owner or operator terminates
receipt of waste and closes the unit;
(B) The owner or operator provides
expeditious repair of the leakfs); or
(C) The owner or operator institutes
operational changes ml the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large. If as a result of these operational
changes the leakage is still above the
action leakage rate, the owner or
operator must comply with the
requirements set forth in section (e)
below: or
(ii) If all hazardous constituent
concentrations in the leachate are below
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for minimizing the
head on the bottom liner:
(A) The owner or operator provides
expeditious repair of the leak(s); or
(B) The owner or operator institutes
operational changes at the unit.
(8) The response action plan must
address a range of rapid and extremely
large volumes of leakage appropriate for
the unit with correlating recommended
responses and indicate why other
response actions were not chosen. Each
response presented must be based on a
demonstration incorporating the factors
set forth hi paragraph (b) (1) through (7)
of this section. Other factors that would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate out of the unit may also be
considered in the demonstration.
(c)(l) The Regional Administrator will
review and approve the response action
plan for rapid and extremely large leaks
if he determines that such plan prevents,
to the extent technically feasible with
current technology, hazardous
constituent migration out of the unit in
excess of EPA-approved health based
standards for ground-water protection.
If the plan does not prevent hazardous
constituent migration out of the unit in
levels exceeding the ground-water
protection standards, the Regional
Administrator shall disapprove such
plan.
(2) In making a determination under
paragraph (c)(l) of this section, the
Regional Administrator shall consider
but not be limited to considering the
following factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners;
(ii) The mobility of hazardous
constituents in the leachate; •
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan;
(iv) Condition of the liners and
leachate collection and removal system,
(e.g., CQA documentation review, or
review of design for deficiency);
(v) Design of the double Oner system,,
including design features that provide
further protection beyond those required
under $ 284.251;
(vi) Future planned activities,
including remaining active life time
period, and closure and post-closure
care activities; and
(vii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix Vm of Part 281 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system, to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested- for.
(d) When there is a rapid and
extremely large volume of leakage
between the tinere the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence m writing within
seven days of the rapid and extremely
large leakage. The notification mast
preliminarily identify die liquid volumes
that have been detected, collected, and
removed;
(2) CoBect and remove accumulated
liquids;
(3) Immediately implement the
response action plan; and
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (c)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for HO days,
and at other subsequent time periods as
specified by the Regional Administrator.
The report must describe the
effectiveness of the response action in
preventing, to the extent technically
feasible with current technology, .
hazardous com tiftuent migration out of
the unit in excess of levels above EPA-
approved fc*ffMi bueil standards for
ground-water protection. At a Tnhitnmm,
the report east address flw factors set
forth in paragraph (cX*) of dm section
and any- additional reformation required
by the Regional Administrator. The
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
20283
Regional Administrator will review this
report to determine whether or not the
selected response is preventing
hazardous constituent migration out of
the unit. If the Regional Administrator
determines that the existing response
action is not preventing, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit, the Regional
Administrator will so inform the owner
or operator. The owner or operator must
then either
(i) Implement alternative responses
for the rate of leakage, if the approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan if
the approved response action plan does
not contain an alternative response, by
modifying the permit in accordance with
Part 124 procedures. The owner or
operator must submit a permit
modification to the Regional
Administrator within 60 days. At a
minimum, such modification must
address information set forth in
paragraph (b) of this section as well as
the rate of leakage, including the
Likelihood of any increase, and the cause
of the leakage (e.g., liner incompatibility
or an accident). The permit modification
will be processed in accordance with
Part 124 procedures.
(e) Leaks that are less than rapid and
extremely large. (1) The owner or
operator is required to prepare and
submit to the Regional Administrator a
response action plan for leaks that
exceed the action leakage rate for the
top liner but are less than rapid and
extremely large. In order to satisfy this
requirement the owner or operator may
either
(i) Submit a response action plan with
the permit application identifying
actions to be taken when lower levels of
leakage exceed the action leakage rate;
or
(ii) Submit to the Regional
Administrator a request for a permit
modification, in accordance with the
Part 124 procedures, to amend the
response action plan within 90 days
from the date that liquids first exceed
the action leakage rate. The permit
modification will be processed in
accordance with Part 124 procedures.
(2) For leakage that exceeds the action
leakage, the response action plan must,
at a minimum, include the information
set forth in paragraph (b) (1) to (5) of this
section. The owner or operator must
also include a detailed assessment
describing the effectiveness and
feasibility of each of the following
responses for preventing hazardous
constituent migration out of the unit in
excess of health-based standards.
(i) The owner or operator terminates
receipt of waste and closes the unit;
(ii) The owner or operator institutes
operational changes at the unit that will
reduce leakage between the liners to
prevent hazardous constituents
migration out of the unit;
(iii) The owner or operator provides
expeditious repair of the leak(s);
(iv) The owner or operator continues
to remove and treat the leakage with
increased ground water monitoring
activities; or
(v) The owner or operator maintains
current operating procedures.
(3) The response action plan must
recommend a specific response action
for leakage above the action leakage
rate for the unit and indicate why other
response actions were not chosen. The
response action plan may address a
range of leakage with varying responses.
Other factors that would influence the
quality and mobility of the leachate
produced and the potential for it to
migrate out of the unit may also be
considered in the demonstration.
(f)(l) The Regional Administrator will
review and approve the response action
plan for leakage less than rapid and
extremely large if he determines that
such plan prevents, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit hi excess of
EPA-approved health based standards
for ground-water protection. If the plan
does not prevent hazardous constituent
migration out of the unit in levels
exceeding the ground-water protection
standards, the Regional Administrator
shall disapprove such plan.
(2) In making a determination under
paragraph (f)(l) of this section, the
Regional Administrator shall consider
but not be limited to considering the
following factors
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners or the actual type and amount if
the action leakage rate is exceeded;
(ii) The mobility of hazardous
constituents in the leachate;
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan;
(iv) The rate of leakage, if the
response action plan is submitted after
the action leakage rate is exceeded,
including the likelihood of any increase,
and the cause of the leakage (e.g., liner
incompatibility, accident or minor leak);
(v) Condition of die liners and
leachate collection and removal system,
(e.g., CQA documentation review,
review of design for deficiency, or
review of the unit operating record
concerning accidents that have
occurred);
(vi) Design of the double liner system,
including design features that provide
further protection beyond those required
under 5 264.251;
(vii) Future planned activities,
including remaining active life time
period, and closure and post-closure
care activities; and
(viii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix Vm of Part 261 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(g) If liquids leaking into the leak
detection system specified under
§ 284.251(h) exceed the action leakage
rate for the top liner, but are less than
rapid and extremely large, the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence in writing within
seven days of the leakage exceeding the
action leakage rate. The notification
must preliminarily identify the liquid
volumes that have been detected.
collected, and removed;
(2) Collect and remove accumulated
liquids,
(3) Implement the plan if it was
previously submitted with the
application pursuant to paragraph
(e)(l)(i) of this section, or submit a
permit modification pursuant to
paragraph (e)(l)(ii) of this section.
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (f)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time. If the owner or operator
determines that the leachate exceeds
heahhbased standards, he must
implement any response action
approved in the plan.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
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20284
Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
action as soon as practicable after the
response has been in place for 60 days,
and annually thereafter. The report must
describe the effectiveness of the
response action in preventing, to the
extent technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
levels above EPA-approved health
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (f](2) of this section and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous
constituent migration out of the unit. If
the Regional Administrator determines
that the existing response action is not
preventing to the extent technically
feasible with current technology,
hazardous constituent migration out of
the unit, the Regional Administrator will
so inform the owner or operator. The
owner or operator must then either:
(1) Implement alternative responses
for the rate of leakage, if the approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan, if
the approved response action plan does
not contain an alternative response by
modifying the permit hi accordance with
Part 124 procedures. The owner or
operator must submit a permit
modification to the Regional
Administrator within 60 days. At a
minimum, such modification must
address information set forth in
paragraph (b) of this section. The permit
modification will be processed in
accordance with Part 124 procedures.
(h) If the owner or operator
determines that the top liner action
leakage rate is being exceeded, he may
demonstrate for leakage less than rapid
and extremely large that the liquid
resulted from an error in sampling,
analysis, or evaluation, precipitation
during construction, or a source other
than leakage through the top liner.
While the owner or operator may make
a demonstration under this paragraph in
addition to submitting an application
under paragraph (e) of this section, he is
not relieved of the requirement to
submit * permit modification application '
or to implement the response unless the
Regional Administrator approves the
demonstration made by finding that the
liquid resulted from a source other than
a top liner leakage, and was attributed
to precipitation during construction, or
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 as soon as practicable, that he
intends to make a demonstration under
this paragraph;
(2) Within 90 days of notifying the
Regional Administrator under (g)(l) of
this section, submit a report to the
Regional Administrator that
demonstrates that the liquid resulted
from a source other than top liner
leakage or that the apparent
noncompliance with the standards
resulted from precipitation during
construction, or error hi sampling,
analysis, or evaluation. The Regional
Administrator shall review the
demonstration and notify the applicant
as to whether or not such a
determination is successful. The
applicant has 45 days to comment on
such a determination. The Regional
Administrator shall respond to those
comments and make a final decision on
the applicant's demonstration.
(3) If the Regional Administrator
approves the demonstration in
paragraph (h)(2) above, then the owner
or operator must submit an application
for a permit modification to the Regional
Administrator to make any appropriate
changes to the response action plan for
the unit within 90 days of the Regional
Administrator's determination under
paragraph (h)(2) of this section.
(i) Within 45 days of detecting a
significant change in the leakage rate,
the owner or operator must submit to
the Regional Administrator a report on
the leakage that includes the following
information:
(1) An assessment of the problem
causing the leak that includes a profile
of liquid quantity collected and removed
versus time, and characterization of
changes hi the rate of top liner leakage,
(2) A description of any change in the
response to be implemented as
approved in the response action plan;
(3) A schedule for implementation;
and
(4) Other information that the owner
or operator deems appropriate to fully
describe the response that will be
implemented.
17. New § 264.253 is added to Subpart
L to read as follows:
$264£53 Construction quality assurance.
• Effective 12 months after
promulgation of this rule, the" owner or
operator of each new waste pile unit or
component constructed at a waste pile
and listed under § 284.19(b) must
conduct a construction quality
assurance program in compliance with
§5 284.19 and 284.20.
18. Section 264.254 is amended by
removing paragraph (a), redesignating
paragraph (b) as (a), and adding new
paragraphs (b), (c), and (d) as follows:
§264.254 Monitoring and Inspection.
*****
(b) An owner or operator required to
have a leak detection system under this
subpart must:
(1) Monitor for and record on a daily
basis the presence of liquids in the leak
detection system removal sump during
the active life (including the closure
period);
(2) Analyze the daily monitoring data
during the active life under paragraph
(6)(1) of this section on a weekly basis
to determine if the action leakage rate
under paragraph (k) (1) or (2) of
§ 264.251 is exceeded under the
conditions of paragraphs (b)(2) (i), (ii), or
(iii) of this section:
(i) The daily monitoring data averaged
over one month exceed the action
leakage rate during the active life; or
(ii) The daily rate for any one-day
period during a week exceeds 50 gallons
per acre per day; or
(iii) In lieu of the requirements of
paragraphs (b)(2) (i) and (ii) of this
section, the Regional Administrator may
specify in the permit an alternative
method for determining if the action '
leakage rate under paragraph (k) (1) or
(2) of 5 284.251 is exceeded.
(3) Establish a monitoring and
inspection program that will allow the
determination of the following
throughout the active life and the post-
closure care period:
(i) The rate of leakage into the leak
detection system sump, and the removal
rate,
(ii) The deterioration, malfunction, or
improper operation of the leak detection
system;
(iii) The effectiveness of additional
controls implemented as part of a
response action plan when the action
leakage rate of the top liner is exceeded;
and
(iv) The effectiveness of the bottom
liner and leachate detection, collection,
and removal system to control leakage
below the action leakage rate.
(c) The owner or operator must record
all inspection information required in
paragraph (b) of this section in the
inspection log required under 5 264.15 of
this part The recorded information must
be in sufficient detail to demonstrate
that the leak detection permit
requirements an being complied with.
(d) Specific inspection and monitoring
requirements in addition to those
described in paragraph (b) of this
section may be required in the facility
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20285
permit by the Regional Administrator as
needed to assure detection of leaks at
the earliest practicable time. Inspection
and monitoring requirements contained
in the facility permit will be based on
preventing migration of liquids
containing hazardous constituents out of
the unit.
19. Section 264.278 is amended by
revising paragraphs (a) introductory
text, (b)(l). (b)(2). and the first sentence
of paragraph (d) and adding new
paragraphs (i). (j), and (k), to read as
follows:
§264.278 Unsaturated zone monitoring.
*****
(a) The owner or operator must
monitor the soil and soil-pore liquid to
determine at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period
whether hazardous constituents migrate
out of the treatment zone.
*****
(b) * * *
(1) Represent to at least a 95%
confidence level, 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, to at least a 95%
confidence level, the quality of soil-pore
liquid and the chemical make-up of the
soil below the treatment zone.
*****
(d) The owner or operator must
conduct soil monitoring and soil-pore
liquid monitoring immediately below the
treatment zone and entirely above the
seasonal high water table. * * *
* * * * * .
(i) The owner or operator must include
in the permit application a response
action plan that sets forth the action to
be taken immediately following a
finding, pursuant to paragraph (f) of this
section of widespread leakage of
hazardous constituents from the
treatment zone.
The response action plan for
widespread leakage must, at a minimum,
include the following information:
(1) A general description of the
operation of the unit;
(2) A description of the hazardous
constituents contained in the unit;
(3) An assessment of potential causes
of widespread leakage of hazardous
constituents from the treatment zone;
(4) A discussion of important factors
that can affect leakage of hazardous
constitutents from the treatment zone;
(5) A description of major mechanisms
that will prevent migration of hazardous
constituents out of the treatment zone;
(6) A detailed assessment describing
the effectiveness and feasibility of the
following responses that the owner or
operator may implement for any
potential widespread leakage out of the
treatment zone:
(i) The owner or operator terminates
application of waste and doses the unit;
or
(ii) The owner or operator institutes
operational changes at the unit that will
minimize leakage out of the treatment
zone so that the permit conditions are
met.
