Monday
August 14, 1989
Part HI
Environmental
Protection Agency
40 CFR Parts 264, 265, and 270
Delay of Closure Period for Hazardous
Waste Management; Final Rule
-------
S3376 Federal Register / Vol. 54, No.. 155. / Monday, August 14, 1989.- / Rules and Regulations^
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 264,265 and 270
RIM 2060-AB71
Delay of Closure Period for Hazardous
Waste Management Facilities
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: The Environmental Protection
Agency |EPA) is today amending
portions of the closure requirements
under subtitle C of the Resource
Conservation and Recovery Act (RCRA)
applicable to owners and operators of
certain types of hazardous waste
facilities. Today's final rule allows,
under limited circumstances, a landfill,
surface impoundment, or land treatment
unit to remain open after the final
receipt of hazardous wastes in order to
receive non-hazardous wastes in that
unit. This final rule details the
circumstances under which a unit may
remain open to receive non-hazardous
wastes and describes the conditions
applicable to such units.
EFFECTIVE DATE: November 13,1989.
ADDRESSES: The public docket for this
rulemaiting is available fbrpuilc
Inspection in Room S-201, U.S.
Environmental Protection Agency, 401M
Street, SW., Washington, DC 20460, from
8;00 a.m. to 4:00 p.m., Monday through-
Friday, excluding Federal hoijdays. The
docket number ia F-88-DCPP-FFFFF.
The pabtfe. must make as appointment
to review docketmaterisk by calling
(202) 475-6327. The public may copy
materials at the cost of $.15 per page.
Charges under §15.00 are waived.
TOR FURTHER IKFORMATIOM CONTACT:
Th« RCRA Hotline at (800) 424-8346 (toll
frte) or (202) 382-3000 in Washington,
DC, or Permits Branch, Office of Solid
Waste (OS-341) U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20460, (202) 382-4740.
SUPPlfMEHTARY INFORMATION:
Pnmnbl* Outline
t Authority
II. Background
1!!. Summary of Today's Rule
W. Sectibn.-byrSsotion Analysis
A. Applicability
1. Surface Impoundments Nat Meeting;
Liner and Leachate Collection: System.
Requirements
2. Landfills
3. Land Treatment Units
4. Other Treatment and Storage Facili-
ties
B. Part 264 Standards
1. General Conditions for Delay, of; Clo-
sure (% 264.113(d))
a. Demonstrations for Extensions to:
Closure Deadlines (§ 264JE13tdJ(l))
(I) Design Capacity
(2) Receipt of Non-Hazardous Waste:
Within Qne Year
(3) Compatibility of Wastea
(4) Incompatibility of Closure with.
Continued Operations
b. Continued Compliance witfr Subtitle
C Requirements
c. Changes to Facility Hans
(§ 264.113(d)(2))
d. Exposure Assessment Information:
e. Permit Revisions (r264:H'3td)i4)}.
2. Additional Requirements for Surface;
Impoundments that do not Mee.t Liner
and Leachate Collection System Re-
quirements (§ 264.113(e))
a. Contingent Corrective M&&SOTBSE
Plan (I 264.113(e)(l))
B. Alternatives
(1) Alternative 1 — Removal of Haz-
ardous Wastes (§ 264.113Le}(3I
(a) Liquid and sludge removal
(b) Relationship to the mixture
rule
(2) Alternative 2— Flushing Hazard-
ous; Wastes
(3) Alternative 3 — Leaving: Hazardr-
• ous Wastes in Place
<& Corrective Action Requirements:
(Sf 264.113{e)(4) and (5))'
(I)" Corrective Action Trigger
(2) Other Media
(3)' Additional Corrective Measures:
Requirements
di Evaluating the Progress o'f Gorrac:-
tive Action (§ 264.113(e) (SJ, (8)1 and.
(7)]
3. Notification of Closure:
{§ 264.112(d)(2))
C. Part 270 Permit Modification Requests
(§ 270.42)
D. Conforming Changes
1. Conforming Changes to Part 265 filter^
im Status Requirements
a. Eligibility
b. Ground- Water Monitoring and Cor-
rective Action
c. Applicability to New Interim Stetoa
Units .
V. State Authorization
A. Applicability of Rules in A'uthorizedl
States
B. Effect of Rule on State Authorizations
\3. Executive Order 12291
VII. Paperwork Reduction Act
VIII. Regulatory Flexibility Act
E, Authority
These regulations are issued under the
authority of sections 1006, 2002(a), 3004,
30Q5rand 3006 of the Solid Waste
Disposal Act, as amended by the ,
Resource Conservation and Recovery
Mci of 1976, as amended (42 U.S.C. 6905,
8912(3), 6924, 6925 and 6926).
IE Background
Section 3004 of the Resource
Conservation and Recovery Act (RCRA)
requires the Administrator of EPA to
promulgate regulations establishing such
performance standards applicable to
owners and operators of hazardous
waste treatment, storage, or disposal
facilities (TSDFs), as may be necessary
to protect human health and the
environment Section 3005 requires the
Administrator to promulgate regulations
requiring each person owning or
operating a TSDF to have a permit, and
ta establish requirements for permit
applications. Recognizing that a period
of time would be required to issue
permits to all facilities, Congress created
"interim status" in section 3005(e) of
RCRA. Owners and operators of
existing hazardous waste TSDFs who
qualify for interim status will be treated
as having been issued permits until EPA
takes final administrative action on their
permit applications. The privilege of
carrying on operations during interim
status carries with it the responsibility
of complying with appropriate portions
of the section 3004 standards.
EPA has issued several sets of
regulations to implement these RCRA
requirements. These regulations include
part 264 (which provides standards for
owners and operators of TSDFs that
hsve been issued RCRA permits) and
part 265 (which provides standards for
owners and operators of interim status
TSDFs) of title 40 of the Code of Federal
Regulations (CFR). Subpart G within
these two parts addresses requirements
Ear closing TSDFs and maintaining them
after closure if necessary. The subpart G
requirements in both of these parts,
particularly the closure deadlines found
in §§ 264.112, 265.112, 264.113, and
2H5.113, will be affected by the
promulgation of today's final rule.
-------
•-•155-7- Monday, August 14. 19&9 /Rules and. Regulations 33377
-.- The requirements of §§ 264.113 and- --
265.113 were last amended on May 2,
1986 (51 FR 16422), In the May 1986 '- ;
rulemaking, the Agency made ; . ..'-'
- conforming, changes to the requirement
in § § 264.113 (a) and (b) and.-265:113 (a)
and:(b) requiring that closure be • .
completed, within 180 days after the final
receipt of hazardous wastes rather than
after the final-receipt of wastes' (51 FR
16422). After promulgation of the May 2,
1986 amendments, lawsuits were filed
challenging the requirement that closure
be completed within 180 days'after the , .
final receipt of hazardous waste. The •
litigants, Union Carbide Corporation
(Union: Carbide) and the Chemical
Manufacturers Association (CMA), ,
contended that this change was ','- -••
inconsistent with the Congressional
intent evidenced in the legislative
history-of the.Hazardous and Solid .'••
Waste Amendments (HSWA) which
. .amended RCRA in 1984 regarding:
closure .of surface impoundments. ; ?.-.
Further,, the litigation, contended that the
change;was unnecessary to prdtect :
-human health and the .environment, and
that it would discourage waste
minimization and other goals Congress
expressed in HSWA. EPA entered into
settlement discussions with the litigants.
To date, no, settlement of the case^has
been reached. : —
r On June 6,1988 (53 FR 20738), the
Agency proposed a rule amending the
parts 264 arid part 265 closure
requirements to allow owners and
operators of landfills; and surface
impoundments meeting specific
eligibility criteria to delay closure of
their facilities to receive non-hazardous
waste following the final receipt of
hazardous waste. The,rule proposed,
; general requirements for, surface •
impoundments and landfills wishing to
remain open to receive non-hazardous
wastes and:additional requirements for
surface impoundments that did not meet
the part 264 liner and leachate collection"
system requirements. '
The Agency received 24 comment
letters in response to the June 6,1988
proposal. The comments received were
filed in Docket #F-88-DCPP-FFFFF and
are available for public review.
Additionally, the Agency has, prepared a
summary of these comments and the
Agency's response in a document
entitled "Response to Comments to June
6j1988 Proposed Rule fo Allow Delay of
Closure Following the Final Receipt of
Hazardous Wastes (53 FR 20738]." This
document is available for public review
at the EPA RGRA Docket (Room 2427),
401M Street, Washington, DC 20460.
--Ei-brief, most'commetiters; Supported
allowing certain hazardous Waste
management units,the opportunity to •"•'""•
delay closure to receive only non-
hazardous wastes. These commenters
felt that the ^proposal provided owners
and operators of.these hazardous waste
, management units with needed
flexibility in their management "
.operaHons; These co'mmeriters also -"-":'
agreed with the Agency position that the
proposed requirements would provide
adequate protection of human health
and the environment.- _..'.'. "•;,
Commenters opposed to the proposal'
generally objected to its applicability.td
surface impoundments not sadsfying the
liiier and leachate collection, aspects of
this minimum technology requirements
(MTR). Commenters expressed concern :
that these units could not be operated in
a manner that would be adequately v
protective of human health and the
erivironmeht. These Commenters also, '
contended that the Agency did hot have
the authority to allow these units to
remain open, since RCRA section 3005(j)
required them either to be retrofitted to
meet MTR, or to cease the receipt of
hazardous waste on November 8,1988.
The Agency has carefully considered the
comments received and is today
finalizing the proposal with a number of
changes which are discussed further in
later sections of this preamble. " . -
III. Summary of Today's Rule -• -
Today the Agency is promulgating
requirements amending 40 CFR 264.113
and 265.113, that will allow certain
landfills,, surface impoundments, and
land treatment units to be eligible to
delay closure to receive only non-
hazardous waste after the final receipt
of hazardous waste. The Agency
believes that these units, including •
surface impoundments that do not meet
the part 264 liner and leachate collection
system elements of the minimum
.technological requirements (MTR)-
specified by RCRA. section 3004(o), but
from which hazardous wastes have been
removed, can operate in an ;.
, environmentaily protective manner by
meeting the requirements set forth in
this rule. The requirements promulgated
in today's rule specify general
conditions applicable to, all surface
/'impoundments, landfills and land
treatment units delaying closure, with
addrtionalconditions imposed on
surface impoundments that do not meet
part 264 liner arid leachate collection
system requirements. -
; Owners and operators of facilities
delaying closure under today's rule will
be required te operate under the full
permit requirements, of 40 CFR part 264
- (or part 265 requirements until a permit
is issued), including corrective action
requirements. In addition, surface
impoundments not in compliance with
liner and leachate collection system
requirements will be required to remove
all hazardous waste to the extent
practicable. Facilities currently in
interim status that meet the
requirements of today's rule may delay
closure while the permit application is
being reviewed.
The general requirements in
,§§264.113(d) and 285.113(d) applicable
"to all owners and operators wishing to
,. delay closure are being finalized as
proposed with a few minor clarifying
changes. These requirements are
illustrated in Exhibit 1. Owners and
operators wishing to delay closure under
today's final rule must request a permit
modification at least 120 days prior to .
final receipt of hazardous wastes, or, if
the facility is in interim status, submit,
an amended part B application (or a part
B application if one has not been
previously submitted) at least 180 days
prior to the final receipt of hazardous -
wastes. Owners or operators of units
that received their final volume of
hazardous wastes before promulgation
of today's rule may delay closure if they
submit the required demonstrations and
permit modification (or amended part B
application) within 90 days of today's
Federal Register notice. Facilities which.
lost interim status prior to today's notice
are ineligible.to delay closure. These
units may, of course, submit permit
applications, which, if approved, could
allow them to receive non-hazardous
wastes pursuant to the applicable
requirements of today's rule.
BiLUNGS COBS 6560-SO-l* --
-------
83378 Federal Register / Vol. 54, No. 155 / Monday, August 14,1989 / Rules and Regulations
Requirements Applicable to AH Facilities
Wishing to Defer Closure
Submit Permit Modification/
Revised Part B Application with
Demonstrations and Revised Plans!
of §§264.113(d)/265.113(d)
720 Days (180 Days for Interim Status)
Final Receipt of
Hazardous Waste
Non-MTR Impoundments
Comply with §§264.113(e)
and 265.113(e). See
Exhibit 2
I
Receive Non-Hazardous Waste/
Continue to Comply with
Subtitle C
Notification
of Closure
30 Days (150 Days for Interim Status)
Final Receipt of
Non-Hazardous Waste/Closure
J
Note: If a permit or permit modification Is denied at any
time, or interim status terminated for the affected
unit, closure pursuant to §§ 264.113(a) and (b) or
265.113 (a) and (b) must be initiated.
S45094-I
•IU1NC COOS WMO-SO-C
-------
Federal Register / Vol. 54, No.
August 14, 1989 / Rules and Regulations 33379
The request for a permit modification
or the amended part B application must
include demonstrations that the unit has
the existing design capacity to manage .'.
non-hazardous waste, and that the non-
hazardous wastes are not incompatible
with any hazardous or non-hazardous
wastes remaining injhe unit. In
addition, certain facility information
including the waste analysis plan,
ground-water monitoring plans, closure
and post closure plans arid cost
estimates, financial assurance
demonstrations and the human exposure
assessment information required under
RCRA section 3019, must be updated as
necessary to account for receipt of only
non-hazardous waste.
Owners and operators of units
remaining open under today's rule must
also continue to comply with all
applicable part 264 permit requirements
(or part 265 requirements until a permit
is issued)^ Units may not remain open to
receive only non hazardous wastes if
the Regional Administrator determines
thatrcontinued operation of the unit or
facility, cannot be conducted in
accordance with these requirements
ensuring the protection of human health '
• and-the environment. Finally, units must
be closed in accordance with:the
approved closure plan and the subpart
G regulations applicable to hazardous
waste management units, including
notification of the Agency in accordance
with the deadlines specified in
§§264.112(dHl]and265.112(dXl). '
Additionally, the owner or operator •
must initiate closure" under the following
circumstances: A request to modify the
permit to manage only non-hazardous
/wastes is denied; the permit is
terminated or is revoked at any time; a
RCRA permit is denied for interim status
facilities; or interim status is otherwise
terminated. Closure must be conducted
in accordance with the approved closure
plan and the deadlines currently in •
§ 264.113 (a) and (b] or § 265.113 (a) and
(b),
Today's rule also establishes
additional requirements applicable to
surface impoundments that do not
satisfy the;liner and leachate collection -.
system requirements specified under
RCRA section 3005(j) or have not
received a waiver from these
requirements, but wish to delay closure
to receive non-hazardous waste. These
additional requirements, including
removal of hazardous was te,
accelerated corrective measures, and
strict limitations on continued
operations following detection of a
release from the unit, will ensure that
these units are adequately protective of
human health and the environment. The
specific requirements are illustrated in
Exhibit 2 and summarized briefly below.
BILLING CODE 6S60-SO-M
-------
33380 Federal Register / Vol. 54, No. 155 / Monday, August 14,1989 / Rules and Regulations
• • ' _ •'• ' - Exhibit 2 •' ' - • " "
Surface Impoundment/Waste Removal Alternative
Submit Permit Modification/Revised
Part B Application with Demonstrations
and Revised Plans of §§264.113(d)/
265.113(d) and Contingent Corrective
Measures Plan
Release Detected-
Implement Corrective
Measures
Closure if No
Substantial Progress*
720 Days (180 Days for Interim Status)
Final Receipt of Hazardous
Waste
i
90 Days
Removal of
Hazardous Waste
Receive Non-
Hazardous Waste
Final Receipt of
Non-Hazardous Waste
Closure*
Release Detected-
Implement Corrective
Measures
Closure if No
Substantial Progress*
* Unit continues to be subject to corrective
action requirements, If applicable. -
WUJW tXXXt «S«WKMJ
-------
.Federal Register J-Vof- 54, ;Np..l55_/\ Monday, August 14, 1989.-/Rules'.and Regulations 33382
Owners and operators of. surface
impoundments riot meeting liner arid
leachate collection system requirements
must prepare and submit a .contingent
corrective measures plan-with their '•
request to modify their permit (or for
interim status facilities, with their
amended part B application). The plan
must include a description of corrective
measures that can be implemented
quickly if a release is detected and, if .
waste may continue to be received, a
demonstration that continued receipt of
wastes following detection of a release
will not impede implementation of the
corrective, measures. (The contents of
the plan are discussed in more detail in
IV.B.2.3 of today's preamble). '"' •
Under the final rule, owners and.
operators of surface impoundments not.
meeting double liner and leachate -'-
collection system requirements and who
wish to delay closure must remove all
hazardous liquids and remove all
sludges from the impoundment to the
extent practicable. If a release is
detected either prior to or after final
receipt of hazardous wastes at a surface
impoundment from which hazardous -/
wastes have been removed, corrective
measures must be implemented within
one year from jthe date of release. '
Continued receipt of non-hazardous
wastes while corrective measures are'
being implemented may occur only if the -
owner or operator already has an
approved contingent corrective
measures plan (or a fullrcprrective
action plan) that accounts for the
continued receipt of non-hazardous
wastes and demonstrates that such ,
continued receipt of wastes will not
impede the progress of the corrective'
action. If the corrective measures plan
has not been approved, receipt of waste
must cease until such a corrective
measures plan has been approved.
If an owner or operator fails to make
substantial progress in conducting .-'-
corrective action, either by failure to
initiate actual remediation of
containment activities within the first
year and/or subsequently failing to
" implement actions leading to substantial
progress towards achieving the facility's
ground-water protection standard
(GWPS) or backgroundlevels, if
applicable, he must initiate closure oL
.the impoundment in accordance withT7
the requirements of subpart G of part
264 or 265. Substantial progress towards
achieving the facility's GWPS or --•'-.-.
background levels will be determined on
a case-by-case basis. The achievement,".
of substantial progress will be measured'
by whether the owner or operator has
corrective action measures hi place
within one year, and has met significant
plan milestones or deadlines in the .
compliances schedule, permit, or
enforcement order that establishes .
timefranies for achieving the facility's .
GWPS, or background levels. Today's
rule also includes administrative • •_•
procedures providing opportunity for
public comment'on the Regional
Administrator's decision that ... -
substantial progress has not been made
and that closure of the unit is therefore
required.
IV. Section-fay-Section Analysis'
The following sections of this
preamble address the major issues
raised by commenters on the proposed
rale and present the Agency's response
to these major issues and rationale for
changes to the proposed rule, The .' ' -
preamble is arranged in a section-by-
section sequence for, ease of reference.
Section A addresses the applicability of
the-rule. Section B discusses the part 264
technical 'requirements applicable to
permitted facilities. The part 270
procedural requirements applicable to
permitting are addressed in section C.
; Section D discusses the .conforming
changes to 265 interim status standards.
The requirements .proposed in parts 264
and 265 are substantively identical, but ,
have slightly different procedural
requirements. , ;
A, Applicability
Today's rule is restricted to permitted
and interim status landfill, land
treatment, and surface impoundment
units that: (1) Are in compliance with
applicable permit or interim status =
requirements (except double liner
requirements); (2) cease to receive
hazardous wastes; and (3) will
subsequently.receive only non-
hazardous waste. The proposed rule did
not extend the option to delay closure to
land treatment units, but specifically .-1
requested comments on whether the
option should be available to such units.
After considering public comments -
received, the Agency has decided to
allow land treatment units to delay
closure if they satisfy the eligibility
criteria in § 264.113(d) or § 265.113(d).
This change is discussed in greater
detailm section IV.A.3. below.
The rule does not extend the option:to
delay closure to units that lost interim
status. Today's rule also does not
extend the option to delay closure -to
manage only non-hazardous wastes to
storage or treatment tanks, container -.
storage areas, waste piles, or
incinerators. If owners or operators of
such units wish to receive nori- '.
hazardous wastes after the final receipt
of hazardous wastes, they must first
comply; with the current closure
requirements. The Agency believes that
the activities necessary to close storage
units and incinerators (e.g., waste
removal and decontamination) are
compatible with the .future use of the
unit and therefore requiring these units
to conduct closure prior to receiving
only non-hazardous wastes, will not
impose an undue burden on owners or
operators.