(j) For widespread leakage out of the
treatment zone the owner or operator
must:
(1) Notify the Regional Administrator
of this occurrence in writing within
seven days following measurement of
widespread leakage. The notification
must indicate preliminary identification
of hazardous constituents that have
been detected, and the extent of the
area and depth below the treatment
zone where constituents have migrated;
and
(2) Immediately implement the
response action plan.
(k)(l) The owner or operator of a land
treatment unit that does not meet the
requirements of paragraphs (a), (b)(l),
(b){2), (d). and (i) of this section on the
date of promulgation of this rule must,
by the effective date of this rale, submit
to the Regional Administrator an
application for a permit modification to
ensure compliance with those
paragraphs.
(2) The Regional Administrator will
specify in the permit all monitoring,
inspection, maintenance, reporting,
response, and recordkeeping activities
that are necessary to ensure compliance
with paragraphs (a), (b)(l). (b)(2). (d).
and (i) of this section.
20. New § 264.284 is added to Subpart
M to read as follows:
§264.284 Inspection.
(a) The owner or operator must
establish an inspection program that
will allow the determination of the
following during the active life and post-
closure care period:
(1) The deterioration, malfunction, or
improper operation of unsaturated zone
monitoring equipment required under
§ 264.278; and
(2} The effectiveness of additional
controls implemented as part of any
response action when hazardous
constituents that migrate beyond the
treatment zone statistically exceed
background levels.
(bj The owner or operator must record
all inspection information required in
paragraph (a) of this section in the
inspection log required under § 264.15 of
this part. The recorded information must
be in sufficient detail to demonstrate
that the unsaturated zone monitoring
permit requirements are being complied
with.
(c) Specific inspection and monitoring
requirements in addition to those
described in paragraph (a) of this
section and § 284.278 may be required in
the facility permit by the Regional
Administrator as needed to assure
detection of the migration of hazardous
constituents out of the treatment zone at
the earliest practicable time. Inspection
and monitoring requirements contained
in the facility permit will be based on
preventing migration of hazardous
constituents, so that ground water and
surface water will not be contaminated.
21. Section 264.301 is amended by
redesignating paragraphs (f). (g), (h). (i),
and [j) as paragraphs (m), (n), (o), fjp).
and (q), respectively and by revising
paragraph (k) and the introductory text
of paragraph (c) and adding new
paragraphs (f) through (j) and (1), to read
as follows:
§264.301 Design and operating
requirement*. .
***•*•
(c) The owner or operator of each new
landfill, each new landfill unit at an
existing facility, each replacement of an
existing landfill unit, and each lateral
expansion of a landfill unit must install
two or more liners and a leachate
collection system above and between
such liners. This requirement shall apply
to the owner or operator of all such
units, regardless of the date of permit
issuance. This requirement also applies
to the owner or operator of significant
portions of landfill units on which waste
has not been placed, effective 24 months
after promulgation of this rule. The
requirements of this paragraph apply
with respect to all waste received after
the issuance of the permit or modified'
permit. The liners and the leachate
collection systems must protect human
health and the environment At a
minimum, the liners and leachate
collection systems must meet the
following requirements:
* * * * *
{f} The owner or operator of any
landfill unit that is replaced later than 24
months after promulgation of this rule is
exempt from the requirements of
paragraphs (c) and (g) of this section c
provided:
(1) The existing landfill unit received
a final permit under this Part prior to
Novembers, 1984;
(2) The existing unit was constructed
in compliance with me requirements of
paragraphs (a) or (b) of this section and
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the liner or leachate collection system is
not replaced; and
(3) There is no reason to believe that
the liner or leachate collection system is
not functioning as designed.
(g) The owner or operator of any unit
for which construction commences after
the date of promulgation of this rule
must design, construct, operate, and
maintain a leak detection system
capable of detecting leaks of hazardous
constituents at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period. Any
liquid, waste, or waste constituent
migrating into the leak detection system
is assumed to originate from liquids
leaking through the top liner of the unit
unless the Regional Administrator finds,
based on a demonstration by the owner
or operator under § 264.302(h), that such
liquid, waste, or waste constituent
originated from another source.
(h) The leak detection system required
under paragraph (g) of this section shall
be part of the leachate collection system
between the liners described under
paragraphs (c)(4) and (c)(5) of this
section. The leachate collection system
between the liners shall, in addition to
meeting the requirements of paragraphs
(c)(4) and (c)(5) of this section, meet the
following requirements for leak
detection:
(1) The minimum bottom slope must
be 2 percent, and drainage layer
material must have the following
hydraulic characteristics:
(i) For granular materials, a minimum
hydraulic conductivity of 1 cm/sec and
a minimum layer thickness of 12 inches;
or
(ii) For synthetic drainage layer
materials, a hydraulic transmissivity of 5
x 10~4 m2/sec or greater.
(2) Be capable of detecting a top liner
leak in the sump of no more than 1
gallon per acre per day (not including
liquids absorbed by the leachate
collection system); and, be capable of
detecting leakage in the sump in excess
of 1 gallon per acre per day within 1 day
after the leak occurs (not including
liquids absorbed by the leachate
collection system or bottom liner);
(3) Collect and remove liquids rapidly
to minimize the head on the bottom
liner. The Regional Administrator will
specify design and operating conditions
in the permit to ensure that the liquid
head on the bottom liner is minimized at
all times; and
(4) Include a sump of appropriate size
to efficiently collect liquids and prevent
liquids from backing up into the
drainage layer. Each unit must have its
own sump. The design of the sump and
removal system must provide a method
for measuring and recording the liquid
volume present in the sump and liquids
removed. The leachate in the sump must
be determined on a daily basis during
the active life of the unit at least weekly
during the post-closure care period (if
applicable).
(i) In lieu of the requirements of
paragraph (h) of this section, the
Regional Administrator may specify in
the permit an alternative approved leak
detection system if:
(1) The Regional Administrator finds
that there is no potential for migration of
hazardous contituents from a unit to
ground water or surface water during
the active life and post-closure care
period of the unit; or
(2) The unit complies with the
requirements of paragraphs (d) or (e) of
this section; or
(3) The owner or operator proposes an
alternative leak detection system or
technology that will meet the
requirements under paragraph (g) of this
section. In deciding whether to allow an
alternative leak detection system or
technology, the Regional Administrator
will consider
(i) The durability and effectiveness of
the proposed system or technology;
(ii) The nature and quantity of the
wastes; and
(iii) The ability of the system or
technology to detect leaks and, in
combination with response actions to be
taken in compliance with § 264.302,
prevent migration of hazardous
constituents out of the unit during the
active life and post-closure care period
so that ground water and surface water
are not contaminated.
(j) The owner or operator of any unit
that is required by paragraph (g) of this
section to have a leak detection system
and that is not located completely above
the seasonal high water table must
demonstrate that the operation of the
leak detection system will not be
adversely affected by the presence of
ground water.
(k) The owner or operator must
establish a top liner action leakage rate
during the design of the unit for leak
detection systems under paragraph (h)
• of this section. The action leakage rate
is determined by:
(1) Using a standard value of (EPA is
proposing to select a final value from the
range 5-20 gallons/acre/day); or
(2) A review by the Regional
Administrator of an owner or operator
demonstration, and a finding by the
Regional Administrator, that a site-
specific top liner maximum leakage rate
is appropriate for initiating review of the
actual leakage rate to determine if a
response action is necessary. The site-
specific top liner maximum leakage rate
demonstration must be based on
allowing only very small isolated
leakage through the top liner that does
not affect the overall performance of the
top liner. In deciding whether to grant a
site-specific maximum leakage rate, the
Regional Administrator will consider at
least the following factors:
(i) The design, construction, and
operation of the top liner and the
leachate collection and removal system
above the top liner;
(ii) The attenuative capacity and
thickness of any soil component of the
top liner; and
(iii) All other factors that would
influence the potential for leachate to
migrate through the top liner.
(1) The owner or operator of a landfill
unit that is required to comply with
§ 264.301(c) and commenced
construction on or before the effective
date of this rule is required to have a
leak detection program.
(1) Within one year of the effective
date of this rule, die owner or operator
must submit to the Regional
Administrator an application for a
permit modification to establish a leak
detection program for the leachate
collection system between the liners.
The proposed leak detection program
must include operation and maintenance
of the system in a manner consistent
with the requirements under paragraphs
(g) and (h) of this section, considering
the site-specific capabilities of the
constructed unit to prevent migration of
hazardous constituents out of the unit.
(2) The Regional Administrator will
specify in the permit all monitoring,.
inspection, maintenance, reporting,
response, and recordkeeping activities
that are necessary to ensure that the
leak detection program provides similar
protection of ground and surface water
to that provided by leak detection
systems required under paragraphs (g)
through (k) of this section and 55 264.302
and 264.303, considering the capabilities
of the constructed liners and the
leachate collection system between the
liners. '
23. New § 264.302 is added to Subpart
N to read as follows:
§ 264.302 Response actions.
(a) The owner or operator must
include a response action plan in the
permit application, or for units permitted
prior to the effective date of today's rule,
in a permit modification. This plan must
set forth the actions to be taken
immediately following a finding of rapid
and extremely large volumes of leakage
between the liners in accordance with
the requirements under paragraph (b) of
this section. A rapid and extremely large
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20287
I
I
leak is the maximum design leakage rate
that the leachate detection, collection,
and removal system can remove under
gravity flow conditions without the fluid
head on the, bottom liner exceeding 1
foot in granular leak detection systems
and without the fluid head exceeding
the thickness of synthetic leak detection
systems. The owner or operator must
use an adequate safety margin in
determining the rapid and extremely
large leak to allow for uncertainties in
the design, construction, and operation
of the leachate detection, collection, and
removal system (e.g.. the owner or
operator must consider decreases in the
flow capacity of the system in time
resulting from siltation, creep of
synthetic components of the system,
etc.).
(b) The response action plan for rapid
and extremely large volumes of leakage-
between the liner must, at a minimum,
include the following information:
(1) A general description of the
operation of the unit including the
expected active'life of the unit and
whether or not at closure wastes will be
decontaminated or removed from the
unit or left in place;
(2) A description of the hazardous
constituents contained in the unit;
(3) A description of the range of
events that may potentially cause rapid
and extremely large volumes of leakage
into the space between the liners;
(4) A discussion of important factors
that can affect leakage into the leachate
collection and removal system between
the liners [e.g., amount and frequency of
precipitation, and amount of liquids in
the unit),
(5) A description of major mechanisms
that will prevent migration of hazardous
constituents out of the unit (e.g., the
condition of the liners and leachate
collection system between the liners);
(6) A detailed assessment describing
the effectiveness and feasibility of each
of the following potential immediate
interim responses for preventing
hazardous constituent migration out of
the unit by decreasing the volume of
leakage into the leak detection system:
(i) The owner or operator limits or
terminates receipt of waste;
(ii) The owner or operator provides
expeditious repair of the leak(s); or
(iii) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large.
(7) The plan must also include the
response the owner or operator will
undertake after determining the
concentration of hazardous constituents
in the liquids in the sump of the leak
detection system in accordance with the
requirements under paragraph (c)(3) of
this section.
(i) If any hazardous constituent
concentrations in the leachate exceed
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for preventing
hazardous constituent migration out of
the unit
(A) The owner or operator terminates
receipt of waste and closes the unit;
(B) The owner or operator provides
expeditious repair of the leak(s); or
(C) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large. If as a result of these operational
changes the leakage is still above the
action leakage rate, the owner or
operator must comply with the
requirements set forth in paragraph (e)
of this section; or
(ii) If all hazardous constituent
concentrations in the leachate are below
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for minimizing the
head on the bottom linen
(A) The owner or operator provides
expeditious repair of the leak(s); or
(B) The owner or operator institutes
operational changes at the unit
(8) The response action plan must
address a range of rapid and extremely
large volumes of leakage appropriate for
the unit with correlating recommended
responses and indicate why other
response actions were not chosen. Each
response presented must be based on a
demonstration incorporating the factors
set forth in paragraph (fa) (1) through (7)
of this section. Other factors that would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate out of the unit may also be
considered in the demonstration.
(c)(l) The Regional Administrator will
review and approve the response action
plan for rapid and extremely large leaks
if he determines that such plan prevents,
to the extent technically feasible with
current technology, hazardous
constituent migration out of the unit in
excess of EPA-approved health based
standards for ground-water protection.
If the plan does not prevent hazardous
constituent migration out of the unit in
levels exceeding the ground-water
protection standards, the Regional
Administrator shall disapprove such
plan.
(2) In making a determination under
paragraph (c)(l) of this section, the
Regional Administrator shall consider.
but not be limited to considering the
following factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners;
(ii) The mobility of hazardous
constituents in the leachate;
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan;
(iv) Condition of the liners and
leachate collection and removal system,
(e.g., CQA documentation review or
review of design for deficiency);
(v) Design of the double liner system,
including design features that provide
further protection beyond those required
under §264.301;
(vi) Future planned activities,
including remaining active life period,
and closure and post-closure care
activities, and
(vii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix Vm of Part 261 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(d) When there is a rapid and
extremely large volume of leakage
between the liners the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence-in writing within
seven days of the rapid and extremely
large leakage. The notification must
preliminarily identify the liquid volumes
that have been detected, collected, and
removed;
(2) Collect and remove accumulated
liquids;
(3) Immediately implement the -
response action plan; and
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (c)(3) of
this' section. The owner or operator must
provide this information to the Regional
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Administrator at the earliest practicable
time.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and at other subsequent time periods as
specified by the Regional Administrator.
The report must describe the
effectiveness of the response action in
preventing, to the extent technically
feasible with current technology,
hazardous constituent migration out of
the unit in excess of levels above EPA-
approved health based standards for
ground-water protection. At a minimum,
the report must address the factors set
forth in paragraph (c)(2) of this section
and any additional information required
by the Regional Administrator. The
Regional Administrator will review this
report to determine whether or not the
selected response is preventing
hazardous constituent migration out of
the unit. If the Regional Administrator
determines that the existing response
action is not preventing, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit, the Regional
Administrator will so inform the owner
or operator. The owner or operator must
then either;
(i) Implement alternative responses
for the rate of leakage, if the approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan if
the approved response action plan does
not contain an alternative response by
modifying the permit in accordance with
Part 124 procedures. The owner or
operator must submit a permit
modification to the Regional
Administrator within 60 days. At a
minimum such modification must
address information set forth hi
paragraph (b) of this section as well as
the rate of leakage, including the
likelihood of any increase, and the cause
of the leakage (e.g., liner incompatibility,
or an accident). The permit modification
will be processed hi accordance with
Part 124 procedures.