1. Surface Impoundments Not Meeting
Liner and Leachate Collection System
Requirements
The proposal required surface
impoundments not meeting the MTR
liner and leachate collection system
standards to meet the general conditions
applicable to all units (§ § 264.113(d) and
265.113(d)) as well as additional
requirements (§§ 264.113(e) and
265.1l3(e)). The proposed rule (Option 3,
§ 264.113(e)(3)) allowed impoundments
in which wastes remained in place (i.e.,
disposal impoundments) to delay
closure only if they were not leaking at
the time of the final receipt of hazardous
waste. As described below, the
requirements of §§ 264.U3(e) and
265.1l3(e) have been modified in the
final rule in response to comments
received on the proposal.
Many commenters favored the
provision of the proposal allowing non-
MTR surface impoundments to delay
closure and provided anecdotal .
information in support of it. Other
commenters opposed the proposal* •
expressing concern that it would
adversely impact human health and the
environment. Those commenters
asserted that the proposed rule would
violate the requirements in RCRA
section 30050) which require that
surface impoundments that have not met
MTR cease receipt, storage, and
treatment of hazardous wastes on
November 8,1988. Commenters further
argued that because all hazardous
wastes would not be removed from the
impoundment (for instance, under .one of
the options, no hazardous wastes were
required to be removed), and because
the facility would not cease activities
that involve the management of the
remaining hazardous wastes, the unit
should be considered an active
hazardous waste surface impoundment
and therefore would be in violation of
section 3005(j) of RCRA. These
commenters further asserted that the
proposal violates RCRA section '.-
1003(a)(5) because the proposal achieves
protection of human health and the
environment by remediating releases,
rather than by preventing releases, " .
which they argued is required by the
statute. -_'•,„'•
-------
Federal Register / VoL 54. No. 155 / Monday^ August 14, 1989 / feules and Regulations
One of these commenters also
-------
FedgrEegist0f /
Ant.'H 1989 / Rules ant* Regulations
3335,3
To further ensure continued
.- environmental protection,.the Agency
has retained the requirements it
proposed to expedite the detection and
remediation process. Units delaying
closure will be required to receive
permits and to operate under part 264
standards including ground-water
monitoring standards. These units will
therefore be subject to the same ground-
water monitoring requirements as units
meeting all MTR. Further, to ensure
prompt response and remediation in the
event of a release, accelerated
corrective action and/or closure of units
is required. ., -
Surface impoundments not meeting
liner and leachate collection systems ;
requirements must submit a contingent
corrective measures plan describing
interim measures for handling a release i,
if it occurs and promptly implement this
plan if a release is detected. Detection of
releases will be determined using either
background levels or the ground-water
protection standard (GWPS) if one has
been established. Further, owners and
operators will not be allowed to delay
implementation of corrective measures
while a GWPS is being established. ,
The Agency therefore continues to
believe that the combination of waste
removal and stricter detection and
remediation requirements of :
§ § 26l.ll3(e) and 265.113(e) will protect
human health and the environment and
be consistent with the objectives-and
specific requirements of RCRA.
Accordingly, the Agency is finalizing
revised requirements in § § 264.113(e)
and 265,113(e) which allow surface
impoundments not meeting liner and '
leachate collection system requirements
to delay closure if hazardous wastes are
first removed and other eligibility and -
operating criteria are met. Section IV.B.2
discusses in more detail how the •
proposed requirements have been '
modified in response to comments.
2.Landfills .-" ' ''--.
The proposed rule would allow . .
landfills that meet the general
requirements set forth in §§ 264.113(d)
and 265.113(d) to delay closure. One
commenter opposed allowing landfills
not meeting MTR to delay closure. The .
commenter contended that landfills not
meeting MTR would pose risks of
release similar to those posed by non-
retrofitted surface impoundments..;.
The Agency has considered the
commenter's concerns, but is .;•-..'
promulgating the finaLrule as proposed
allowing landfills to delay closure if
they meet the requirements in
§ 264.113(d). Existing landfills are hot
subject to the provisions of Section '
3005(j) of RCRA that require surface
impoundments to retrofit or cease
receiptof hazardous waste by
November 8,1988. Existing landfills are,
however, subject to the requirements of
section 3004(o) of RCRA. Under section
3004(o) existing landfills must retrofit to
meet MTR or cease receipt of hazardous
waste only if they are laterally
expanded, or otherwise trigger the
replacement or new unit definitions.
The Agency believes that since
existing landfills not satisfying MTR
may remain in operation to handle
hazardous wastes, they should be
allowed to delay closure to receive only
non-hazardous wastes if they meet the
requirements of I 264.113(d) or
§ 265.113(d), as applicable. The Agency
also disagrees with the commenter's
view of the risks presented by receipt of
non-hazardous waste at landfills. When
evaluating a request to delay closure of
an existing landfill, the Agency xvill
carefully consider the compatibility of
the hazardous and non-hazardous waste
to be .managed in the landfill in addition
to all other requirements in §§ 264.113(d)
and 265.113(d). Requiring landfills to
comply with §§ 264.1l3(e) and 265.1l3(e)
would result in units receiving only non-
hazardous wastes being subject to more
stringent requirements than landfills
receiving hazardous wastes.
Accordingly, under today's rule, landfills
are subject only to the requirements in
§§ 264.1l3(d) and 265.113(d) to:delay
closure,
3; Land Treatment Units •
The proposed rule, did not extend the
option to delay closure to land treatment
units. The Agency did, however,
specifically request comment on
whether the proposal should be
extended to land treatment units.
The majority of commenters on this
issue supported extending the option to
delay .closure to land treatment units.
Comments favoring the option pointed
out that many land treatment facilities
already manage.both hazardous and
non-hazardous waste streams.
Commenters further asserted that land
treatment units pose a lower risk to
ground water than surface '
impoundments and landfills because
hazardous constituents are degraded
and immobilized as part of treatment,
and that the destruction efficiency of a
land, treatment unit may be improved
when non-hazardous wastes are
combined with hazardous wastes.- One
commenter who opposed allowing land
treatment units to delay closure stated
that increased pressure and potential
explosive and subsidence hazards .could
be caused by the acceptance of non-
hazardous wastes. ; •
The Agency,has considered these
comments and has expanded the final
rule to allow land treatment units to >,
delay closure if they satisfy the
eligibility criteria of §§264.113(d) and
, 265.113[d). The Agency believes that
land treatment units can delay closure
and operate in a manner that is
protective of human health and the
environment. All land treatment units
that delay closure will continue to be
subject to all subtitle G requirements for
land treatment units and the
requirements of §§ 264.113(d) and
265.113(d) of today's rule. Existing
subtitle C regulations require owners
and operators of land treatment units to
demonstrate that the hazardous
constituents in the subtitle C wastes will
be completely degraded, transformed or
iinmobilized in the treatment zone. As
part of the permit or permit modification
(or amended Part B application for
interim status facilities) required to
delay closure, these owners and
operators will be required to
demonstrate that receipt of non-
hazardous waste will not inhibit the
degradation, transformation or
immobilization of the hazardous wastes '
in the treatment zone. These factors,
together with the other requirements of
§§ 264.113(d) and 265.113(d) will ensure
that land treatment units delaying
closure are adequately protective of
human health and the environment.
4. Other Treatment and Storage
Facilities
The proposed rule would not allow
storage units (i.e., storage and treatment
tanks, container storage areas, or waste
piles) or incinerators to delay closure. In
the preamble to the proposal, the
Agency stated that if these units wanted
to delay closure hi order to receive only
non-hazardous waste, they would first
be required to close in compliance with
the requirements of subpart G. The
requirements for closure of these units
involve removal or decontamination of
all Wastes and waste residues,
containers, liners, bases and
.contaminated soils, equipment and other
containment system components (40
CFR 264.178, 264.197, 264.258, 264.351,
265.197, and 265.351). These closure
.requirements are not incompatible with
the reuse of these units for receipt of
only non-hazardous waste. Once the
unit has been emptied of all hazardous'
wastes and decontaminated, it could
receive non-hazardous waste as a
subtitle D facility, without being subject ,
to the stricter provisions of today's rule.
Only one commenter recommended
that tanks and container storage areas
be allowed, to delay closure. The1 Agency
-------
federal Register / Vol. 54, No. 155 / Monday, August 14, 1989 / Rules and Regulations
continues to believe that because the
fflclivitict which would be necessary to
delay closure are so similar to activities
required to dose these units, prohibiting
»torag« unit* from delaying closure
under today"* role wRlnot impose an
undue burden an the owners and
operators of these oajts. Therefore, the
final rule is promulgated as proposed
and is not applicable to storage and
treatment tank*, container storage
areas, waste piles and incinerators.
B. Part 264 Standards
The Agency proposed to amend
II 264.112(4) and 284.113 (a), (b), and
(c). and to add new paragraphs (d) and
Icl to § 264,113, Sections 264.113 (a) and
fb) require a facility owner or operator
to treat, dispose, or remove all
hazardous wastes within 90 days and to
complete closure activities within 180
days of the final receipt of hazardous
wastes. Further, 1284J12(d) establishes
that the dtte Ihe owner or operator
expects to begin closure, which triggers
the notification requirements, is no later
than 30 days after the receipt of the last
known volume of hazardous wastes.
Und€sr || 284.113 (a) and (b) and 265.113
(a) and (b), extensions to the closure
period may be granted in certain limited
circumstances. Today's rule provides an
additional justification for an extension
of the closure period to allow for
management of only non-hazardous
wastes. Additionally, a conforming
change is being made to §§284,112(d)
and 264,H3(c) to address deadlines for
closure of units that qualify to delay
closure, The changes to § 284.113 being
promulgated today supplement existing
part 264 standards and provide
assurance that public health and the
environment will be adequately
protected at units delaying closure.
1. General Conditions for Delay of
Closure {§ 264.113 (d))
Section 264.113{d) of today's rale
establishes the general requirements
applicable to all units delaying closure
to receive non-hazardous wastes after
the final receipt of hazardous wastes.
These requirements supplement existing
subtitlt C requirements. The 1284.113{d)
requirements arc discussed in turn
balow,
a. Dcmottttrotiotut for Extensions to
Ctosttm Deadline* (§ 2S4.ns(d)(l)).
Section 264.113{d}(lJ of the proposed
rale required owners and operators of
futilities wishing to delay closure to
demonstrate as part of their permit
application or modification that: (1) The
umt(s) has adequate existing design
capacity .to continue to receive waste;
(2) there it a reasonable likelihood that
non-hazardous wastes will be received
in the unit within one year of the final
receipt of hazardous waste; (3) non-
hazardous wastes received will be
compatible with any other wastes
remaining in the unit; (4) closure of the
unit is incompatible with continued
operation of the facility; arid {5} the
facility will continue to be operated in
compliance with all applicable permit or
interim status requirements.
The Agency received a number of
comments regarding these
demonstrations. Most commenters
recommended that the required
demonstrations be modified or deleted
from the final rule. The Agency
continues to believe, however, that the
demonstrations required in the proposal
are necessary to ensure that units
delaying closure to receive only non-
hazardous waste remain adequately
protective of human health and the
environment. In many cases, the
required demonstrations are the same as
those currently required under
§§ 264.113(b) and 265.113(b) for units
wishing to temporarily suspend
hazardous waste management activities.
The Agency's rationale for retaining
each of the demonstrations is presented
below.
(1) Design Capacity. One commenter
recommended that the option to delay
closure not be restricted to a facility's
original design capacity. The Agency
continues to believe that it is prudent to
restrict the option to delay closure to the
existing design capacity. In proposing
these changes to the closure
requirements, the Agency recognized
that closure of a unit while the unit has
remaining capacity to receive non-
hazardous wastes could disrupt facility
operations or impose substantial
economic burdens on the facility owner
or operator. Where existing capacity can
be utilized to manage non-hazardous
wastes in a manner that remains
protective of human health and the
environment, extensions to the closure
period may be allowed. The Agency
believes that it is unwise to allow the
expansion of subtitle C units for
managing non-hazardous wastes, thus
resulting in largeTinits subject to subtitle
C. Finally, the Agency does not believe
that many owners and operators would
want to expand their subtitle C units or
facilities simply to receive more non-
hazardous waste, since such lateral
expansion of surface impoundments and
landfills would trigger the liner and
leachate collection system requirements
of RCRA section 3004(o). The Agency
recommends that if additional non-
hazardous waste capacity is needed, a
facility choose to construct a unit
designed to handle non-hazardous
wastes in accordance with Subtitle D
requirements. "
(2) Receipt of Non-Hazardous Waste
Within One Year. A commenter
suggested that the required
demonstration that wastes will be
received within one year of the final
receipt of hazardous waste be
documented (e.g., through submission of
contracts indicating anticipated receipt
of non-hazardous waste) and that the
tune period within which non-hazardous
wastes must be received should be -
shortened to three months. The Agency
does not believe that such changes are
necessary. The provision allowing a unit
to remain open if it receives additional
wastes within one year of the final
receipt of hazardous wastes is
consistent with the provisions allowing
continued receipt of hazardous waste. In
implementing §§ 284.112(d)(2} and
265.112fdj(2), the Agency currently
determines on a case-by-case basis the
documentation that best supports the
claim that additional wastes will be
received and that sufficient design
capacity is remaining. In evaluating
these submissions, the Regional
Administrator generally takes into
account a number of factors including
those suggested by the commenter, such
as: (1) Unit or facility characteristics,
including capacity and operating
conditions; (2) demand for the facility;
(3) the owner or operator's business
plans; and (4) the history of facility
operations (OSWER Policy Directive
#9476.00-5, January 1987, pp. 3-16 and
3-17). Finally, the, eligibility
requirements, including the
requirements to continue to comply with
all permit conditions or interim status
standards, if applicable, will ensure that
units remaining open following the final
receipt of hazardous waste are
protective of human health and' the
environment.
(3) Compatibility of Wastes. The
Agency received comments on the
compatibility demonstration
(§§ 264.113{d)(l)(iv) and
265.113{d)(l)(iv}} only with respect to
landfill units. Several commenters
challenged the Agency's suggestion in •
the preamble that it would be difficult to
demonstrate that municipal solid wastes
would be compatible with hazardous
wastes remaining in landfill units, and
therefore it would be unlikely that
receipt of municipal solid wastes would
be allowed. The Agency continues to
believe that in most cases, it will be
difficult to demonstrate that municipal
solid wastes will be compatible with
hazardous wastes remaining in a unit
delaying closure. Problems which are
anticipated include subsidence,
-------
FederalJfegjgjgT-/VoK 54.-NQ| \15g/ Monday, Aagust 14, 1989 /Rules and Regulations 33385
settlement of the cap, or leachate and
methane gas production. The Agency ,
acknowledges, however, that some units
have been specifically designed to cq.-
manage both hazardous and municipal
solid wastes. For these types of units,
the Agency agrees with the commeriter,
that it may not be difficult to . .•-.>'
demonstrate that the continued receipt
of non-hazardous wa'stes will be
compatible with the design of the unit
and with the hazardous Wastes . :
remaining in the unit. In cases where the
unit ha? not been designed specifically
to handle hazardous and non-hazardous
wastes, however, the Agency still
believes that it will be difficult to . '
demonstrate that the addition, of non-r
hazardous wastes will be compatible
with the remaining wastes in the unit
and with the facility design and ;
operating requirements of part 264. The
requirements of §§ 264.113(d)(l)[iv) and
265.113(d)(l}(iv) therefore remain
unchanged. These requirements are
applicable to all types of units eligible to
delay closure. •'.''--"...'" " •-
(4) Incompatibilityof'Closure'With
Continued Operations. A few."
commenters expressed confusion about
the requirement that owners and
operators.demonstrate that closure of
the unit would be incompatible with
continued operation of the facility.
After considering the commenters',
concerns, the Agency has decided to
retain the requirement that owners arid
operators of units delaying closure
demonstrate that closure of the unit
would be incompatible with continued
operation of the facility ,
(% 264.113(d)(l)(iv)). This requirement is
consistent with existing requirements
for requesting an extension fo the
deadlines to begin closure for owners or
operators wishing to receive additional
hazardous wastes, and has not proved;
to be an implementation concern'to
date. This demonstration can.be
supported by.submission of information
showing the role of the unit in the
facility's Overall waste management V
scheme. The practical, rather than
economic, disruptions which closure of
the unit with remainjng capacity would ,
have on facility operations should be
evidenced. .
TO, Continued Compliance With -
Subtitle C Requirements. A few
commenters. asserted that the Agency
does not have the authority to require •
continued compliance with Subtitle, C
permitting requirements because units
delaying closure would be managing
only non-hazardous wastes. One
commenter recommended that the •
Agency not require compliance with.. .
both State and local regulations in. •"' ..
addition to Subtitle C requireinents to
avoid duplicate and potentially
conflicting requirements. Finally, one
commenter suggested .that the Agency
clarify that surface impoundments not •
meeting liner arid leachate collection
system requirements need not comply
with the permit requirements for ,
retrofitting, _ ;;
RCRA provides the Agency ample,
authority to regulate any units that
received hasatdous waste after <• •- .' -
November 19,1SJ8Q. llnits wishing to
delay closure are currentlyTeguiated .
under Subtitle G and remain regulated
as long as hazardous constituents from
those wastes remain in the units, unless
the owner or operator obtains a delisting
or satisfies clean closure requirements.
In specifying in the preamble to the
proposal that units comply with-
appiicable State and local regulations,
the Agency was merely restating :. - -
existing requirements. Currently, • an :
owner or operator is subject to all
applicable State and local regulations in
addition to applicable Federal
requirements.
Finally, one commenter pointed out
that the requirement-for surface
impoundments not designed to satisfy
the MTRlmer and leachate collection
system requirements to comply with all
part 264 permit requirements could
cause confusion. The Agency wishes to
clarify that the MTR liner and leachate '
'collection requirements are not
applicable permit requirements for .
surface impoundments operating under
a § 264.113[e) and § 265.113(e); ••_:'
extension. It should be noted that lateral
expansion of units delaying closure
pursuant to | § 264.113{d) and (e) is not
allowed. Lateral expansion of such units
would trigger the MTR requirements of
§ 3004{o) as well as constitute a -•
violation of today's regulation.
G. Changes to Facility Plans -".':'-
(§264.113(d}(2)). Section 264.ai3(d)(2}
proposed that owners and operators '
submit .with their permit modification
request, necessary and appropriate
changes to the waste,analysis plan,
ground-water monitoring plan and 7
response plan, closure and post-closure
plans and cost estimates, and
, demonstrations of financial assurance
required elsewhere in part 264. These
requirements parallel existing
requirements that facility plans be '
revised to reflect substantial changes in
" the .types of hazardous wastes being
handled or the hazardous waste
management practices employed.
Similarly, the Agency believes that to
ensure proper management of units •:'-,
receiving noa-hazardous wastes,
selected plans should be revised to "
reflect changes in unit operations for
managing only non-hazardous wastes.
The Agency received'very few
comments on the proposed requirement
to modify the ground-water monitoring
plan, closure and poet-closure plans and
cost estimates, and financial assurance
demonstrations (responses to these
comments appear in the Comment
Response Document). However, a '
number of commenters objected to the
requirement to revise the waste analysis
plan. One commenter stated that
modifying the waste analysis plan is •
unnecessary because waste
compatibility already will have been
demonstratetlunder the requirements of
§ 284.113[dKl)(iii). In addition, this
commenter stated that the Subtitle C
, waste analysis program cannot be
adapted to municipal solid wastes
because of the difficulty of obtaining the
necessary data. Under Subtitle C,
generators df hazardous wastes must
prepare a manifest identifying the
contents of each shipment of waste. Iii -
contrast, generators of municipal solid
. wastes are not required to compile the '
data necessary to characterize their
wastes. Thus, municipalities and
commercial trash collectors would be
unable to provide the TSDFs with data
on the exact content of municipal solid
waste {generally household wastes)
which would be necessary to comply
with the waste am lysis plan
requirements. •
The Agency continues to believe that
revision of the waste analysis plan is
necessaryand practicable in most cases.