(e) Leaks that are less than rapid and
extremely laiye. (1) The owner or
operator is required to prepare and
submit to the Regional Administrator a
response action plan for leaks that
exceed the action leakage rate for the
top liner but are less than rapid and
extremely large. In order to satisfy this
requirement, the owner or operator may
either:
(i) Submit a response action plan with
the permit application identifying
actioni to be taken when lower levels of
leakage exceed the action leakage rate;
or
(ii] Submit to the Regional
Administrator a request for a permit
modification, in accordance with the
Part 124 procedures, to amend the
response action plan within 90 days
from the date that liquids first exceed
the action leakage rate. The permit
modification will be processed in
accordance with Part 124 procedures.
(2) For leakage that exceeds the action
leakage rate, the response action plan
must, at a minimum, include the
information set forth in paragraph (b) (1)
to (5) of this section. The owner or
operator must also include a detailed
assessment describing the effectiveness
and feasibility of each of the following
responses for preventing hazardous
constituent migration out of the unit in
excess of health-based standards:
(i) The owner or operator terminates
receipt of waste and closes the unit;
(ii) The owner or operator institutes
operational changes at the unit that will
reduce leakage between the liners to
prevent hazardous constituents
migration out of the unit;
(iii) The owner or operator provides
expeditious repair of the leak(s);
(iv) The owner or operator continues
to remove and treat the leakage with
increased ground water monitoring
activities; or
(v) The owner or operator maintains
current operating procedures.
(3) The response action plan must
recommend a specific response action
for leakage above the action leakage
rate for the unit and indicate why other
responses action were not chosen. The
response action plan may address a
range of leakage with varying responses.
Other factors that would influence the
quality and mobility of the.leachate
produced and the potential for it to
migrate out of the unit may also be
considered in the demonstration.
(f)(l) The Regional Administrator will
review and approve the response action
plan for leakage less than rapid and
extremely large if he determines that
such plan prevents, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
EPA-approved health based standards
for ground-water protection. If die plan
does not prevent hazardous constituent
migration out of the unit in levels
exceeding the ground-water protection
standards, tie Regional Administrator
shall disapprove such plan.
(2) In making a determination under
paragraph (f)(l) of this section, the
Regional Administrator shall consider,
but not be limited to considering the
following factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners or the actual type and amount if
the action leakage rate is exceeded;
(ii) The mobility of hazardous
constituents in the leachate;
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan;
(iv) The rate of leakage, if the
response action plan is submitted after
the action leakage rate is exceeded,
including the likelihood of any increase,
and the cause of the leakage (e.g., liner
incompatibility, accident, or minor leak);
(v) Condition of the liners and
leachate collection and removal system,
(e.g., CQA documentation review,
review of design for deficiency, or
review of the unit operating record
concerning accidents that have
occurred);
(vi) Design of the double liner system.
including design features that provide
further protection beyond those required
under 5 264J21;
(vii) Future planned activities,
including remaining active life time
period, and closure and post-closure
care activities;
(viii) Environmental factors, including
amount and frequency of precipitation^
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix Vm of Part 261 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentrations. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(g) If liquids leaking into the leak
detection system specified under
S 264~301(h) exceed the action leakage
rate for the top liner, bat are less than
rapid and extremely large, the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence m writing within
seven days of the leakage exceeding the
action leakage rate. The notification
must preliminarily identify the liquid
volumes that have beea detected,
collected, and removed;
(2) Collect and remove' accumulated
liquids; and
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(3) Implement the plan if it was
previously submitted with the
application pursuant to paragraph
(e)(l)(i) of this section, or submit a
permit modification pursuant to
paragraph (e)(l)(ii) of this section.
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (f)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time. If the owner or operator
determines that the leachate exceeds
health-based standards he must
implement any response action
approved in the plan.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and annually thereafter. The report must
describe the effectiveness of the
response action in preventing, to the
extent technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
levels above EPA-approved health
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (f)(2) of this section and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous
constituent migration out of the unit If
the Regional Administrator determines
that the existing response action is not
preventing, to the extent technically
feasible with current technology,
hazardous constituent —ig"a?ion out of
the unit, the Regional Administrator will
so inform the owner or operator. The
owner or operator must then either:
(i) Implement alternative responses
for the rate of leakage, if the approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan, if
the approved response action plan does
not contain an alternative response, by
modifying the permit in accordance with
Part 124 procedures. The owner or
operator must submit a permit
modification to the Regional
Administrator within 60 days. At a
minimum such modification must
address information set forth in
paragraph (b) of this section. The permit
modification will be processed in
accordance with Part 124 procedures.
(h) If the owner or operator
determines that the top liner action
leakage rate is being exceeded, he may
demonstrate for leakage less than rapid
and extremely large that the liquid
resulted from an eirorih'sampling,
analysis, or evaluation, precipitation
during construction, or a source other
than leakage through the top liner.
While the owner or operator may make
a demonstration under this paragraph in
addition to submitting an application
under paragraph (e) of this section, he is
not relieved of the requirement to
submit a permit modification application
or to implement the response unless the
Regional Administrator approves the
demonstration made by finding that the
liquid resulted from a source other than
_a top liner leakage, and was attributed
to precipitation during construction, or
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 as soon as practicable, that he
intends to make a demonstration under
this paragraph;
(2) Within 90 days of notifying the
Regional Administrator under (g)(l) of
this section, submit a report to the
Regional Administrator that
demonstrates that the liquid resulted
from a source other than top liner
leakage or that the apparent
noncompliance with the standards
resulted from precipitation during
construction, or error in sampling,
analysis, or evaluation.
The Regional Administrator shall
review the demonstration and notify the
applicant as to whether or not such a
determination is successful. The
applicant has 45 days to comment on
such a determination. The Regional
Administrator shall respond to those
comments and make a final decision on
the applicant's demonstration.
(3) If the Regional Administrator
approves the demonstration in
paragraph (h){2) of this section, then the
owner or operator must submit an
application for a permit modification to
the Regional Administrator to make any
appropriate changes to the response
action plan for the unit within 90 days of
the Regional Administrator's
determination under paragraph (h}(2) of
this section.
(i) Within 45 days of detecting a
significant change in the leakage rate,
the owner or operator must submit to
the Regional Administrator a report on
the leakage that includes the following
information:
(1) An assessment of the problem
causing the leak that includes a profile
of liquid quantity collected and removed
versus time, and characterization of
changes in the rate of top liner leakage;
(2) A description of any change in the
response to be implemented as
approved in the response action plan;
(3) A schedule for implementation;
and
(4) Other information that the owner
or operator deems appropriate to fully
describe the response that will be
implemented.
24. Section 264.303 is amended by
removing paragraph (a), redesignating
paragraph (b) as (a) and adding new
paragraphs {b), (c), and (d) as follows: •
§264.303 Monitoring and Inspection.
* • * * •
(b) An owner or operator required to
have a leak detection system under this
subpart must:
(1) Monitor for and record on a daily
basis the presence of liquids in the leak
detection system removal sump during
the active life (including the closure
period) and at least weekly during the
post-closure period;
(2) Analyze the daily monitoring data
during the active life under paragraph
(b)(l) of this section on a weekly basis
and the weekly monitoring data during
the post-closure period under paragraph
(b](l) of this section on a quarterly basis
to determine if the action leakage rate
under paragraph (k) (1) or (2J of
§ 264.301 is exceeded under the
conditions of paragraphs (b)(2) (i), (ii), or
(iii) of this section:
(i) The daily monitoring data averaged
over one month exceeds the action
leakage rate during the active life or the
weekly monitoring data averaged over
three months exceeds the action leakage
rate during the post-closure period; or
(ii) The daily rate for any one-day
period during a week exceeds 50 gallons
per acre per day during the active life or
the weekly rate for any one-week period
during a quarter exceeds 350 gallons per
acre per week during the post-closure
period; or
(iii) In lieu of the requirements of
paragraphs (b)(2) (i) and (ii) of this
section, the Regional Administrator may
specify in the permit an alternative
method for determining if the action
leakage rate under paragraph (k) (1) or
(2) of § 264.301 is exceeded.
(3) Establish a monitoring and
inspection program that will allow the
determination of the following
throughout the active life and post-
closure care period:
(i) The rate of leakage into the leak
detection system sump, and the removal
rate;
(ii) The deterioration, malfunction, or
improper operation of the leak detection
system;
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(!!!) The effectiveness of additional
controls implemented as part of a
response action plan when the
maximum leakage rate of the top liner is
exceeded; and
(iv) The effectiveness of the bottom
liner and leachate detection, collection.
and removal system to control leakage
below the action leakage rate.
(c) The owner or operator must record
all inspection information required in
paragraph (b) of this section in the
inspection log required under § 264.15 of
this part. The recorded information must
be in sufficient detail to demonstrate
that the leak detection permit
requirements are being complied with.
(d) Specific inspection and monitoring
requirements in addition to those
described in paragraph (b) of this
section may be required in the facility
permit by the Regional Administrator as
needed to assure detection of leaks at
the earliest practicable time. Inspection
and monitoring requirements contained
in the facility permit will be based on
preventing migration of liquids
containing hazardous constituents out of
the unit
25. New § 284.304 is added to read
Subpart N to as follows:
§ 264.304 Construction quality assurance.
Effective 12 months after
promulgation of this rule, the owner or
operator of each new landfill unit or
component constructed at a landfill and
listed under § 284.19(b) must conduct a
construction quality assurance program
in compliance with §5 264.19 and 264.20.
28. Section 284.310 is amended by
adding a new paragraph (b){6) to read as
follows:
§ 264.310 Closure and post-closure care.
• * • * *
(b) • • •
(6) Maintain and monitor the leak
detection system in accordance with
§§ 264.301 (g) and (h), 284.303 {b). {c),
and (d), and comply with all other
applicable leak detection requirements
of this subpart.
PART 265-mTERIM 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. 1000:2002(a). 3004. SOUS.
and 3015. Solid Waste Disposal Act. as
amended by the Resource Conservation and
Recovery Act of 1970, at amended (42 U.S.C.
6905,6912(a). 6924,6925, and 6935).
2. Section 265.15 is amended by
revising paragraphs (b){l) and (b)(4) to
read as follows:
§ 265.15 General Inspection requirements.
« * • • *
(b)(l) The owner or operator must
develop and follow a written schedule
for inspecting all monitoring and leak
detection equipment safety and
emergency equipment security devices,
and operating and structural equipment
(such as dikes and sump pumps) that are
important to preventing, detecting, or
responding to environmental or human
health hazards.
*****
(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 or
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 items and
frequencies called for in §§ 265.174,
265.194, 265.226, 265.260, 265.278, 265.303,
265.347, 285.377. and 265.403.
*****
3. Subpart B is amended by adding
§§265.19 and 265.20.
§ 265.19 Construction quality assurance
program: Objective.
(a) A construction quality assurance
program is required for all landfills,
surface impoundments, and waste piles
to ensure, to a reasonable degree of
certainty, that a completed unit or
portion of a unit meets or exceeds all
design criteria, plans, and specifications.
Land treatment units must have a
construction quality assurance program
to ensure, to a reasonable degree of
certainty, that a completed unit or
portion of a unit meets or exceeds all
design criteria, plans, and specifications
for construction of a cover over the
closed portion of the unit, where
applicable under § 265.280.
(b) The construction quality assurance
program must cover the following
physical components of a landfill,
surface impoundment or waste pile,
where applicable:
(1) Foundation;
(2) Dikes;
(3) Low-permeability soil linen;
(4) Flexible membrane linen;
(5) Leachate collection systems
(includes leak detection systems); and
(6) Final cover system.
(c) 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 or
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 items and
frequencies called for in §§ 265.174,
265.194, 265.226, 265.260, 265.278, 265.303.
285.347, 285.377. and 265.403, where
applicable.
§ 265.20 Construction quality assurance
program; Elements of the program.
(a) The owner or operator of a landfill,
surface impoundment, waste pile, or
land treatment unit which is a new unit
or replacement of an existing unit and
for which construction commences later
than 12 months after promulgation of
this rule, must have a written
construction quality assurance plan. The
owner or operator of an existing unit for
which construction commences on a
portion of the unit later than 12 months
after promulgation of this rule must also
have a written construction quality
assurance plan for any component of
that portion listed under 5 265.19(b). The
construction quality assurance plan
must be developed, implemented, and
documented under the direction of a
construction quality assurance officer
responsible for all aspects of the
construction quality assurance program.
The construction quality assurance
officer must be a registered professional
engineer. The owner or operator must
submit his construction quality
assurance plan to the Regional
Administrator for approval prior to
starting construction. The Regional
Administrator may determine within 30
days of receipt of the plan that the plan
does not need to be reviewed for
approval If the Regional Administrator
makes such a finding, he must notify the
owner or operator in writing. The
Regional Administrator, as part of his
review of the plan, will provide the
public, through a notice in local
newspapers, the opportunity to submit
written comments on the construction
quality assurance plan and request
modifications of the plan within 30 days
of the date of the notice. He will also, in
response to a request or at his own
discretion, hold a public hearing
whenever such a hearing might clarify
one or more issues concerning the
construction quality assurance plan. The
Regional Administrator will give public
notice of the hearing at least 30 days
before it ocean. (Public notice of the
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1
hearing may be given at the same time
as notice of the opportunity for the
public to submit written comments, and
the two notices may be combined.) The
Regional Administrator will approve,
modify, or disapprove the construction
quality assurance plan. If the Regional
Administrator disapproves the plan he
shall provide the owner or operator a
detailed written statement of reasons for
disapproval. The owner or operator
shall modify the plan or submit a new
construction quality assurance plan for
approval. The Regional Administrator
will approve or modify this plan in
writing within 60 days following the
close of the public comment period or
public hearing, whichever is later. If the
Regional Administrator modifies the
plan, this modified plan becomes the
approved construction quality assurance
plan. Approval by the Regional
Administrator will assure that the
approved construction quality assurance
plan is consistent with SS 285.19, 265.2ft
and the applicable requirements of
Subparts K, L. M, and N of this part. A
copy of this modified plan must be
mailed to the owner or operator. The
Regional Administrator may allow
phasing of the construction quality
assurance plan to be submitted and
approved in phases based on a
demonstration by the owner or operator
that detailed construction specifications
are not practicable at the time that the
plan is initially submitted, due to the
planned phased construction of the unit
over an extended time period. If the
Regional Administrator allows for'
phasing the submission of the
construction quality assurance plan, he
will review and approve a phased time
schedule. A copy of the approved plan
and all revisions to the plan must be
kept by the owner or operator as part of
the operating record required under
§ 265.73 until closure, and must be
available for inspection by the Regional
Administrator until the post-closure care
period is completed and certified in
accordance with $ 265.117. The plan
must identify steps necessary to monitor
and document the quality of materials
used and the condition and manner of
their placement. The specific content of
the construction quality assurance plan
will depend on site-specific factors. The
construction quality assurance plan
must include at least the following
elements:
(1) General description of the units—
Plans for the design, construction,
operation, and closure of the unit(s)
must be discussed. The description must
identify the construction stages for the
components at the unites};
(2) Responsibility and authority—A
detailed description of the responsibility
and authority of all organizations and
key personnel positions involved in the
development, implementation, and
documentation of the construction
quality assurance program must be
provided. The description must assure
that the objective of the construction
quality assurance program identified in
§ 265.19(a) will be met;
(3) Construction quality assurance
personnel qualifications—The
qualifications of the construction- quality
assurance officer and supporting
inspection personnel must be described
in the construction quality assurance
plan. The position descriptions must
demonstrate that the personnel will
possess the training and experience
necessary to fulfill their identified
responsibilities;
(4) Inspection and sampling
activities—The observations and tests
that will be used to ensure that the
materials and the constructed
components meet the design
specifications must be described. The
description of the inspection and testing
activities must be sufficiently detailed to
allow for review of both the conceptual
approach and the specifics of the
activities. The following areas must be
included:
(i) Sampling and inspection activities
for all constructed components;
(ii) Sample size and sample locations;
(iii} Frequency of testing;
(iv) Data evaluation procedures;
(v) Acceptance and rejection criteria;
and
(vi) Plans for implementing corrective
measures as addressed in the project
specifications.