Such information will be required to
support the compatibility demonstration
in § 284.113(d)(l}(iii). The Agency would
expect the compatibility demonstration
required in § 264.113[d}(l)Łui) to cross-
reference the waste analysis plan as ''.
evidence that non-hazardous waste :
streams are compatible with previously
managed hazardous wastes.
It should be noted, however, that the
final rule requires that the waste . :
analysis plan be revised "as necessary
;-.. and •appropriate" to account for the
addition of additional or new hon- .
hazardous waste streams. The Agency
acknowledges that in some cases the ,
Subtitle C procedures for conducting
• physical and chemical waste analyses
and the requirements to prepare a waste
analysis plan describing these
procedures may be difficult to apply to
municipal solid wastes. For example,
generators of municipal trash (e.g.,
households) do not have the data
necessary to characterize the wastes. In
such cases, the Agency may allow the
owner or operator to use his own
knowledge about the waste -streams to
-------
83388 Federal Register / Vol. 54. No. 155 / Monday, August 14. 1989 / Rules and Regulations
make the required compatibility
demonstration (e.g., local ordinances
that prohibit certain types of wastes
from being disposed in the trash or
visual inspections of truckloads). This
flexible approach is consistent with
current Agency practices.
d« Exposure Assessment Information.
Section 204.113(d)(4) of the proposed
rule would have required owners and
operators wishing to delay closure to
submit the human exposure assessment
required under RCRA section 3019{a)
with the request to delay closure. This
section further would have required that
if the Regional Administrator
determined that the unit posed a
substantial risk to human health, then
the unit would not be eligible to delay
closure.
One commenter recommended that
the Regional Administrator determine
that continued use of the unit to receive
only nonhazardous waste would not
pose a substantial risk to human health.
Another commenter argued that the
requirement was stated to excessively
vague language and provided no
opportunity for administrative appeal.
Finally, a third commenter stated that
section 3019 information must be
submitted only upon submission of a
final part B permit application, and that
rosubmission of the data should not be a
condition of delaying closure.
Ths Agency has considered the
commenters' recommendations and
agrees that resubmission of the human
exposure assessment information
required under RCRA section 3019{a) (40
CFR 270.100)) may not always be
necessary to demonstrate that a unit can
operate in a manner protective of human
health and the environment. The
purpose of the information gathered
under the authority of RCRA section
8019 is tq assist irj the evaluation that a
unit delaying closure can continue to
operate in a manner protective of human
health and the environment, Therefore,
the Agency is modifying the final rule to
clarify that the information will only be
required to be updated "as necessary
and appropriate" to account for the
receipt of non-hazardous wastes
following final receipt of hazardous
wastes. The Agency is also including the
requirement to submit or revise the
§ 3019 information with the other plans
and information updates required under
§ 2C4,113(d)(2) rather than as a separate
requirement in § 264.113{d)(4). As a
result of this change, proposed
§ mil3{d)(4) has been deleted and
I 2G4,113(d)t5) has been renumbered
f 264.113(d)(3).
6. Permit Revisions (§ 264.113(d)(4)).
Under § 284.113(d)(5), the proposed rule
that the permit modification
include revisions to the affected
conditions of the permit, as appropriate,
to account for the management of only
non-hazardous waste in the unit
delaying closure. No comments were '
received on this section of the proposal
and the Agency is finalizing the
requirement as proposed. Because of
other changes to the proposal that have
resulted in a renumbering of some
sections, this section is being
promulgated today as § 264.113(d)(3).
2. Additional Requirements for Surface
Impoundments that do not Meet Liner
and Leachate Collection System
Requirements (§ 264.113(e))
The Agency proposed under
§ 264.113(e) additional requirements
' applicable to surface impoundments that
do not meet MTR liner and leachate
collection system requirements. These
additional requirements were
established to ensure that these units
are operated in a manner that is as
protective of human health and the
environment as surface impoundments
in full compliance with MTR.
All surface impoundments not meeting
MTR liner and leachate collection
system requirements must comply with
the requirements of both § 264.113(d)
and § 264.113(e). Comments received on
the proposed § 264.113(e) requirements
and the Agency's final position are
discussed below.
It must be noted that these units must
continue to comply with section 3005(j)
which explicitly prohibits non-retrofitted
surface impoundments from receiving
hazardous wastes after the November 8,
1988 retrofit deadline. Receipt of some
non-hazardous wastes also may not be
permitted in these units. Certain non-
hazardous liquids (e.g., electroplating
wastewaters) generate a listed :
hazardous sludge. In a June 30,1988,
Federal Register notice clarifying the
retrofitting requirements, .the Agency
stated that it interpreted the section
30050) requirement that receipt of
hazardous waste cease after November
8,1988 to mean "that no additional
hazardous wastes or waste that
generates a hazardous sludge shall be
placed in the unit (53 FR 24718)." In
order to remain in compliance with
section 30050), therefore, non-retrofitted
surface impoundments delaying closure
under today's rule will not be permitted
to receive a non-hazardous waste if that
waste generates a hazardous sludge.
a. Contingent Corrective Measures
Plan (§ 264.113(e)(l)). In addition to the
demonstrations and requirements
described in IV.B.l above, the Agency
proposed to require owners or operators
of surface impoundments that do not
satisfy liner and leachate collection
system requirements to include a
contingent corrective measures plan
with the request to modify the permit as
a condition of delaying closure, unless a
corrective action plan has already been
submitted. The purpose of the plan is to
ensure that corrective action c.an be
implemented quickly if a release Is
detected. Since the exact extent and
type of release will not be known, the
contingent corrective measures plan
should describe a range of possible
remedies for likely release scenarios.
The preparation of this plan does not
relieve the owner or operator from any
existing or future requirements of a
corrective action program or schedules
of compliance in a RCRA section 3008(h)
corrective action order or any other
order incorporating corrective action
requirements.
The Agency received only three
comments on this requirement. One
commenter stated that the requirement
is "overly burdensome", and duplicative
of corrective action provisions in
§ 264.100, and indicated that since
facilities delaying closure will still be
subject to the permitting process, a
separate mechanism for implementing
corrective action is not necessary. A
second commenter argued that the
amount of detail required for the plan is
beyond what could reasonably be
known prior to actually having a
release. Another commenter questioned
whether the corrective measures plan .
would include "meaningful corrective
measures."
The Agency is finalizing the
requirement of § 264.113(e)(l)(i) for the
contingent corrective measures plan as
proposed because of the importance of
ensuring'that surface impoundments not
meeting liner and leachate collection
system, standards continue to be .
managed in a manner most protective of
human health and the environment.
Requiring a contingent corrective
measures plan in advance of a detection
of a release will etfsure prompt
implementation of remedial measures to
prevent further contamination, contain
any existing contamination, and
remediate contaminated ground water.
In general, the Agency believes that this
plan can readily be prepared using the'
data submitted as part of the Part B
application (e.g., types of constituents at
the facility, hydrogeologic conditions,
location of ground-water monitoring
wells, and available remedial
technologies). In fact, some States
already require a contingent corrective
measures plan. •
Further, the Agency believes that the
measures required in the contingent
corrective measures plan will be
-------
Register / Vol 54, No. 155 / Monday. August 14r 1989 /Rules and Regulations 33387
"meanjngfiil"-and timely. The Agency ,,
believes that it js practical to anticipate
many of the actions that may be s ,;,
.necess.ary to remediate releases to -,..-.
gr,Qisn(j,wate,r..The:measures outlined in
the contingent corrective measures plan
will often be the same, types of measures
required under the full corrective action
plan. Among the measures discussed by
Jhe.Ageney.in the.preamble to the
proposed rule that might be included in
the plan were extrapolation of future
contaminant movement, a discussion, of
the likely contaminants of concern, and
a description of measures that can foe
installed guickly to address releases of
different types of constituents or
releases atT/ariable rates, and plumes of
different size and depth. In many cases
these actions will constitute interim
measures, such as alternate wa'ter ' ;
supplies, stabilization;and repair of side
walls, dikes, and liners, or reduction of
head. Such interim measures would
prevent arid contain releases and" • -.
complement any longer-term corrective
measures that may be required : • •
following a detailed evaluation. The
plan should also describe in detail the
range of corrective measures that might
be used, including the equipment and
physical components required. -
Finally, the owner or operator must '
address whether continued receipt of
wastes would impede the progress of
Corrective action and establish criteria
or milestones to ensure that substantial
progress in remediating the release is ,
achieved. As discussed further in
section IV.B.2.C.3 of today's preamble,
the owner or operator of a non-
retrofitted surface impoundment 'must
-cease'the receipt of waste upon ' ' '-: :
detection of release unless he has an "
approved contingent corrective i''"
measures plan which deiriohsfrates; that
continued waste receipt will not' impede
the progress of the required corrective
measures.''.'"" •-.'"•' " •
b. Alternatives.. .Today's final rule .'. -
requires owners or operators of surface
impoundments that do.not meet liner
and leachate collection system -...'-:
requirements to remove all hazardous
liquids and sludges to the extent
practicable as a precondition of
delaying closure to receive non-
hazardous wastes. As part of the
demonstrations required in the request
to delayi:closure,,an owner or operator -. .
must include a plan for complying with:
this waste removal requirement. Two:
alternatives originally proposed have ^!-;
not been finalized. The following section
: summarizes .the comments receiv.edi on
the alternatives and describes the; • r ,
' Agency's final position, , : ~.-.^^:^,-
{1} Alternative 1-^-Removal of -
Hazardous Wastes (§ 264.113(e)(2))> The
proposal offered ovyners and operators,
as a primary alternative, the option to
remove all hazardous; liquids and : -•:--'
sludges from the surface impoundment
•prior to receipt of non-hazardous \vaste.
This option appears in today's final rule
as Section 264.113(e}(2). This section
discusses comments received on this
option, as well as the applicability of the
mixture rule to. impoundments removing
hazardous wastes. ,
(a) Liquid and sludge removal Under
the first alternative, proposed as -" --"'-. ;
§ 264.113(e)(2](i), the Agency proposed
that an owner or operator of a surface
impoundment remove all hazardous
liquids and hazardous sludges, to the
extent practicable without damaging the
liner, from the impoundment prior to the
receipt of non-hazardous waste.1 In the
preamble, the Agency noted that for
unlined units (i.e., units with natural
clay liners), the hazardous wastes must
be removed down to the underlying and
adjacent soil. In addition, the proposal
specified that, in the event of a release
to ground water,, the facility would have
to comply with the corrective action ;
requirements of proposed § 264.113(e}(5)
and discussed in section IV:B.2.c below.