(5) Documentation of construction
quality assurance activities—At tke time
of submittal of the construction quality
assurance plan, a report outline is
required that describes bow the results
of the construction quality assurance
program activities for each constructed
component will be documented.
(b) The owner or operator mast
describe in detail in the construction
quality, assurance plan how the
components and materials used for their
construction on-site will be inspected
before, during, and after construction to
comply with the following:
(1) For construction of foundations.
the construction quality assurance
program must
(i) Ensure structurally stable
subgrades for the overlying facility
components as specified in the design
specifications;
(ii) Ensure necessary strength, as
specified in the design specificatioBS, for
resistance to settlement, compression,
and uplift resulting from internal or
external pressure gradients; and
(iii) Provide descriptions of the '
following inspection activities:
(A) Measurements of the depth and
slope of the excavation to ensure that it
meets design requirements;
.(B) Observations to ensure proper
placement of any recessed areas for
pipes and other materials used for leak
detection, leachate collection, and
removal;
(C) Tests and observations to ensure
that all characteristics of compacted soil
meet the design specifications; and
(D) Observations of stripping and
excavation to ensure that all soft,
organic, and otherwise undesirable
materials are removed.
(2) For dikes, the construction quality
assurance program must:
(i) Ensure structural strength, aa
specified in the design;
(ii) Ensure stable support for the
overlying facility components as
specified in the design; and
(iii) Provideldescriptions of the
following inspection activities;
(A) Verification of material quality;
(B) Construction and use of a test fill
to verify the specified density /moisture
content/compactive effort/strength
relationship for field conditions and
construction equipment as needed to
support the design specifications when
field data on mis relationship are not
available;
(C) Measurement of loose lift
thickness;
(D) Observation of clod size reduction
and material komogenization
operations, if applicable;
(E) Observation of type of compaction
equipment number of passes, and
uniformity of compaction coverage;
(F) Testing, of the compacted fiH
density; and
(G) Observation of proper placement
of the vegetation layer on toe dike
surface.
(3) For low-permeability compacted
soil liners, the ceBsiraction quality
assurance program must; .
(i) Ensure inspection for imperfection*
including deleterious material, off-
specification material, cracks, channels.
structural and hydraulic noa-
" uniformities, and any other conditions,
that may cause an increase in the
permeability of the liner;
(ii) Ensure the installed material is the
same as was evaluated for chenricai
resistance in accordance with §§ 265.721
265.30t(a](2Xi). and any other material
specifications;
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Fedeial Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
(iii) Ensure that the liner has an
installed permeability that meets the
requirements of Subparts K. L, and N of
this Part.
(A) A test fill must be constructed to
verify that the constructed liner
complies with requirements for field
permeability. The test fill compaction
and testing must be well documented.
and soil materials, procedures, and
equipment used in the test fill
construction and testing must be the
same as those used during construction
of the full-scale unit. The owner or
operator must describe observations
and tests to be used on the test fill,
including a description of the testing
sample arrays and replications to be
conducted. The Regional Administrator
will review for completeness the owner
or operator's plan for the design and
evaluation of the test fill to ensure that
the evaluation conditions will
accurately represent the performance of
the full scale unit.
(B) Based on the parameters
evaluated and data collected from the
test fill, the owner or operator must
justify that the tests applied to the full-
scale facility liner serve as surrogates
for actual field permeability tests. The
surrogate tests are a group of tests that
do not actually measure field
permeability but whose results, when
considered together, can be used to
estimate field permeability and, hence,
can be used to assure the proper
permeability of the installed liner in all
areas.
(C) The Regional Administrator may
approve an alternative approach to test
fill construction and testing for
demonstrating that the low-permeability
soil liner meets the installed
permeability requirement of the unit as
required; and
(iv) Provide descriptions of the
following inspection activities:
(A) Observation of the removal of
roots, rocks, rubbish, or off-specification
soil from the liner material;
(B) Identification of variations in soil
characteristics that require a change in
construction specifications;
(C) Observation of the spreading of
liner material to obtain complete
coverage and the specified loose lift
thickness;
(D) Observation of the reduction of
clod size to meet liner material
specifications:
(E) Observation of the spreading and
incorporation of soil amendments (if
specified) to obtain uniform distribution
of the specified amount in the liner
material;
(F) Observation of the spreading and
incorporation of water to obtain full
penetration through clods and uniform
distribution of the specified moisture
content;
(G) Observation of the use of
procedures, as specified in the
construction quality assurance plan, to
adjust the soil moisture content in the
event of a significant period of
prolonged rain during construction;
(H) Observing and testing to ensure
that significant water loss before and
after compaction is prevented; and
(1} Observing and testing the soil liner
compaction process to ensure that the
compacted effort specifications are met.
(4) For flexible membrane liners, the
construction quality assurance program
must:
(i) Ensure tight seams and specified
structural strength of the seams and
joints, and the absence of tears,
punctures, or other breaches. The field
seams must be visually checked
throughout their length and width and
must also be destructively tested on a
spot basis. The design engineer or the
construction quality assurance officer
will develop the inspection and testing
approach for destructive seam testing to
ensure that the design specifications are
met;
(ii) Ensure that the liner polymer
material properties are the same as
were evaluated for chemical resistance
in accordance with §§ 265.221(a)(2)(i),
265.254(b)(2)(i), or 265.301(a)(2)(i). and
any other material specifications;
(iii) Include certification that adequate
quality control was practiced during
manufacture of the constructed flexible
membrane liner .at the fabrication plant;
and
(iv) Provide descriptions of the
following inspection activities:
. (A) Inspection of liner material after it
is received at the facility and before
installation to confirm that it is the
material specified in the design and is
not damaged;
(B) Inspection of the liner material
after storage at the facility to ensure
that it is not damaged;
(C) Testing and observation of
placement of the lower bedding layer to
ensure that design requirements are met;
(D) Observation of placement of the
flexible membrane liner to ensure that
design requirements are met;
(E) Observation of any damage to the
liner that may occur as a result of
adverse weather conditions, inadequate
temporary anchoring, or rough handling;
(F) Observation of the overlapping of
flexible membrane liner sheets to ensure
that off-specification seams do not
result; and
(G) Observation and testing of seams
to ensure proper seaming and
conformance to the seam strength
specified in the design.
(5) For leachate collection systems
(above and between the liners, where
required) the construction quality
assurance program must:
(i) Ensure that material properties
comply with the design criteria, plans,
and specifications;
(ii) Ensure the materials are the same
as were evaluated for chemical
resistance in accordance with
§§ 265.221(a)(3)(i). 265.254(b)(5)(i), or
265.301(a)(5)(i);
(iii) Provide descriptions of the
following inspection activities:
(A) Observations and measurements
to ensure that the pipes are placed at
locations and in configurations specified
in the design;
(B) Observations and tests to ensure
that pipe grades are as specified in the
design;
(C) Observations and tests to ensure
that all pipes are joined together as
specified in the design;
(D) Observations to ensure that the
placement of any filter materials around
the pipe meet the specifications in the
design;
(E) Observations and tests to ensure
that backfilling and compaction are
completed as specified in the design and
that, in the process, the pipe network is
not damaged;
(F) Observations and tests to ensure
that the drainage layer material is of the
particle size as specified in the design
and free from excessive amounts of
fines or organic materials;
(G) Observations and tests to ensure
that the thickness and coverage of the
drainage layer complies with the design
specifications;
(H) Survey of the drainage layer to
ensure that specified grades are
obtained as specified in the design;
(I) Observation of construction
procedures to prevent the transport of
fines by runoff into the leachate
collection system;
(J) Observations to ensure that all
synthetic drainage layer or geotextile
materials are placed according to the
placement plan;
(K) Measurements to ensure that the
overlap of all synthetic drainage layer or
geotextile material as specified in the
design is achieved;
(L) Observation* to ensure that the
synthetic drainage layer or geotextile
materials are free from excessive
wrinkles and folds;
(M) Observations to ensure that
weather conditions are appropriate for
placement of the synthetic drainage
layer or geotextile materials and that
exposure to rain, wind, and direct
sunlight during and after installation is
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2O293
in compliance with the manufacturer's
recommendations;
(N) Inspection of filter layer
placement to ensure that the design
specifications, including material
specifications, placement procedures,
and thickness are met; and
(O) Inspection and testing of the
sump, leachate removal and detection
equipment, and any other associated
equipment or structures to ensure that
the design specifications, including
material and equipment specifications,
coating specifications, and mechanical
and electrical equipment installation
specifications, are met.
(6) For final cover, the construction
quality assurance program must:
(i) Ensure all layers of the cover are
inspected for uniformity, imperfections,
and damage;
(ii) Ensure that the materials for each
layer are as specified in the design
material specifications;
(iii) Ensure each layer of the final
cover is installed or constructed to meet
the requirements specified in the design;
and
(iv) Provide descriptions of the
following inspection activities. Some of
these activities may not be appropriate
for all land treatment unit covers;
inspection activities for land treatment
unit covers must also be based on the
requirements of § 265.280.
(A) Procedures and methods
consistent with those under
§ 265.20(b)(3) for observing and testing
the installation of any low-permeability
compacted soil layer to ensure that the
design specifications are met;
(B) Procedures and methods
consistent with those under
S 265.20(b)(4) for observing and testing
the installation of any flexible
membrane layer to ensure that the
design specifications are met; and
(C) Procedures and methods for
observing and testing other layers of the
final cover (e.g., drainage, and
vegetative layer) to ensure that the
design specifications are met. These
activities must include inspection of the
completed cover slope, vegetation, and
drainage conduits to ensure that they
meet the specified design.
(c) The owner or operator will be
exempted from any part of the
requirements of paragraph (b) of this
section if the Regional Administrator
finds, based on a demonstration by the
owner or operator, that alternative
inspection practices, observations, or
tests will ensure that the completed
component meets or exceeds all design
criteria, plans, and specifications.
(d) The owner or operator may
request that the Regional Administrator
amend his construction quality
assurance plan at any time before and
during the active life of the facility.
(1) The CQA officer may make
changes to the approved CQA plan
under § 265.20(a) without seeking and
receiving prior approval from the
Regional Administrator. Changes that
do not require Regional Administrator
approval are limited to instances where
the CQA officer certifies that the revised
CQA plan will provide equivalent or
better certainty that the constructed
component meets the design-
specifications. Within seven days of
modifying the CQA plan approved under
§ 285.20(a), the owner or operator must
amend the operating record to include
the revised CQA plan and certification.
(2) Changes other than those specified
in paragraph (d)(l) of this section, must
be submitted to the Regional
Administrator and approved by the
Regional Administrator prior to
construction. The owner or operator
must submit a copy of the amended
CQA plan to the Regional Administrator
for approval prior to starting
construction relating to the amended
area of the CQA plan. The Regional
Administrator will approve, disapprove
or modify this amended plan in
accordance with the procedures
discussed under paragraph [a) of this
section.
(e) The owner or operator must notify
the Regional Administrator at least 180
days prior to the date he expects to
begin construction of the final cover.
The notification must include the
following:
(1) Schedule of major activities; and
(2) Supplemental information required
in the construction quality assurance
plan that was not previously included.
(f} Upon completion of construction of
facility components listed under
§ 265.19(b), the owner or operator must
submit a construction quality assurance
report in writing to the Regional
Administrator demonstrating
compliance with the construction
quality assurance plan. The report must
be certified by the construction quality
assurance officer before waste is
received, except in the case of
construction of the final cover. For the
final cover, the report must be submitted
to the Regional Administrator within 60
days after cover construction is
completed. Submission of the report
may be phased, if approved by the
Regional Administrator during approval
of the construction quality assurance
plan to allow for the phased
construction of a unit The construction
quality assurance report mast include at
least the following:
(1) Summaries of all construction and
material inspection activities to include:
(i) Observations;
(ii) Test data sheets;
(iii) Problem reports;
(iv) Repair activities;
(v) Deviations from the design and
material specifications;
(vi) Design engineer acceptance
reports (for errors, inconsistencies, and
other problems);
(vii) As built drawings; and
(viii) Block evaluation reports for
large projects.
(2) Summary discussion for each
applicable component under § 265.19(b)
that describes the major construction
quality assurance inspection activities,
detailing how the results demonstrate
that the constructed unit meets or
exceeds all design criteria, plans, and
specifications. Summary tables, charts,
and graphs must be used, where
appropriate, to document
implementation of the construction
quality assurance program.
(3) Certification by die qualified
registered professional engineer in
charge of the construction quality
. assurance program- that the report
accurately represents the activities and
findings of the completed construction
quality assurance program and that the
program was implemented in
accordance with all requirements of the
approved construction quality assurance
plan.