The Agency also proposed that
owners or operators choosing this
alternative remove hazardous wastes
(liquid arid sludges) no later than 90
days after the final receipt of hazardous
waste. Theproposal allowed the
Regional Administrator to approve a
request for a longer period of time based
on-need (e:g., due to adverse weather
conditions or specific operating •
practices), and on a demonstration that
an extension'would not pose a threatlo
human'health and the environment; The
deadline aiid criteria ;for requesting an
extension to the 98-day deadline in the ,
piroposal were consistent with the
current provisions in § 264.ll3(a) for
removing all hazardous wastes at" : ' ,
closure and for requesting an extension'•
to that deadline. .;
The Agency received one comment on
this proposed alternative requesting -,'-'-
clarification of whether natural clay- ;
lined units should remove the clay liners
along with the sludge. The requirement
to remove sludge from unlined units
"down to the underlying and adjacent
soil" excludes the liner in naturally-clay
1 The draft RCRA (Suidance Document,.
"Minunuin Technology Guidance on Stogie Liner
Systems for landfills. Surface Impoundments end
Waste Piles, Design, ConBtrucUon'antl Operation," !
issued May 24,1985, for example, suggests^that $..?;•.
minimum of13 inches of protecUve soil or'
equivalent is appropriate to protectiinets fri?in
damage when mechanical equipment is used to"
remove.gludge or contents of the impoundments;' " ••
luied units. RentbVal need only be' ;
completed to the clay; This clarification
does not affect the amount of materials
that may be required to be removed
from the unit at'the time of final closure.
No other comments were received and
the provision is finalized as proposed. '.
. (b) Relationship to the mixture rule. In
the preamble to the proposed rule, the
Agency discussed the applicability of
the "mixture rule" in the context of
owners or operators who treat wastes in
a series of surface impoundments. In
that discussion, the Agency stated that
in most cases, the mixture rule would
not apply because mixing of hazardous
sludge with non-hazardous influent
would be unlikely. Therefore, a non-
retrofitted surface impoundment
delaying closure under the proposed rule
could discharge' into a non^retrofitted
downstream surface impoundment,
because the discharged wastes $ouid
not be considered hazardous.-The '.:"...'
Agency receiyed several comments on
this interpretation of the "mixture rule."
(53 FR 207SO) While several commeriters
supported the Agency's interpretation,
other commenters argued that this
position-is inconsistent with previous
Agency interpretations. The commenters
who disagreed stated that when a non-
hazardous waste and a listed hazardous
^ waste are co-mingled and co-managed
in the same unit under any
circumstances, the entire mixture is .
considered a listed hazardous waste
and must be managed appropriately.
The Agency maintains that the
discussion of the mixture rule contained
in the preamble to the proposal is ,
consistent with, previous Agency
actions. The Agency'has consistently
interpreted the mixture rule not\o apply
where a non-listed waste is discharged
to a unit (i.e^ surface impoundment), ;
even if, that liquid generates a hazardous
sludge, unless the sludge is in someway
"mixed!* with the liquid (e.g., scoured as
a fesult.ofioperations in the unit). If the
Agency did not interpret the mixture
rule in this:manner, there would be no .
point in carefully limiting listings to
include sludges but exclude
wastewaters. The alternate mixture rule
interpretation suggested by several
commenters would make the
wastewater hazardous as soon as the
listed sludge was generated.
EPA believes that the opportunity for
mixing of hazardous 'sludges and '
hazardous liquids;from impoundments:
where all hazardous liquids and sludges
have been removed to the extent1 ; '.-
practicable as required by • ;•'• '••-'•••'•'• i
§§ 264.il3(e)f2};and 265.113(e){2) Will he-
minimal. Oppdrtrihities for mixing will"
be furthef diminished as additional rion-i
-------
33388 Federal Register / Vol. 54. No. 155 / Monday, August 14, 1989 / Rules and Regulations
hazardous sludge is generated. Were
any taMng to occur, it would be
confined to the liquid/sludge interface.
Levels of hazardous constituents
escaping from the hazardous sludge to
the non-hazardous liquid are not likely
to pose an appreciable risk to human
health and the environment. Should the
Impoundment be subsequently dredged
so tha| scouring or other physical mixing
occurs, the mixture rule would come into
affect. (This rationale is discussed
further In 48 FR 585B2, November 17,
1881).
Once all hazardous liquids and
hazardous sludges have been removed
to the extent practicable, free liquids
from such impoundments may be
discharged to non-MTR units because
the liquids would not be considered to
bo hazardous wastes. Additionally, as
discussed earlier, to remain in
compliance with section 30050), non-
iatrofitted impoundments wishing to
delay closure may not receive a non-
hii ardouf waste that generates a
hazardous waste or sludge.
(2) Alternative 2—Flushing Hazardous
WaBtes, The proposal offered owners or
operators the second option of flushing
or displacing liquid hazardous wastes
and removing hazardous sludges. For
reasons discussed below, the Agency is
not finalizing this alternative.
The proposed "flushing" alternative
{proposed § 264.113{e)(2)(ii}) would have
allowed an owner or operator to delay
closure of a surface impoundment
subject to § 264.113(e) if he removed the
hazardous sludges and also removed the
liquid hazardous waste and suspended
solids by flushing the unit with non-
hazardous influent until 95 percent of
the hazardous liquid had been removed.
In addition, the owner or operator would
have been required to demonstrate that
tho remaining liquid waste and
suspended solids did not exhibit a
characteristic of hazardous wastes as
defined in subpart C of part 261. Testing
for listed hazardous constituents,
however, was not required. The Agency
intended this alternative to apply
primarily to owners or operators of
biological treatment impoundments who
demonstrated that it would be infeasible
or impracticable to drain the
impoundment to remove all hazardous
wastes.
Comments received on this alternative
were varied. Several commenters argued
that the displacement alternative was
Inappropriate for impoundments
containing listed hazardous wastes and
recommended removal of hazardous
wastes to at least delisting levels. Other
commenters asserted that the Agency
was improperly allowing for dilution of
hazardous wastes as a substitute for
adequate treatment. Commenters in
favor of the displacement alternative
stated that the alternative is a
reasonable standard and would
eventually result in the removal of all
hazardous waste in the unit.
The Agency is concerned that many
commenters misunderstood the flushing
alternative, particularly the relationship
of the 95 percent volume displacement
requirements and the requirements for
delisting of hazardous wastes (40 CFR
260.22). The Agency may have
contributed to this confusion by
referring to testing for characteristics
only and by describing the mixture rule
only in terms of the interface between
the non-hazardous influent and the
sludge remaining in the bottom of the
impoundment. If the liquid itself is a
listed hazardous waste, the remaining 5
percent volume of that liquid would
continue to be hazardous waste.
Therefore, if an impoundment retained 5
percent liquid hazardous wastes, all
new non-hazardous influent would
become hazardous wastes as a result of
the "mixture rule," unless the original
hazardous waste was listed sdlely
because it exhibited one or more
characteristics and the mixture no
longer exhibited the characteristic (40
CFR 261.3). Therefore, while the
impoundment that removed 95 percent
of its liquid could delay closure without
retrofitting, if it discharged to another
impoundment downstream, the second
impoundment would be receiving
hazardous wastes and would therefore
be subject to the retrofit requirements in
RCRA section 3005(j).
Furthermore, in light of the
commenters' concerns, the Agency has
decided to re-evaluate this option. The
Agency is uncertain that the option to
delay closure is warranted for any
impoundment that retains up to 5
percent liquid hazardous waste. For the
reasons discussed above and in section
IV.A.1 of this "preamble, the Agency has
decided to delete this option from the
final rule. The Agency points out,
however, that owners and operators
who remove all liquids under
Alternative 1 may use flushing as a
removal method. The owner or operator
would have to demonstrate the complete
removal of hazardous liquids. Tracer
studies as described in the proposed
Alternative 2 (53 FR 20750), or modeling
studies may be used.
(3) Alternative 3—Leaving Hazardous
Wastes In Place. The third alternative
proposed in § 264.113(e)(3) would have
allowed owners or operators of
impoundments who intend to leave
hazardous wastes in place at closure to
delay closure under limited
circumstances. This option also has not
been finalized in today's rule. Because
hazardous wastes would not have been
removed prior to the receipt of non-
hazardous wastes, the Agency proposed
more stringent requirements for these
impoundments than for impoundments
at which hazardous wastes would have
been removed. This alternative would
have been available only to those units
that had not detected a release at or
prior to the final receipt of hazardous
wastes. In addition, if a release had
been detected after the final receipt of
hazardous wastes, the owner of
operator would have been required'to
initiate closure of the disposal
impoundment in accordance with the -
approved closure plan no later than 30
days after the detection of the release
and implement the corrective measures
specified in the .contingent.corrective
measures plan no later than one year
after the release had been detected.
One commenter recommended that
impoundments which have not removed
hazardous wastes (impoundments using
proposed Alternative 3) not be allowed
to delay closure. This commenter felt
that these impoundments are more likely
, to leak and would pose an excessive
threat to human health and the
environment. As discussed in section
IV.A.l above, the Agency is not
finalizing this alternative. Upon
reconsideration, the Agency has
determined that surface impoundments
from which hazardous wastes are not
removed present a greater threat of
release of hazardous constituents.
Therefore, these impoundments cannot
remain open to receive non-hazardous
waste and achieve the Agency's dual
goals of release prevention and
protection of human health and the
environment. The Agency believes that
only the closure of these surface
impoundments will provide" adequate
protection.
c. Corrective Action Requirements
(§§ 264.113(e) (4) and (5)), Under the
proposed rule, units that delayed closure
would remain subject to all applicable
part 264 corrective action requirements.
In addition, surface impoundments not
meeting the liner and leachate collection
system requirements would be subject
to more stringent requirements in the
event of a release. The following section
summarizes the comments received and
the Agency's final position on the
proposed trigger for corrective action,
reliance on ground-water monitoring
data to detect releases, and additional .
corrective action requirements
applicable to surface impoundments not
meeting liner and leachate collection
system requirements.
-------
Rules and Regulations 33389
--
Q),Corrective,Action Trigger
(§§&4.li3(e)(4)). The Agincyprojpogeit V
in §§ 264;il3Ce)(5);'(6), (7); and (iB) tjfjat-';'
surface impoundments not meetingTmer
and.leachatecoliectibn system .; ;
requirements implement corrective
measures (and'close* if wastes have •; '•
been left in place) if contamination' is
detected. Detection occurs when, there is
contamination that is statistically
greater than (or less than in the case of ,
pH) background levels for detection
monitoring parameters or hazardous ;
constituents specified in the permit, pris
in excess of the GWPS, if one has been
established, at the point of compliance.
(For more information on the Agency's :
final Ground-Water Monitoring
Statistical Rule, see October 11, 1988, 53
FR 39720.) • : ;: ••' •
A number of commenters disagreed
With these 'requirements and argued that
facilities should-be allowedto establish
a GWPS before'corrective measures are ;
required to be implemented. These
commenters contended that the - •
proposed trigger for corrective action
(and closure for impoundments that ••
have left waste in place) would be too :
sensitive and that temporary. "
fluctuations in the levels of hazardous
constituents would trigger unnecessary
corrective action (or closure). One
commenter requested clarification of the
manner in which a background level
would be established..
After consideration of the
commenters' recommendations, the
Agency has decided to retain the
cprrective action trigger as originally
proposed.: (Because the Agency is not • -' - -
finalizing proposed Alternative 3, the .
corrective action trigger no longer acts •
as a closure,trigger for surface, I-'j ..<; .•";';_-
impoundments .thathave not removed-.
hazardous wastes- as a condition of. . ;
delaying closure.) However, .because the
corrective action requirements have
been modified somewhat (see section •
IV.B.2.C.3), these requirements have .'.
been renumbered and promulgated in
§ 264.113(e)(4). .:,/ ,: \.-. ...'. ;
The Agency believes that the trigger
for corrective action is a necessary . • •
element of today's regulations. The-..'
delayed closure regulations.will allow
non-retrofitted surface impoundments to
remain open after November 8,1988;(as ."...
well as those; surface impoundments , ..
which become subject to section ..
3005(jKl) after the date of enactment of
HSWA due to the promulgation of
additional listings or characteristics for'-.":
the identification of .hazardous .waste
under section 3001), and ,the ;-'--,'",
requirements must 'therefore;prpvl'dev;:l :'.{
sufficient continued protection of health ,
and the'environment. The Agency has, :
provided for this protection through
strict eligiBdlity and operating criteria .
and more, stringent corrective measures
provisions, including requirements for
the submission of a contingent.
corrective measures plan and ...
implementation of corrective, action if a
relea3e over background levels is
detected at units without a GWPS,
The Agency does not believe that -
allowing units without a GWPS; to
obtain one before requiring corrective
action will provide adequate protection
since a delay in remediation of a release
that might occur if corrective measures
were not implemented until after a;
GWPS was obtained could pose an
additional threat.'Modeling data
comparing the relative performance of
clay liners and synthetic liners
satisfying the liner and leachate. ;
collection system requirements suggest
that-a non-retrofitted surface .
impoundment may have releases that
are faster and larger than from a surface
impoundment meeting the liner arid,
leachate collection system requirements.
Therefore, it is critical that releases from
units not meeting liner and leachate
collection system requirements be
addressed as quickly as possible. The
requirements for a Contingent corrective
measures plan combined with the more
sensitive trigger will ensure prompt
release containment and remediation.
It should be noted, however, that an
owner or operator who has filed a Part B
permit application may request a GWPS
at any time before or after corrective
measures have been initiated. A facility .
may request and obtain a GWPS in
advance of a release during the permit
•approval process, or at the time that;the
release is detected. The Regional
Administrator, in § 264.91(bŁ has the
authority to include! in'the facility permit
a combination of subpart F monitoring
and response programs in order to
protect human health and the
environment. This provision gives the;
Regional Administrator the discretion to
set a GWPS before a release has
occurred. The GWPS can be established
'at background or maximum contaminant
levels, or.at alternate concentration .
limits on a case-by-case basis. Alternate
concentration limits set at acceptable
health exposure levels using Agency
values should not be difficult to
establish prior to a release being
detected.
If no GWPS has been established, the.
Agency will continue to require that .
initial corrective measures,be''. ...-. -
implemented in, accordance with the -. ,
Contingent corrective measures plan
after a release oyer background levels is
detected. Background levels are to-be
determined as .described in §§264.97 ..:
and 265.91.; The Agency recognizes ;that
in some circumstances a release over
background levels may not require, .
extensive corrective measures. If a
GWPS is established in accordance with
the procedures in § 264.94 during or after
interim measures have been :
implemented, an owner or operator will
be allowed to demonstrate that no
further corrective action measures are
necessary. Finally, it is noted that these-
requirements are anticipated to be
consistent with forthcoming changes to
40 GFR srtbpart F. The delayed closure
provisions may be amended at a later
date to account for these new subpart F •
provisions.
(2) Oilier Media. "The proposed rule
required that EPA base the initial
determination of.whether expedited
corrective action is required at surface
impoundments'subject to the
requirements of § 264.113(e) on ground-
water monitoring data.The unit, .
however, would remain subject to all
corrective action requirements for all-
media. The Agency requested comments
on this approach and whether other,
options may be appropriate.
One commenter agreed with the
proposal and noted that it is consistent
with the Agency's approach to all
regulated land disposal units; •
Furthermore, the use: of ground-water
monitoring data should be adequate to
detect most releases to other media.
Another commenter, however, asserted
: that reliance on ground-water '
monitoring alone is inadequate because
results maybe affected by poorly placed
wells an:d local hydrologic conditions
that control plume migration. This
commenter also felt that contamination
, to media other than ground water may '".
not be expeditiously detected.
The Agency continues to believe that
ground-water monitoring is an adequate .
• tool for determining whether the
accelerated corrective action
requirements of today's rule are ;
necessary for releases to ground water.
The provision of § 264.113(e)(5) and (6)
.has been finalized as proposed. Ground-
water monitoring has been traditionally
"and successfully used to monitor
.contaminant detection and plume
migration. Forthcoming corrective action
regulations will address releases to all
other media. The provisions in today's
rule supplement existing and any future
regulation addressing corrective action .
requirements for all media. ,
(3)Additional, CorrectiveMeasures, •.
Requirements. The Agency's proposal
included additional corrective measures,,
requirements that would apply to , :
surface impoundments not meeting liner.
-------
S8S90 Federal Register / Vol. 54, No. 155 / Monday, August 14, 1989 / Rules and Regulations
and Icacha'.c collection system
requirements and whicli have removed
{or will remove) hazardous waste In
order to delay closure. The proposed
requirements differed, depending on
whether a release had been detected
before or after the final receipt of
hazardous wastes. Under the proposal,
units found to be leaking at or prior to
the final receipt of hazardous wastes
would be required to cease the receipt of
all wastes until corrective measures
have been implemented (| 204.113{a)(5)
and (6)). Units found to be leaking after
the final receipt of hazardous waste
could continue to receive non-hazardous
WMte only if corrective measures were
implemented within one year of the
detection of a release, and if continued
receipt of the non-hazardous waste
would not pose a threat,to human health
or the environment (1264.113(e){7)). The
Agency requested comments on whether
the requirements should differ
depending on the timing of the release,
and on the one-year deadline for
implementing the corrective measures.
Some argued that the Agency
provided no justification for imposing
stricter requirements on owners or
operators who detected a release at or
prior to the final receipt of hazardous
•waste. Others contended that ceasing
receipt of waste until corrective
measures are implemented would be ,
unduly disruptive to facility operations.
Nearly all comments on this issue
recommended that the same corrective
action requirements apply in cases-of
releases detected before and after the
final receipt of hazardous waste. Two
commcnlcrs recommended that all
surface impoundments with releases,
regardless of when the releases were
detected, be required to cease the
receipt of wastes until corrective
nieasurcS are implemented. Another
cotnmenter recommended that tiie
Regional Administrator be allowed to
grant one-year extensions to the
proposed deadline for implementing
corrective measures on a case-by-case
basis.
The Agency has carefully considered
the cotnmenters' suggestions, and has
decided to modify the requirements
applicable to the continued receipt of
wastes after the detection of a release.
The final rule under § 2M.h3(e}{5]
allow* the owner or operator to
continue to receive wastes after
detection of a release, regardless of
when the release is detected, only in
those cases where a contingent
corrective measures plan (or full
corrective action plan) has been
approved. In addition to a description of
the corrective measures to be
implemented, if receipt of wastes is to
continue, the plan must fully .account for"
the impact of receipt of non-hazardous
wastes on corrective measures by
demonstrating that continued receipt of
wastes will not adversely affect the
implementation of corrective measures
and the achievement of substantial
progress in achieving the facility's
GWPS. The Agency believes that these
effects must be considered before
receipt of non-hazardous wastes is
allowed. Once EPA has approved the
contingent corrective measures plan that
demonstrates that continued receipt of
non-hazardous waste will not adversely
affect the progress of the corrective
action, receipt of non-hazardous wastes
may resume.
As stated in the preamble to the
proposed rule, the Agency continues to
believe that temporarily ceasing receipt
of wastes until corrective measures have
been implemented should not be overly
disruptive to facility owners or
operators. Many units will have already
triggered compliance monitoring and/or
be engaged in corrective action under
Subpart F. Therefore, in those cases
where waste receipt must be halted,
there should not be an extensive delay
in implementing corrective action and
allowing the unit to resume receipt of
wastes. The Agency also anticipates
that since these units have detected
releases, they will receive priority in
obtaining approval for corrective action
plans.