4. Section 265.73 is amended by
revising paragraph (b)(6) to read as
follows:
§265.73 Operating record.
(6) Monitoring, testing, or analytical
data where required by § i 265.90,
26554. 265.228, 265.260, 265.276, 285.278,
265.280{d)(l), 265.303. 285.347, and
265.377; and,
*****
5. Section 265.117 is amended by
revising paragraph (a)(l)(ii) to read as
follows:
§265.117 Post-doom car* and UM of
property.
(aHD
(ii) Maintenance of monitoring, waste
containment, and leak detection systems
in accordance with the requirements of
Subparts F, K. L, M, and N of this Part.
*****
6. Section 265.118 is amended by
revising paragraphs (cKl) and (c)(2)(ii)
to read as follows:
§265.11* Post-closur* plan; aiMndiMfrt
of plan. ,
*****
(cj* * *
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Federal Register / Vol. 52, No. 103 / Friday, May 29. 1987 / Proposed Rules
(1) A description of the planned
monitoring and leak detection activities
and frequencies at which they will be
performed to comply with Subparts F, K.
L, M. and N of this Part during the post-
closure care period; and
(2) • « •
(ii) The function of the monitoring,
leachate collection, and leak detection
equipment in accordance with the
requirements of Subparts F. K, L, M. and
N of this Part; and
« • • * *
7. Section 265.221 is amended by
revising the section heading and by
adding new paragraphs (f) through (j) to
read as follows:
§ 265.221 Design and operating
requirements.
• • * * •
(f) The owner or operator of any unit
for which construction commences after
the date of promulgation of this rule
must design, construct, operate, and
maintain a leak detection system
capable of detecting leaks of hazardous
constituents at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period. Any
liquid, waste, or waste constituent
migrating into the leak detection system
is assumed to originate from liquids
leaking through the top liner of the unit
unless the Regional Administrator finds,
based on a demonstration by the owner
or operator under § 265.222(h), that such
liquid, waste, or waste constituent
originated from another source.
(g) The leak detection system required
under paragraph (f] of this section shall
be part of the leachate collection system
between the liners described under
paragraph (a)(3) of this section. The
leachate collection system between the
liners shall, in addition to meeting the
requirements of paragraph (a](3) of this
section, meet the following requirements
for leak detection:
(1) The minimum bottom slope must
be 2 percent, and drainage layer
material must have the following
hydraulic characteristics:
(!) For granular materials, a minimum
hydraulic conductivity of 1 cm/sec and
a minimum layer thickness of 12 inches:
or
(ii) For synthetic drainage layer
materials, a hydraulic transmissivity of 5
x 10~4 ma/sec or greater.
(2) Be capable of detecting a leak of
no more than 1 gallon per acre per day
in the top liner (not including liquids
absorbed by the leachate collection
system); also, be capable of detecting
leakage in excess of 1 gallon per acre
per day within 1 day after the leak
occurs (not including liquids absorbed
by the leachate collecting system or
bottom liner);
(3) Collect and remove liquids rapidly
to minimize the head on the bottom
liner; and
(4) Include a sump of appropriate size
to efficiently collect liquids and prevent
liquids from backing up into the
drainage layer. Each unit must have its
own sump. The design of the sump and
removal system must provide a method
for measuring and recording the liquid
volume present in the sump and liquids
removed so that the leachate flow rate
can be determined on a daily basis.
(h) In lieu of the requirements of
paragraph (g) of this section, the
Regional Administrator may approve an
alternative leak detection system if:
(1) The Regional Administrator finds,
based on a demonstration by the owner
or operator, that there is no potential for
migration of hazardous constituents
from a unit to ground water or surface
water during the active life and post-
closure care period of the unit; or
(2) The unit complies with the
requirements of paragraphs (c) or (d) of
this section; or
(3) The Regional Administrator finds,
based on a demonstration by the owner
or operator, that an alternative leak
detection system or technology will
meet the requirements of paragraph (f)
of this section. In deciding whether to
grant an alternative leak detection
system or technology, the Regional
Administrator will consider:
(i) The durability and effectiveness of
the proposed system or technology;
(ii) The nature and quantity of the
wastes; and
(iii) The ability of the system or
technology to detect leaks and, in
combination with response actions to be
taken in compliance with § 265.222,
prevent migration of waste out of the
unit during the active life and post-
closure care period so that ground water
and surface water are not contaminated.
(i) The owner or operator of any unit
that is required by paragraph (f) of this
section to have a leak detection system
and that is not located completely above
the seasonal high water table must
demonstrate that the operation of the
leak detection system will not be
adversely affected by the presence of
ground water.
(j) The owner or operator must
establish a top liner action leakage rate
during the design of the unit for leak
detection systems under paragraph (g)
of this section. The action leakage rate
is determined by:
(1) Using a standard value of (EPA is
proposing to select a final value from the
range of 5-20 gallons/acre/day); or
(2) A review by the Regional
Administrator of an owner or operator
demonstration, and a finding by the
Regional Administrator, that a site-
specific top liner action leakage rate is
appropriate for initiating review of the
actual leakage rate to determine if a
response action is necessary. The site-
specific top liner action leakage rate
demonstration must be based on
allowing only very small isolated
leakage through the top liner that does
not affect the overall performance of the
top liner. In deciding whether to grant a
site-specific action leakage rate, the
Regional Administrator will consider at
least the following factors:
(i) The design, construction, and
operation of the top liner;
(ii) The attenuative capacity and
thickness of any soil component of the
top liner; and
(iii) All other factors that would
influence the potential for leachate to
migrate through the top liner.
The Regional Administrator will
approve, modify, or disapprove the
demonstration of ah alternative site-
specific action leakage rate within 60
days of its receipt If the Regional
Administrator does not approve the
demonstration, the owner or operator
may modify the demonstration or submit
a new demonstration for approval.
8. Sections 265.221 and 265.222 are
amended by redesignating paragraphs
(a) and (b) of § 265.222 as paragraphs (k)
and (1) of § 265.221, respectively.
9. Section 265.222 is revised to read as
follows:
§265.222 Response actions.
(a) Prior to receipt of waste at the
unit, the owner or operator must have a
response action plan approved by the
Regional Administrator that sets forth
the actions to be taken immediately
following a rinding of rapid and
extremely large volumes of leakage
between the liners hi accordance with
the requirements under paragraph (b) of
this section. A rapid and extremely large
leak is the maximum design leakage rate
that the leachate detection, collection,
and removal system can remove under
gravity flow conditions without the fluid
head on the bottom liner exceeding 1
foot in granular leak detection systems
and without the fluid head exceeding
the thickness of synthetic leak detection
systems. The owner or operator must
use an adequate safety margin in
determining the rapid and extremely
large leak to allow for uncertainties in
the design, construction, and operation
of the leachate detection, collection, and
removal system (e.g., the owner or
operator must consider decreases in the
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20295
flovv capacity of the system in time
resulting from siltation, creep of
synthetic components of the system.
etc.). The response action plan must be
submitted to the Regional Administrator
at least 120 days prior to receipt of
waste at the unit.
(b) The response action plan for rapid
and extremely large volumes of leakage
between the liner must, at a minimum,
include the following information:
(1) A general description of the
operation of the unit including the
expected active life of the unit and
whether or not at closure wastes will be
decontaminated or removed from the
unit or left in place;
(2) A description of the hazardous
constituents contained in the unit;
(3) A description of the range of
events that may potentially cause rapid
and extremely large volumes of leakage
into the space between the liners;
(4) A discussion of important factors
that can affect leakage into the leachate
collection and removal system between
the liners (e.g., amount and frequency of
precipitation, and amount of liquids in
the unit);
(5) A description of major mechanisms
that will prevent migration of hazardous
constituents out of the unit (e.g., the
condition of the liners and leachate
collection system between the liners);
(6) A detailed assessment describing
the effectiveness and feasibility of each
of the following potential immediate
interim responses for preventing
hazardous constituent migration out of
the unit by decreasing the volume of
leakage into the leak detection system:
(i) The owner or operator limits or
terminates receipt of waste;
(ii) The owner or operator provides
expeditious repair of the leak(s); or
(iii) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large.
(7) The plan must also include the
response the owner or operator will
undertake after determining the
concentration of hazardous constituents
in the liquids in the sump of the leak
detection system in accordance with the
requirements under paragraph (c)(3) of
this section.
(i) If any hazardous constituent
concentrations in the leachate exceed
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for preventing
hazardous constituent migration out of
the unit:
(A) The owner or operator terminates
receipt of waste and closes the unit;
(3) The owner or operator provides
expeditious repair of the leak(s); or
(C) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large. If as a result of these operational
changes the leakage is still above the
action leakage rate, the owner or
operator must comply with the
requirements set forth in paragraph (e)
of this section; or
(ii) If all hazardous constituent
concentrations in the leachate are below
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for minimizing the
head on the bottom liner:
(A) The owner or operator provides
expeditious repair of the leak(s); or
(B) The owner or operator institutes
operational changes at the unit.
(8) The response action plan must
address a range of rapid and extremely
large volumes of leakage appropriate for
the unit with correlating recommended
responses and indicate why other
response actions were not chosen. Each
response presented must be based on a
demonstration incorporating the factors
set forth in paragraphs (b) (1) through (7)
of this section. Other factors that would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate out of the unit may also be
considered in the demonstration.
(c)(l) The Regional Administrator will
review and approve the response action
plan for rapid and extremely large leaks
if he determines that such plan prevents,
to the extent technically feasible with
current technology, hazardous
constituent migration out of the unit in
excess of EPA-approved health based
standards for ground-water protection.
If the plan does not prevent hazardous
constitutent migration out of the unit in
levels exceeding the ground-water
protection standards, the Regional
Administrator shall disapprove such
plan.
(2) In making a determination under
paragraph (c)(l) of this section, the
Regional Administrator shall consider,
but not be limited to considering, the
following factors:
(i) The type and amount of hazardous
constituents in the leachate between the
liners;
(ii) The mobility of hazardous
constituents in the leachate;
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementing action of the
response action plan;
(iv) Condition of the liners and
leachate collection and removal system
(e.g., CQA documentation review or
review of design for deficiency);
(v) Design of the double liner system,
including design features that provide
further protection beyond those required
under Section 265.221;
(vi) Future planned activities,
including remaining active life time
period, and closure and post-closure
care activities; and
(vii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix VIII of Part 261 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(4) The Regional Administrator, as
part of his review of the plan (initial or
modified), will provide the public,
through a notice in local newspapers,
the opportunity to submit written
comments on the response action plan
and request modifications of the plan
within 30 days of the date of the notice.
He will also, in response to a request or
at his own discretion, hold a public
hearing whenever such a hearing might
clarify one or more issues concerning
the plan. The Regional Administrator
will give public notice of the hearing at
least 30 days before it occurs. (Public
notice of the hearing may be given at the
same time as notice of the opportunity
for the public to submit written
comments, and the two notices may be
combined.) The Regional Administrator
will approve, modify, or disapprove the
response action plan within 90 days of
its receipt. If the Regional Administrator
disapproves the plan he shall provide
the owner or operator a detailed written
statement of reasons for disapproval.
The owner or operator shall modify the
plan or submit a new response action
plan within 30 days after receiving such
written statement. The Regional
Administrator will approve or modify
the plan within 60 days.
(d) When there is a rapid and
extremely large volume of leakage
between the liners the owner or
operator must:
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 1987 / Proposed Rules
(1) Notify the Regional Administrator
of this occurrence in writing within
seven days of the rapid and extremely
large leakage. The notification must
preliminarily identify the liquid volumes
that have been detected, collected, and
removed;
(2) Collect and remove accumulated
liquids;
(3) Immediately implement the
response action plan; and
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (c)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and at other subsequent time periods as
specified by the Regional Administrator.
The report must describe the
effectiveness of the response action in
preventing hazardous constituent
migration out of the unit in excess of the
levels above EPA-approved health
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (c](2] of this section and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous
constitutent migration out of the unit If
the Regional Administrator determines
that the existing response action is not
preventing, to the extent tecl_-ucally
feasible with current technology
hazardous constituent migration out of
the unit, the Regional Administrator will
so inform the owner or operator. The
owner or operator must then either:
(i) Implement alternative responses
for the rate of leakage, if approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan if
the approved response action plan does
not contain an alternative response. The
owner or operator must submit a
modification plan to the Regional
Administrator within 60 days. At a
minimum such modification must
address information set forth in
paragraph (b) of this section as well as
the rate of leakage, including the
likelihood of any increase, and the cause
of the leakage (eg., liner incompatibility
or an accident). The plan will be
processed in accordance with the
procedure under paragraph (c)(4) of this
section.
(e) Leaks that are less than rapid and
extremely large. (1) The owner or
operator is required to prepare and
submit to the Regional Administrator a
response action plan for leaks that
exceed the action leakage rate for the
top liner but are less than rapid and
extremely large. In order to satisfy this
requirement, the owner or operator may
either
(i] Submit a response action plan with
the permit application identifying
actions to be taken when lower levels of
leakage exceed the action leakage rate;
or
(ii) Submit to the Regional
Administrator a request to amend the
response action plan within 90 days
from the date liquids first exceed the
action leakage rate.
(2) For leakage that exceeds the action
leakage rate, the response action plan
must, at a minimum, include the
information set forth in paragraph (b) (1)
to (5) of this section. The owner or
operator must also include a detailed
assessment describing the effectiveness
and feasibility of each of die following
responses for preventing hazardous
constituent migration out of the unit in
excess of health-based standards:
(i) The owner or operator terminates
receipt of waste and closes the unit;
(ii) The owner or operator institutes
operational changes at the unit that will
reduce leakage between the liners to
prevent hazardous constituents
migration out of the unit;
(iii) The owner or operator provides
expeditious repair of the leak(s);
(iv) The owner or operator continues
to remove and treat the leakage with
increased ground-water monitoring
activities; or
(v) The owner or operator maintains
current operating procedures;
(3) The response action plan must
recommend a specific response option
for leakage above (he action leakage
rate for the unit and indicate why other
responses actions were not chosen. The
response action plan may address a
range of leakage with varying responses.
Other factors that would influence the
quality and mobility of the leachate
produced and the potential for it to
migrate out of the unit may also be '
considered in the demonstration.
(f)(l) The Regional Administrator will
review and approve the response action
plan for leakage less than rapid and
extremely large if he determines that
such plan prevents, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
EPA-approved health based standards
for ground-water protection. If the plan
does not prevent hazardous constitutent
migration out of the unit in levels
exceeding the ground-water protection
standards, the Regional Administrator
shall disapprove such plan.
(2) In making a determination under
paragraph (0(1) of this section, the
Regional Administrator shall consider,
but not be limited to considering, the
following factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners or actual type and amount if the
action leakage rate is exceeded;
(ii) The mobility and migration
potential of hazardous constituents in
the leachate;
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan;
(iv) The rate of leakage,, if the
response action plan is submitted after
the action leakage rate is exceeded,
including the likelihood of any increase.
and the cause of the leakage (e.g., liner
incompatibility, accident, or minor leak);
(v) Condition of the liners and
leachate collection and removal system
(e.g., CQA documentation review or
review of design for deficiency) or
review of the unit operating record
concerning accidents that have
occurred):
(vi) Design of the double liner system,
including design features that provide
further protection beyond those required
under i 265.221;
(vii) Future planned activities.
including remaining active life time
period, and closure and post-dosure
care activities;
(viii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting. '
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix VTII of Part 261 of this
chapter. Specifically, the Regional
Administrator will raqvire the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents am preoent and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(4) The Regional Administrator, as
part of his review of me plan (initial or
modified}, will provide die public,
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1987 / Proposed Rules
through a notice in local newspapers,
the opportunity to submit written
comments on the response action plan
and request modifications of the plan
within 30 days of the date of the notice.
He will also, in response to a request or
at his own discretion, hold a public
hearing whenever such a hearing might
clarify one or more issues concerning
the plan. The Regional Administrator
will give public notice of the hearing at
least 30 days before it occurs. (Public
notice of the hearing may be given at the
same time as notice of the opportunity
for the public to submit written
comments, and the two notices may be
combined.) The Regional Administrator
will approve, modify, or disapprove the
response action plan within 90 days of
its receipt. If the Regional Administrator
disapproves the plan he shall provide
the owner or operator a detailed written
statement of reasons for disapproval.
The owner or operator shall modify the
plan or submit a new response action
plan within 30 days after receiving such
written statement. The Regional
Administrator will approve or modify
the plan within 60 days.
(g) If liquids leaking into the leak
detection system specified under
§ 265.221(g) exceed the action leakage
rate for the top liner but are less than
rapid and extremely large, the owner or
operator must:
HI) Notify the Regional Administrator
of this occurrence in writing within
seven days of the leakage exceeding the
action leakage rate. The notification
must preliminarily identify the liquid
volumes that have been detected,
collected, and removed;
(2) Collect and remove accumulated
liquids; and
(3) Implement the plan if it was
previously submitted with the plan
pursuant to paragraph (e)(l)(i) of this
section, or submit an amended response
action plan pursuant to paragraph
(e)(l)(ii) of this section.
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (f)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time. If the owner or operator
determines that the leachate exceeds
health-based standards he must
implement any response action
approved in the plan.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and annually thereafter. The report must
20297
describe the effectiveness of the
response action in preventing, to the
extent technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
levels above EPA-approved health
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (f)(2) of this section and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous
constitutent migration out of the unit. If
the Regional Administrator determines
that the existing response action is not
preventing, to the extent technically
feasible with current technology,
hazardous constituent migration out of
the unit, the Regional Administrator will
so inform the owner or operator. The
owner or operator must then'either.
(i) Implement alternative responses
for the rate of leakage, if approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan if
the approved response action plan does
not contain an alternative response.
The owner or operator must submit a
modification plan to the Regional
Administrator within 60 days. At a
minimum such modification must
address information set forth in
paragraph (b) of this section as well as
the rate of leakage, including the
likelihood of any increase, and the cause
of the leakage (e.g., liner incompatibility
or an accident). The plan will be
processed in accordance with the
procedure under paragraph (c)(4) of this
section.
(h) If the owner or operator
determines that the top liner action
leakage rate is being exceeded, he may
demonstrate for leakage less than rapid
and extremely large that the liquid
resulted from an error in sampling,
analysis, or evaluation, precipitation
during construction, or a source other
than leakage through the top liner.
While the owner or operator may make
a demonstration under this paragraph in
addition to submitting an application
under paragraph (e) of this section, he is
not relieved of the requirement to
submit an amended plan or to
implement the response unless the
demonstration made under this
paragraph successfully shows that the
liquid resulted from a source other than
top liner leakage, precipitation during
construction, or 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 as soon as practicable, that he
intends to make a demonstration under
this paragraph;
(2) Within 90 days of notifying the
Regional Administrator under paragraph
(h)(l) of this section, submit a report to
the Regional Administrator that
demonstrates that the liquid resulted
from a source other than top liner
leakage or that the apparent
noncompliance with the standards
resulted from precipitation during
construction, or error in sampling,
analysis, or evaluation. The Regional
Administrator shall review the
demonstration and notify the applicant
as to whether or not such a
determination is successful. The
applicant has 45 days to comment on
such a determination. The Regional
Administrator shall respond to those
comments and make a final decision on
the applicant's demonstration.
(3) If the Regional Administrator
approves the demonstration in
paragraph (h)(2) of this section, then the
owner or operator must submit an
amended plan to the Regional
Administrator to make any appropriate
changes to the response action plan for
the unit within 90 days of the Regional
Administrator's determination under
paragraph (h)(2) of this section.
(i) Within 45 days of detecting a
significant change in the leakage rate,
the owner or operator must submit to
the Regional Administrator a report on
the leakage that includes the following
information:
(1) An assessment of the problem
causing the leak that includes a profile
of liquid quantity collected and removed
versus time, and characterization of
changes in the rate of top liner leakage;
(2) A description of any change in the
response to be implemented as
approved in the response action plan;
(3) A schedule for implementation;
and
(4) Other information that the owner
or operator deems appropriate to fully
describe the response that will be
implemented.
10. New § 265.224 is added to Subpart
k to read as follows:
$265.224 Construct*]
•tty assurance.
Effective 12 months after
promulgation of this rule, the owner or
operator of each new surface
impoundment unit or component
constructed at a surface impoundment
and listed under 9 265.19(b) must
conduct a construction quality
assurance program in compliance with
§§265.19 and 265.20.
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11. Section 265.226 is amended by
revising the section heading and adding
new paragraphs (b) and (c) to read as
follows:
§265.226 Monitoring and Inspection.
« * • < «
(b) An owner or operator required to
have a leak detection system under this
subpart must:
(1) Monitor for and record on a daily
basis the presence of liquids in the leak
detection system removal sump daily
during the active life (including the
closure period) and at least weekly
during the post-closure period (if
applicable);
(2) Analyze the daily monitoring data
during the active life under paragraph
(b)(l) of this section on a weekly basis
and the weekly monitoring data during
the post-closure period under paragraph
(b)(l) of this section on a quarterly basis
to determine if the action leakage rate
under paragraph (j) (1) or (2) of § 265.221
is exceeded under the conditions of
paragraphs (b)(2) (i), (il), or (iii) of this
section:
(i) The daily monitoring data averaged
over one month exceed the action
leakage rate during the active life or the
weekly monitoring data averaged over
three months exceeds the action leakage
rate during the post-closure period; or
(ii) The daily rate for any one-day
=1 period during a week exceeds 50 gallons
j per acre per day during the active life or
;J the weekly rale for any one-week period
^ during a quarter exceeds 350 gallons per
• acre per week during the post-closure
,| period; or
; (iii) In lieu of the requirements of
paragraphs (b)(2) (i) and (ii) of this
section, the Regional Administrator may
specify in the permit an alternative
method for determining if the action
leakage rate under paragraph (j) (1) or
(2) of § 265.221 is exceeded.
(3) Establish a monitoring and
inspection program that will allow the
determination of the following
throughout the active life and post-
closure care period:
(i) The rate of leakage into the leak
detection system sump, and the removal
rate;
v (ii) The deterioration, malfunction, or
improper operation of the leak detection
system;
(iii) The effectiveness of additional
controls implemented aa part of a
response action plan when the action
leakage rate of the top liner is exceeded;
and
(iv) The effectiveness of the bottom
liner and leachate detection, collection.
and removal system to control leakage
below the action leakage rate.
(c) The owner or operator must record
all inspection information required in
paragraph (b) of this section in the
inspection log required under § 265.15 of
this part The recorded information must
be in sufficient detail to demonstrate
that the leak detection requirements of
§ § 265.221 and 265.222 are being
complied with.
12. Section 265.254 is revised to read
as follows:
§ 265.254 Design and operating
requirements.
(a) With respect to waste received
from May 8,1985, until the effective date
of this rule, the owner or operator of
each new waste pile, each new waste
pile at an existing facility, each
replacement of an existing waste pile
unit, and each lateral expansion of a
was^e pile unit is subject to the
requirements for liners and leachate
collection systems or equivalent
protection provided in § 264.251 (a) and
(b) of this chapter.
(b) With respect to waste received
after the effective date of this rule, the
owner or operator of each new waste
pile, each new waste pile unit at an
existing facility, each replacement of an
existing waste pile unit, and each lateral
expansion of a waste pile unit must
install two or more liners and a leachate
collection system above and between
such liners. The liners and the leachate
collection systems must protect human
health and the environment. At a
minimum, the liners and leachate
collection systems must meet the
following requirements:
(1) The liners must include:
(i) A top liner designed, operated, and
constructed of materials to prevent the
migration of any hazardous constituent
into such liner during the active life and
post-closure care period, and a bottom
liner designed, operated, and
constructed to prevent the migration of
any constituent through such liner
during such period. The bottom liner
must be constructed of at least a 3-foot-
thick layer of compacted clay or other
compacted soil material with a
hydraulic conductivity of no more than 1
x 10~' ran/sec; or
(ii) A top liner designed, operated, and
constructed of materials to prevent the
migration of any hazardous constituent
into such liner during the active life and
post-closure care period, and a bottom
liner consisting of two components. The
upper component of the bottom liner
must be designed, operated, and
constructed to prevent the migration of
any hazardous constituent into this
component during the active life and
post-closure care period. The lower
component of the bottom liner must be
designed, operated, and constructed to
minimize the migration of any
hazardous constituent through the upper
component if a breach in the upper
component were to occur prior to the
end of the post-closure care period. The
lower component must be constructed of
compacted soil material with a
hydraulic conductivity of no more than 1
xlO~7 cm/sec.
(2) The liners 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 materials capable of
providing support to the liners and
resistance to pressure gradients above
and below the liners to prevent failure
of the liners due to settlement.
compression, or uplift; and
(iii) Installed to cover all surrounding
earth likely to be in contact with the
waste or leachate.
(3) The leachate collection system
immediately above the top liner must be
designed, constructed, maintained, and
operated to collect and remove leachate'
from the waste pile during the active life
and post-closure care period. The
Regional Administrator will specify
design and operating conditions in the
permit to ensure that the leachate depth
over the top liner does not exceed 30 cm
(1 foot).
(4) The leachate collection system
between the liners must be designed.
constructed, maintained, and operated
to detect, collect, aad remove liquids
that leak through any area of the top
liner during the active life and post-
closure care period
(5) The leachate collection systems
must be:
(i) Constructed of materials that are
chemically resistant to the waste
managed in the waste pile and the
leachate expected to be generated and
of sufficient strength and thickness to
prevent collapse under the pressures
exerted by overlying wastes, waste
cover materials, and any equipment
used at die waste pile; and
(ii) Designed aad operated to function
without clogging during the active life
and post-closure care period.
(c) Paragraph (b) of this section will
not apply if the owner or operator
demonstrates to the Regional
Administrator, and the Regional
Administrator finds for such waste pile,
that alternative design end operating
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1O299
practices, together with location
characteristics, will prevent the
migration of any hazardous constituent
into the ground water or surface water
at least as effectively as such liners and
leachate collection systems.
(d) The double liner requirement set
forth in paragraph (b) of this section
may be waived by the Regional
Administrator for any monofill. if:
(1) the monofill contains only
hazardous wastes from foundry furnace
emission controls or metal casting
molding sand, and such wastes do not
contain constituents which would
render the wastes hazardous for reasons
other than the EP toxicity characteristics
in § 261.24 of this chapter; and
(2)(i)(A) The monofill has at least one
liner for which there is no evidence that
such liner is leaking. For the purposes of
this paragraph, the term "liner" means a
liner designed, constructed, installed,
and operated to prevent hazardous
waste from passing into the liner at any
time during the active life of the facility,
or a liner designed, constructed,
installed, and operated to prevent
hazardous waste from migrating beyond
the liner to adjacent subsurface soil,
ground water, or surface water at any
time during the active life of the facility.
(B) The monofill is located more than
one-quarter mile from an underground
source of drinking water (as that term is
defined in 5144.3 of this chapter); and
(C) The monofill is in compliance with
generally applicable ground water
monitoring requirements for facilities
with permits under RCRA § 3005(c); or
(ii) The owner or operator
demonstrates that the monofill is
located, designed, and operated so as to
assure that there will be no migration of
any hazardous constituent into ground
water or surface water at any future
time.
(e) The owner or operator of any unit
for which construction commences after
the date of promulgation of this rule
must design, construct, operate, and
maintain a leak detection system
capable of detecting leaks of hazardous
constituents at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period. Any -
liquid, waste, or waste constituent
migrating into the leak detection system
is assumed to originate from liquids
leaking through the top liner of the unit
unless the Regional Administrator finds,
based on a demonstration by the owner
or operator under { 285.255(c), that such
liquid, waste, or waste constituent
originated from another source.
(I) The leak detection system required
under paragraph (e) of this section shall
be part of the leachate collection system
between the liners described under
paragraphs (b)(4) and (b)(5) of this
section. The leachate collection system
between the liners shall, in addition to
meeting the requirements of paragraphs
(b)(4) and (b)(5) of this section, meet the
following requirements for leak
detection:
(1) The minimum bottom slope must
be 2 percent and the drainage layer
material must have the following
hydraulic characteristics:
(i) For granular materials, a minimum
hydraulic conductivity of 1 cm/sec and
a minimum layer thickness of 12 inches;
or
(ii) For synthetic drainage layer
materials, a hydraulic transmissivity of 5
x 10~4ma/sec or greater.
(2) Be capable of detecting a leak of
no more than 1 gallon per acre per day
in the top liner (not including liquids
absorbed by the leachate collection
system); also, be capable of detecting
leakage in excess of 1 gallon per acre
per day within 1 day after the leak
occurs (not including liquids absorbed
by the leachate collection system or
bottom liner);
(3) Collect and remove liquids rapidly
to minimize the head on the bottom
linen and
(4) Include a sump of appropriate size
to efficiently collect liquids and prevent
liquids from backing up into the
drainage layer. Each unit must have its
own sump. The design of the sump and
removal system must provide a method
for measuring and recording the liquid
volume present in the sump and liquids
removed so that the leachate flow rate
can be determined on a daily basis.
(g) In lieu of the requirements of
paragraph (f) of this section, the
Regional Administrator may approve an
alternative leak detection system if:
(1) The Regional Administrator finds,
based on a demonstration by the owner
or operator, that there is no potential for
migration of hazardous constituents
from a unit to ground water or surface
water during the active life and post-
closure care period of the unit; or
(2) The unit complies with the
requirements of paragraphs (c) or (d) of
this section; or
(3) The Regional Administrator finds,
based on a demonstration by the owner
or operator, that an alternative leak
detection system or technology will
meet the requirements of paragraph (e)
of this section. In deciding whether to
grant an alternative leak detection
system or technology, the Regional
Administrator will consider:
(i) The durability and effectiveness of
the proposed system or technology;
(ii) The nature mad quantity of the
wastes; and
(iii) The ability of the system or
technology to detect leaks and, in
combination with response actions to be
taken in compliance with 5 265.255,
prevent migration of waste out of the
unit during the active life and post-
closure care period so that ground water
and surface water are not contaminated.
(h) The owner or operator of any unit
that is required by paragraph (e) of this
section to have a leak detection system
and that is not located completely above
the seasonal high water table must
demonstrate that the operation of the
leak detection system will not be
adversely affected by the presence of
ground water.
(i) The owner or operator must
establish a top liner action leakage rate
during the design of the unit for leak
detection systems under paragraph (f) of
this section. The action leakage rate is
determined by:
(1) Using a standard value of (EPA is
proposing to select a final value from the
range of 5-20 gallons/acre/day); or
(2) A review by the Regional
Administrator of an owner or operator
demonstration, and a rinding by the
Regional Administrator, that a site-
specific top liner action leakage rate is
appropriate for initiating review of the
actual leakage rate to determine if a
response action is necessary. The site-
specific top liner action leakage rate
demonstration must be based on
allowing only very small isolated
leakage through the top liner that does
not affect the overall performance of the
top liner. In deciding whether to grant a
site-specific action leakage rate, the
Regional Administrator will consider at
least the following factors:
(i) The fk^'g", construction, and
operation of the top liner and the
leachate collection and removal system
above the top linen
(ii) The attennative capacity and
thickness of any soil component of die
top linen and
(iii) AH other factorm that would
influence the potential for leachate to
migrate through the top liner.
The Regional Administrator will
approve, modify, or disapprove the
demonstration of an alternative site-
specific action leakage rate within 60
days of its receipt ff the Regional
Administrator does not approve the
demonstration, the owner or operator
may modify the demonstration or submit
a new demonstration for approval
14. New f 285.255 fa added to read as
follows: •
§26&2SS
(a) Prior to receipt of waste at the
unit the owner or operator must have a
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response action plan approved by the
Regional Administrator that sets forth
the actions to be taken immediately
following a finding of rapid and
extremely large volumes of leakage
between the liners in accordance with
the requirements under paragraph (b) of
this section. A rapid and extremely large
leak is the maximum design leakage rate
that the leachate detection, collection,
and removal system can remove under
gravity flow conditions without the fluid
head on the bottom liner exceeding 1
foot in granular leak detection systems
and without the fluid head exceeding
the thickness of synthetic leak detection
systems. The owner or operator must
use an adequate safety margin in
determining the rapid and extremely
large leak to allow for uncertainties in
the design, construction, and operation
of the leachate detection, collection, and
removal system (e.g., the owner or
operator must consider decreases in the
flow capacity of the system in time
resulting from siltation, creep of
synthetic components of the system,
etc.) The response action plan must be
submitted to the Regional Administrator
at least 120 days prior to receipt of
waste at the unit.
(b) The response action plan for rapid
and extremely large volumes of leakage
between the liner must, at a minimum,
include the following information:
(1) A general description of the
operation of the unit including the
expected active life of the unit and
whether or not at closure wastes will be
decontaminated or removed from the
unit or left in place;
(2) A description of the hazardous
constituents contained in the unit:
(3) A description of the range of
events that may potentially cause rapid
and extremely large volumes of leakage
into the space between the liners;
(4) A discussion of important factors
that can affect leakage into the leachate
collection and removal system between
the liners (e.g., amount and frequency of
precipitation, and amount of liquids in
the unit);
(5) A description of major mechanisms
that will prevent migration of hazardous
constituents out of the unit (e.g., the
condition of the liners and leachate
collection system between the liners);
(6) A detailed assessment describing
the effectiveness and feasibility of each
of the following potential immediate
interim responses for preventing
hazardous constituent migration out of
the unit by decreasing the volume of
leakage into the leak detection system:
(i) The owner or operator limits or
terminates receipt of waste;
(ii) The owner or operator provides
expeditious repair of the leak(s); or
(iii) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large.
[7] The plan must also include the
response the owner or operator will
undertake after determining the
concentration of hazardous constituents
in the liquids in the sump of the leak
detection system in accordance with the
requirements under paragraph (c)(3) of
this section.
(i) If any hazardous constituent
concentrations in the leachate exceed
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for preventing
hazardous constituent migration out of
the unit:
(A) The owner or operator terminates
receipt of waste and closes the unit;
(B) The owner or operator provides
expeditious repair of the leak(s); or
(C) The owner or operator institutes
operational changes at the unit that will
minimize leakage into the space
between the liners so that the leakage
will be less than rapid and extremely
large. If as a result of these operational
changes the leakage is still above the
action leakage rate, the owner or
operator must comply with the
requirements set forth in paragraph (e)
of this section; or
(ii) If all hazardous constituent
concentrations in the leachate are below
health-based standards, the owner or
operator must assess the effectiveness
and feasibility of each of the following
potential responses for minimizing the
head on the bottom linen
(A) The owner or operator provides
expeditious repair of the leak(s); or
(B) The owner or operator institutes
operational changes at the unit
(8) The response action plan must
address a range of rapid and extremely
large volumes of leakage appropriate for
the unit with correlating recommended
responses and indicate why other
response actions were not chosen. Each
response presented must be based on a
demonstration incorporating the factors
set forth in paragraphs (b) (1) through (7)
of this section. Other factors that would
influence the quality and mobility of the
leachate produced and the potential for
it to migrate out of the unit may also be
considered in the demonstration.
(c)(l) The Regional Administrator will
review and approve the response action
plan for rapid and extremely large leaks
if he determines that such plan prevents,
to the extent technically feasible with
current technology, hazardous
constitutent migration out of the unit in
excess of EPA-approved health based
standards for ground-water protection.
If the plan does not prevent hazardous
constitutent migration out of the unit in
levels exceeding the ground-water
protection standards, the Regional
Administrator shall disapprove such
plan.
(2) In making a determination under
paragraph (c)(l) of this section, the
Regional Administrator shall consider,
but not be limited to considering, the
following factors:
(i) The type and amount of hazardous
constituents in the leachate between the
liners;
(ii) The mobility of hazardous
constituents in the leachate;
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementing action of the
response action plan;
(iv) Condition of the liners and
leachate collection and removal system
(e.g., CQA documentation review or
review of design for deficiency);
(v) Design of the double liner system,
including design features that provide
further protection beyond those required
under S 265.254;
(vi) Future planned activities,
including remaining active life time
period, and closure and post-closure
care activities; and
(vii) Environmental factors, including
amount and frequency of precipitation,
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents id?ntified in
Appendix Vm of Part 26' this
chapter. Specifically, the ional
Administrator will require . .a owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
-(4) The Regional Administrator, as
part of his review of the plan (initial or
modified), will provide the public.
through a notice in local newspapers,
the opportunity to submit written
comments on die response action plan
and request modifications of the plan
within 30 days of the date of the notice.
He will also, in response to a request or
at his own discretion, hold • public
hearing whenever such a hearing might
clarify one or more issues concerning
the plan. The Regional Administrator
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20301
will give public notice of the hearing at
least 30 days before it occurs. (Public
notice of the hearing may be given at the
same time as notice of the opportunity
for the public to submit written
comments, and the two notices may be
combined.) The Regional Administrator
will approve, modify, or disapprove the
response action plan within 90 days of
its receipt. If the Regional Administrator
disapproves the plan he shall provide
the owner or operator a detailed written
statement of reasons for disapproval.
The owner or operator shall modify the
plan or submit a new response action
plan within 30 days after receiving such
written statement. The Regional
Administrator will approve or modify
the plan within 60 days.
(d) When there is a rapid and
extremely large volume of leakage
between the liners the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence in writing within
seven days of the rapid and extremely
large leakage. The notification must
preliminarily identify the liquid volumes
that have been detected, collected, and
removed;
(2) Collect and remove accumulated
liquids;
(3) Immediately implement the
response action plan; and
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (c)(3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and at other subsequent time periods as
specified by the Regional Administrator.
The report must describe the
effectiveness of the response action in
preventing hazardous constituent
migration out of the unit in excess of the
levels above EPA-approved health
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (c){2) of this section and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous
constituent migration out of the unit. If
the Regional Administrator determines
that the existing response action is not
preventing, to the extent technically
feasible with current technology
hazardous constituent migration out of
the unit, the Regional Administrator will
so infornrthe owner or.operator. The
owner or operator must then either:
(i) Implement alternative responses
for the rate of leakage, if the approved
response action plan contains such
alternatives: or
(ii) Amend the response action plan if
the approved response action plan does
not contain an alternative response. The
owner or operator must submit a
modification plan to the Regional
Administrator within 60 days. At a
minimum such modification must
address information set forth in
paragraph (b) of this section as well as
the rate of leakage, including the
likelihood of any increase, and the cause
of the leakage (e.g., liner incompatibility
or an accident). The plan will be
processed in accordance with the
procedure under paragraph (c)(4) of this
section.
(e) Leaks that are less than rapid and
extremely large.
(1) The owner or operator is required
to prepare and submit to the Regional
Administrator a response action plan for
leaks that exceed the action leakage
rate for the top liner but are less than
rapid and extremely large. In order to
satisfy this requirement, the owner or
operator may either
(i) Submit a response action plan with
the permit application identifying
actions to be taken when lower levels of
leakage exceed the action leakage rate;
or
(ii) Submit to the Regional
Administrator a request to amend the
response action plan within 90 days
from the date liquids first exceed the
action leakage rate.
(2) For leakage that exceeds the action
leakage rate, the response action plan
must at a minimum, include the
information set forth in paragraph (b) (1)
to (5) of this section. The owner or
operator must also include a detailed
assessment describing the effectiveness
and feasibility of each of the following
responses for preventing hazardous
constituent migration out of the unit in
excess of health-based standards:
(i) The owner or operator terminates
receipt of waste and closes the unit;
(ii) The owner or operator institutes
operational changes at the unit that will
reduce leakage between the liners to
prevent hazardous constituents
migration out of the unit;
(iii) The owner or operator provides
expeditious repair of the leakfs);
(iv) The owner or operator continues
to remove and treat the leakage with
increased ground-water monitoring
activities; or
(v) The owner or operator maintains
current operating procedures;
(3) The response action plan must
recommend a specific response option
for leakage above the action leakage
rate for the unit and indicate why other
responses actions were not chosen. The
response action plan may address a
range of leakage with varying responses.
Other factors that would influence the
quality and mobility of the leachate
produced and the potential for it to
migrate out of the unit may also be
considered in the demonstration.
(f)(l) The Regional Administrator will
review and approve the response action
plan for leakage less than rapid and
extremely large if he determines that
such plan prevents, to the extent
technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
EPA-approved health based standards
for ground-water protection. If the plan
does not prevent hazardous constituent
migration out of the unit in levels
exceeding the ground-water protection
standards, the Regional Administrator
shall disapprove such plan.
(2) In making a determination under
paragraph (f)(l) of this section, the
Regional Administrator shall consider,
but not be limited to considering, the
following factors:
(i) The type and amount of hazardous
constituents that may be expected to be
present in the leachate between the
liners or actual type and amount if the
action leakage rate is exceeded;
(ii) The mobility and migration
potential of hazardous constituents in
the leachate:
(iii) The degree to which the liquid
head on the bottom liner will be
minimized by implementation of the
response action plan:
(iv) The rate of leakage, if the
response action plan is submitted after
the action leakage rate is exceeded,
including the likelihood of any increase,
and the cause of the leakage (e-g., liner
incompatibility, accident, or minor leak);
(v) Condition of the liners and
leachate collection and removal system
(e.g., CQA documentation review or
review of design for deficiency or
review of the unit operating record
concerning accidents that have
occurred);
(vi) Design of the double liner system,
including design features that provide
further protection beyond those required
under § 265.221;
(vii) Future planned activities,
including remaining active life time
period and closure and post-closure
care activities;
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Federal Register / Vol. 52, No. 103 / Friday, May 29, 198r / Proposed Rules
(viii) Environmental factors, including
amount and frequency of precipitation.
and whether the unit is located in a
highly vulnerable hydrogeological
setting.
(3) The Regional Administrator will
identify in the response action plan
monitoring activities for specific
hazardous constituents identified in
Appendix VIII of Part 261 of this
chapter. Specifically, the Regional
Administrator will require the owner or
operator to test the liquids in the sump
for the leachate detection, collection,
and removal system to determine
whether specified hazardous
constituents are present and their
concentration. The Regional
Administrator may also identify
additional physical and chemical
properties to be tested for.
(4) The Regional Administrator, as
part of his review of the plan (initial or
modified), will provide the public,
through a notice in local newspapers,
the opportunity to submit written
comments on the response action plan
and request modifications of the plan
within 30 days of the date of the notice.
lie will also, in response to a request or
at his own discretion, hold a public
hearing whenever such a hearing might
clarify one or more issues concerning
the plan. The Regional Administrator
will give public notice of the hearing at
least 30 days before it occurs. (Public
notice of the hearing may be given at the
same time as notice of the opportunity
for the public to submit written
comments, and the two notices may be
combined.} The Regional Administrator
will approve, modify, or disapprove the
response action plan within 90 days of
its receipt. If the Regional Administrator
disapproves the plan he shall provide
the owner or operator a detailed written
statement of reasons for disapproval.
The owner or operator shall modify the
plan or submit a new response action
plan within 30 days after receiving such
written statement. The Regional
Administrator will approve or modify
the plan within 60 days.
(g) If liquids leaking into the leak
detection system specified under
§ 265.254(f) exceed the action leakage
rate for the top liner but are less than
rapid and extremely large, the owner or
operator must:
(1) Notify the Regional Administrator
of this occurrence in writing within
seven days of the leakage exceeding the
action leakage rate. The notification
must preliminarily identify the liquid
volumes that have been detected,
collected, and removed;
(2) Collect and remove accumulated
liquids; and
(3) Implement the plan if it was
previously submitted with the plan
pursuant to paragraph (e)(l)(i) of this
section, or submit an amended response
action plan pursuant to paragraph
(e)(l)(ii) of this section.
(4) Immediately sample the leachate
in the leachate detection, collection, and
removal system to determine the quality
of the leachate in accordance with the
requirements under paragraph (f){3) of
this section. The owner or operator must
provide this information to the Regional
Administrator at the earliest practicable
time. If the owner or operator
determines that the leachate exceeds
health-based standards he must
implement any response action
approved in the plan.
(5) The owner or operator must report
in writing to the Regional Administrator
on the effectiveness of the response
action as soon as practicable after the
response has been in place for 60 days,
and annually thereafter. The report must
describe the effectiveness of the
response action in preventing, to the
extent technically feasible with current
technology, hazardous constituent
migration out of the unit in excess of
levels above EPA-approved health-
based standards for ground-water
protection. At a minimum, the report
must address the factors set forth in
paragraph (f)(2) of this section and any
additional information required by the
Regional Administrator. The Regional
Administrator will review this report to
determine whether or not the selected
response is preventing hazardous
constituent migration out of the unit. If
the Regional Administrator determines
that the existing response action is not
preventing, to the extent technically
feasible with current technology,
hazardous constituent migration out of
the unit, the Regional Administrator will
so inform the owner or operator. The
owner or operator must then either
(i) Implement alternative responses
for the rate of leakage, if approved
response action plan contains such
alternatives; or
(ii) Amend the response action plan if
the approved response action plan does
not contain an alternative response.
The owner or operator must submit a
modification plan to the Regional
Administrator within 60 days. At a
minimum such modification must
address information set forth in
paragraph (b) of this section as well as
the rate of leakage, including the
likelihood of any increase, and the cause
of the leakage (e.g., liner incompatibility
or an accident). The plan will be
processed in accordance with the
procedure under paragraph (c)(4) of this
section.
(h) If the owner or operator
determines that the top liner action
leakage rate is being exceeded, he may
demonstrate for leakage less than rapid
and extremely large that the liquid
resulted from an error in sampling,
analysis, or evaluation, precipitation
during construction, or a source other
than leakage through the top liner.
While the owner or operator may make
a demonstration under this paragraph in
addition to submitting an application
under paragraph (e) of this section, he is
not relieved of the requirement to
submit an amended plan or to
implement the response unless the
demonstration made under this
paragraph successfully shows that the
liquid resulted from a source other than
top liner leakage, precipitation during
construction, or 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 as soon as practicable, that he
intends to make a demonstration under
this paragraph:
(2) Within 90 days of notifying the
Regional Administrator under paragraph
(h)(l) of this section, submit a report to
the Regional Administrator that
demonstrates that the liquid resulted
from a source other than top liner
leakage or that the apparent
noncompliance with the standards
resulted from precipitation during
construction, or error in sampling,
analysis, or evaluation. The Regional
Administrator shall review the
demonstration and notify die applicant
as to whether or not such a
determination is successful. The
applicant has 45 days to comment on
such a determination. The Regional
Administrator shall respond to those
comments and make a final decision on
the applicant's demonstration.
(3) If the Regional Administrator
approves the demonstration in
paragraph (h)(2) of this section, then the
owner or operator must submit an
amended plan to the Regional
Administrator to make any appropriate
changes to the response action plan for
the unit within 90 days of the Regional
Administrator's determination under
paragraph (h)(2) of this section.
(i) Within 45 days of detecting a
significant change in the leakage rate,
the owner or operator must submit to
the Regional Administrator a report on
the leakage that includes the following
information:
(1) An assessment of the problem
causing the leak that includes a profile
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20303
of liquid quantity collected and removed
versus time, and characterization of
changes in the rate of top liner leakage;
(2) A description of any change in the
response to be implemented as
approved in the response action plan;
(3) A schedule for implementation;
and
(4) Other information that the owner
or operator deems appropriate to fully
describe the response that will be
implemented.
14. New § 265.259 is added to Subpart
L to read as follows:
§ 265.259 Construction quality assurance.
Effective 12 months after
promulgation of this rule, the owner or
operator of each new waste pile unit or
component constructed at a waste pile
and listed under § 265.19(b) must
conduct a construction quality
assurance program in compliance with
§§265.19 and 265.20.
15. New 5 265.260 is added to Subpart
L to read as follows:
§265.260 Monitoring and inspection.
(a) An owner or operator required to
have a leak detection system under this
subpart must:
(!) Monitor for and record on a daily
basis the presence of liquids in the leak
detection system removal sump during
the active life (including the closure
period).
(2) Analyze the daily monitoring data
during the active life under paragraph
(a)(l) of this section on a weekly basis
to determine if the action leakage rate
under paragraph (i) (1) or (2) of § 265.254
is exceeded under the conditions of
paragraphs (a)(2) (i), (ii). or (iii) of this
section:
(i) The daily monitoring data averaged
over one month exceed the action
leakage rate during the active life or the
weekly monitoring data averaged over
three months exceed the action leakage
rate during the post-closure period; or
(ii) The daily rate for any one-day
period during a week exceeds 50 gallons
per acre per day; or
(iii) In lieu of the requirements of
paragraphs (a)(2) (i) and (ii) of this
section, the Regional Administrator may
specify in the permit an alternative
method for determining if the action
leakage rate under paragraph (i) (1) or
(2) of § 265.254 is exceeded.
(3) Establish a monitoring and
inspection program that will allow the
determination of the following
throughout the active life and the post-
closure care period:
(i) The rate of leakage into the leak
detection system sump, and the removal
rate;
(ii) The deterioration, malfunction, or
improper operation of the leak detection
system; ,
(iii) The^effectiveness of additional
controls implemented as part of a
response action plan when the action
leakage rate of the top liner is exceeded;
and
(iv) The effectiveness of the bottom
liner and leachate detection, collection,
and removal system to control leakage
below the action leakage rate.
(b) The owner or operator must record
all inspection information required in
paragraph (a) of this section in the
inspection log required under § 265.15 of
this part. The recorded information must
be in sufficient detail to demonstrate
that the leak detection requirements of
§§ 265.254 and 265.255 are being
complied with.
16. Section 265.278 is revised to read
as follows:
§265.278 Unsaturated zorw monitoring.
An owner or operator subject to this
subpart must have in writing, and must
implement, an unsaturated zone
monitoring plan to discharge the
following responsibilities:
(a) The owner or operator must
monitor the soil and soil-pore liquid to
determine at the earliest practicable
time over all areas likely to be exposed
to waste and leachate during the active
life and post-closure care period
whether hazardous constituents migrate
out of the treatment zone.
(l).The owner or operator must
specify the hazardous constituents to be '
monitored in the unsaturated zone
monitoring plan. Hazardous constituents
are constituents identified in Appendix
VUI of Part 261 of this chapter that are
reasonably expected to be in, or derived
from, the waste that is land treated.
(2) The owner or operator may
monitor for principal hazardous
constituents (PHCs) in lieu of the
constituents specified under paragraph
(a)(l) of this section. 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
owner or operator may establish PHCs if
he finds, based on waste analyses,
treatment demonstrations, or other data,
that effective degradation,
transformation, or immobilization of the
PHCs will assure treatment to 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, to at least a 95%
confidence level, the quality of
background soil-pore liquid quality and
the chemical make-up of soil that has
not been affected by leakage from the
land treatment area; and
(2) Indicate, to at least a 95%
confidence level, the quality of soil-pore
liquid and the chemical make-up of the
soil below the depth to which the waste
is incorporated into the soil.
(c) The owner or operator must
establish a background value for each
hazardous constituent to be monitored
under paragraph (a) of this section.
(1) Background soil values may be
based on a one-time sampling at a
background plot having characteristics
similar to those of the treatment area.
(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 area.
(3) The owner or operator must
express all background values in a form
necessary for the determination of
statistically significant increases under
paragraph (f) 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
depth to which the waste is
incorporated into the soil The owner or
operator must specify the frequency and
timing of soil and soil-pore liquid
monitoring in the unsaturated zone
monitoring plan, based on the frequency,
timing; and rate of waste application,
and die 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 area. At a minimum, the
owner or operator must implement
procedures aad techniques for.
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures; and
(4) Chain of custody control.
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Federal Register / Vol. 52. No. 103 / Friday. May 29, 1937 / Proposed Rules
be included in the inspection plan
submitted under § 270.14(b)(5):
* * • * *
3. Section 270.18 is amended by
revising paragraphs (c) and (d) to read
as follows:
§270.18 Specific Part B Information
requirements for waste piles.
* • « • •
(c) Detailed plans and an engineered
report describing how the waste pile is
or will be designed, constructed,
operated, and maintained to meet the
requirements of § § 264.251 and 264.252.
This submission must address the
following items as specified in
§§264.251 and 264.252:
(l)(i) The liner system (except for an
existing portion of a waste pile), if the
waste pile must meet the requirements
of § 264.251(a) of this chapter. If an
exemption from the requirement for a ' -
liner is sought as provided by
§ 284.251(b) of this chapter, submit
detailed plans and engineering and
hydrogeological 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;
(il) The double liner system and the
leachate collection and removal system,
if the waste pile must meet the
requirements of S 264.251(c) of this
chapter. If an exemption from the
requirements for double liners and a
leachate collection and removal system
is sought as provided by § 264.251 (d),
(e), or (f) of this chapter, submit
appropriate information;
(iii) The leak detection system, if the
waste pile must meet the r<"-'ii"ements
of i284.251(g) of this chapter. If
approval of an alternate leak detection
system is sought as provided by
§ 264.251(i) of this chapter or the leak
detection system is located in a
saturated zone, submit detailed plans
and an engineering report explaining the
leak detection system design and
operation, and the location of the
saturated zone in relation to the leak
detection system:
(2) Control of run-on;
(3) Control of run-off;
(4) Management of collection and
holding units associated with* run-on and
run-off control systems;
(5) Control of wind dispersal of
particulate matter where applicable;
(6) Determine if whether a granular or
synthetic media meets the minimum
requirements of § 284.251(h)(l) (i) and
(ii) owner or operators must provide
results from hydraulic conductivity tests
conducted on saturated samples of the
drainage media supporting the value
used in the design.
(d) A description of how each waste
pile, including the double liner system,
leachate detection, collection, and
removal systems, and appurtenances for
control of run-on and run-off, will be
inspected in order to meet the
requirements of S 264.254 (a), (b), and
(d). This information should be included
in the inspection plan submitted under
§ 270.14(b)(5).
*****
4. Section 270.20 is amended by
adding new paragraphs (j) and (k) to
read as follows:
§ 270.20 Specific Part B Information
requirements for land treatment facilities.
* ~ * * # *
(j) A response action plan that meets
the requirements of § 264.278(i).
(k) A description of how each land
treatment unit will be inspected in order
to meet the requirements of § 264.284.
5. Section 270.21 is amended by
removing paragraph (c) and
redesignating paragraphs (d), (e), (f), (g),
(h). (i), and (j) as (c). (d), (e), (f), (g), (h).
and (i), respectively.
6. Section 270.21 is amended by
revising paragraphs (b) and (c) to read
as follows:
J 270.21 Specific Part B Information
requirements for landfills.
*****
(b] Detailed plans and an engineering
report describing how the landfill is or
will be designed, constructed, operated,
and maintained to meet the
requirements of §1 264.301 and 264.302.
This submission must address the
following items as specified in
§§ 264.301 and 264.302:
(l)(i) The liner system (except for an
existing portion of a landfill), if the
landfill must meet the requirements of
§ 264.301(a) of this chapter. If an
exemption from the requirement for a
liner is sought as provided by
§ 264.301(b) of this chapter, submit
detailed plans and engineering and
hydrogeological 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;
(ii) The double liner system and the
leachate collection and removal system,
if the landfill must meet the
requirements of § 264.301(c) of this
chapter. If an exemption from the
requirements for double liners and a
leachate collection and removal system
is sought as provided by S 264.301 (d),
(e), or (f) of this chapter, submit
appropriate information; •
(iii) The leak detection system,;if the
landfill must meet the requirements of
§ 264.301 (g) of this chapter. If approval
of an alternative leak detection system
is sought as provided by S 264.301(1) of
this chapter or the leak detection1 system
is located in a saturated zone, submit
detailed plans and an engineering report
explaining the leak detection system
design and operation, and the location
of the saturated zone in relation to the
leak detection system;
(2) Control of run-on; \
(3) Control of run-off;
(4) Management of collection and
holding facilities associated with run-on
and run-off control systems; and
(5) Control of wind dispersal of
particulate matter, where applicable;
(6) Determine if whether a granular or
synthetic media meets the minimum
requirements of S 264.301(h)(l) (i) and
(ii) owner or operators must provide
results from hydraulic conductivity tests
conducted on saturated samples of the
drainage media supporting the value
used in the design.
(c) A description of how each landfill
including the double liner system,
leachate detection, collection, and
removal systems, and cover systems,
will be inspected in order to meet the
requirements of § 264.303 (a), (b), and
(d). This information should be included
in the inspection plan submitted under
§ 270.14(b)(5). '-•
* * * * *
7. Section 270.41(a)(5) is amended by
adding new paragraphs (ix) and (x):
§270.41 Major modification or revocation
.and rstesuanc* of permits.
(ix) When modification of a
construction quality assurance plan is
required under § 264.20(e)(ii).
(x) When modification of a response
action plan is required under S§ 264.222,
264.252, 264.278(k) and 264.302.
* * * * *
(a) * * *
(5) * * *
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
1. The authority citation for Part 271
continues to read as follows: '
Authority: Sec. 1008. 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). j
2. Section 271.1(j) is amended py
adding the following entry to Table 1 in
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