The Agency is finalizing the one-year
deadline for implementing corrective
measures under § 264.113(e}(4) as
proposed. The Agency believes one year
from the time of release detection or
plan approval whichever is later, is
sufficient time to begin implementing
corrective measures. As discussed in the
preamble to the proposed rule (53 FR
20752), the Agency intends that actual
containment or remediation measures
be implemented within one year. The
actions required to be accomplished.
within this one year will be negotiated
during the corrective measures approval
process. In addition, the Regional
Administrator has the option to require
implementation of corrective measures
earlier than one year after a release is
detected if necessary for the protection
of human health and the environment.
Established procedures for adjusting
such permit schedules of compliance
will be available. Therefore, specific
authority to allow the Regional
Administrator to grant extensions is
unnecessary and could lead to
unacceptable delays in closing a unit
should the owner or operator fail to take
timely action to initiate the
implementation of remedial action.
d. Evaluating the Progress of.
Corrective Action (§§ 264.113(e} (5), (6),
and (7)). The proposed rule required
owners or operators to demonstrate
"substantial progress" in implementing
corrective .action and achieving the
facilities' GWPS or background level if
the facility has not yet established a
GWPS. If the Regional Administrator
determined that an owner or operator
had failed to make substantial progress
in implementing the required corrective
measures, the owner or operator would
be required to initiate closure of the
leaking unit (§ 264.113(e)(10)). The •
proposed rule did not define
"substantial progress" because the
Agency believed that the determination
should be made on a case-by-case basis,
In the preamble to the proposal,
however, the Agency-did provide
examples of situations that illustrated a
failure to make substantial progress.
Examples included failure to comply
with the requirements of section (e)(5)
, for implementing corrective measures
within one year .or subsequent failure to
comply with significant deadlines in the
approved corrective measures plan,
schedule of compliance, the permit, or
other enforcement orders establishing,
timeframes for achieving the facility's
GWPS. The Agency also specified that
semi-annual corrective action progress
reports required under § 264.113(e)(9)
would be considered in making the
determination, but that compliance with
only these procedural or reporting
requirements.would not alone constitute
substantial progress.
The proposed rule also established an
accelerated set of procedures for
initiating closure under § 264.jL13(e){ll),
The procedures included notification of
the owner or operator, public notice of
the decision, and a 20-day comment.
period. These proppsed procedures did
not allow administrative appeals of final
decisions regarding closure.
Several commenters expressed ,
concern that the term "substantial .
progress", was too vague and subjective.
One commenter' felt that hearings should
be allowed to determine whether
substantial progress has been made.
Another commenter.recommended that
the Agency allow administrative ,
appeals of decisions to require closure.
The Agency has considered the
commenters' recommendations,, but
continues to believe, that a specific
definition of "substantial progress" is
both unnecessary and undesirable.
Establishing a rigid standard of [
substantial progress would prevent a
Regional Administrator from
-------
federal Register /Vol. -54. No. 155
/ Rules and Regulations 33392
considering site-specific factors iri the
determination of whether progress in -"•:.'
corrective action is being made; Because
corrective action measures are tailored v
to specific sites, this lack of-flexibility
could result in a standard that in some v
cases is inadequately protective of :
human health and the environment, and
in other cases is unnecessarily
burdensome to owners and operators.
The Agency believes that its description
of actions considered to constitute
substantial progress provides adequate
guidance to both owners and operators
and Regional Administrators. EPA notes
that, while commenters were ------
dissatisfied that a definition of
substantial progress was not included in
the rule, they did not suggest alternative
definitions. Therefore, the Agency is.
finalizing the rule as proposed (with the
reporting requirement and substantial
progress requirement renumbered as
§ 264.113(e) (5) and (6)). , ,:
Finally, the Agency has retained the
expedited procedural requirements in '
§§ 264.113(e)(ll) and 265.113(e)(ll} for
determining whether substantial ,
progress has'been achieved -
(renumbered as §§ 264.il3(e)(7) and
265.113(e)(7) for the final rule). The .
Agency continues to believe that these
procedures afford owners arid operators
adequate protection of any due process
rights and that hearing and ~~
administrative appeals are neither
appropriate nor required. The objective
of the procedures is to reduce delays in
initiating closure, while still providing
owners and operators and the, public
with notice and comment opportunities.
As discussed elsewhere in today's
preamble, the requirement to implement
effective corrective measures in the.-.
event a release is detected is an
essential component of the controls-- •
imposed on surface impoundments not
meeting the liner arid leachate collection
system requirements. EPA believes that
the harm potentially caused to human
. health and Jhe environment by :
impoundments unable to promptly "
remediate releases outweighs any
potential burdens imposed on owners
and operators. Furthermore, it must be
remembered that owners and operators
are not authorized generally under this
rule to delay closure; rather the
authorization to delay closure is an . '.,'•'
exception to the general SubpartG
requirements and is expressly
conditioned upon meeting the
substantial progress demonstration
when and if applicable. Although this
provision is itself self-implementing and
need not be accompanied by further • '
notice and comment opportunities, the
Agency has afforded such an
opportunity through the procedures in
§ § 264.113(eH7) and 265.113(e)(7). The
: further delay that might result from a
hearing provision or administrative
appeals cannot be justified in light of the
importance of timely response actions.',
Nor would such additional procedures
•be likely to present any information for
decisionmaking that could not be
provided by notice and the opportunity
to provide written comment.
In addition, with respect to permitted
facilities, receipt of approval for this
action and establishment of specific
milestones defining "substantial
progress" are determmed through a
permit issuance or modification process.
This administrative process includes all
procedural protections necessary to
meet statutory and Constitutional
requirements. Thus, a conditional "
authorization to delay closure as a .
permit provision and the automatic
expiration for failure to comply with the
permit requirement to make substantial
progress in remediating releases will
have already been subject to notice and
opportunities for comment and
.administrative appeals. Accordingly,
further process is unnecessary.
•To provide analogous procedural
protections for facilities which may still
be in interim status at the time of the
Regional Administrator's determination,
parallel procedures appear in
§ 265.113(e){7). As with permitted
facilities, the conditional authorization
to delay closure is also accompanied by
an opportunity for notice and comment.
This occurs through the procedures for -
closure plan approval or modification in
§ 265.112(d). Accordingly, further :
procedures such as.hearings and
administrative appeals are not ' • ••• •"•
necessary and have not been added to
the final rule.
3. Notification of Closure
(§ 264.112fd)(2JJ. The proposed rule -. "-•
amended § 264.112(d)(2) to specify that
for units delaying closure, the "expected
date of closure" is no later than 30 days
after the final receipt of non-hazardous •-
wastes. No comments were received on
this proposed change/and therefore the
final rule is promulgated as proposed.
C. Part 270 PermitModification
Requirements (§270.42).The proposed •
rule designated the request to modify
the permit to delay closure to receive
non-hazardous wastes a'fter the final
receipt of hazardous waste as a Class 2
modification, in accordance with the1 -
recently finalized rule establishing three:
classes of permit modifications' •-,:
(September 28,1988, 53 FR 37912). ' :
Two commenters recommended that
permit modifications to delay closure be
considered Class 3 modifications rather
than Class 2 modifications. One
commenter felt that the time allowed for
submitting the request to modify the
permit under § 264.113(d), or for
submitting a part B or revised part B "
application under § 265.113(d), is
unrealistically short considering the
amount of information to be included in
the requests. Another commenter
suggested that specific criteria be
ideritified as riecessary to support a
Regional Administrator's denial of a
request to delay closure. Another
commenter recommended that time be
allowed for a facility to construct an
alternative waste management unit for
closure if the Regional Administrator
denies the request to delay closure.
Finally, one commenter suggested that
an owner or operator be allowed to
receive non-hazardous waste during the
time the permit modification is being
reviewed. • •
The Agency has taken these
comments into consideration but has
decided to promulgate the final rule as
proposed. Class 2 modifications are
defined as modifications in the types
and quantities of waste managed under
• the facility permit, including
authorizations to treat or store new
wastes that do not require different unit
design or management practices (53 FR
, 37915). Delaying closure to receive only
• non-hazardous waste does not change
the basic purpose and use of the unit but
only alters the type of waste being
managed (wastes will continue to be
regulated under the subtitle G permitting
requirements). Furthermore, the Class 2 .
modification allows the Agency to ,
require that the major permit
modification procedures be followed if ;
the proposed change raises significant
interest or concern (40 CFR 270.42(b)).
Therefore, the Agency believes that
, classification of the permit modification
as Class 2 is adequate. It should be-
noted that, in those States which have
not adopted the new permit
modification classification rule, a permit
modification to delay closure will be
considered a major modification.
The Agency also believes that the
amount of time allowed in the proposed
rule .{§ 264,113(d)(3)) for submitting
permit modification information is
adequate. These timeframes are
consistent with the current timeframes
for submitting permitting and closure
plan information (40 CFR 270.42(b)). In
addition, most changes that must be
made to the permit or permit application
are not substantial and therefore should
not require additional time to complete.
•.' The Agency does not believe that
specific criteria need to be established
to support the Regional Administrator's
-------
33J92 Federal Register / VoL 54. No. 155 / Monday, August.14..1989 7 Rules'
decision to deny a request to delay
do*are. Therefore, no changes to the
final rule have been made. As discussed
In section IV-BAd Of today's preamble,
lh« requirement to close in accordance
with an approved closure plan ia subject
to judicial review. Additionally,
facilities must submit an amended part
B application or a request for a permit
modification. The denial of either is
subject to the administrative
requirements provided for in 40 CFR
Part 124, Finally, for interim status
facilities, the extension of the closure
period Is generally processed together
with closure plan approval. The closure
plan approval process includes an
opportunity for comment by the owner
or operator {see 1264.112{a)). Such
txistlng procedures provide the owner
or operator with ample opportunity to
rertfew (he basis for the denial decision.
Furthermore, tha Agency does not
believe that additional time should be
allowed to construct alternative units fo
handle wastes if the request to delay
closure is denied. {The delay of closure
option Js an exception to general closure
requirements and extends closure
Umefrnmet only temporarily.) Owners
and operators of facilities will have had
adequate nolle® that their units will
h«va to done, and therefore will have
had time to plan alternatives in the
event that the permit modification is
dented.
Finally, the Agency wishes to clarify
that non-hazardous waste may be
received during the time when a
permitted facility's permit modification
to delay dotura is tinder review. As
discussed in the preamble to the
proposed rule, interim status units
would be allowed to receive non-
hazardou* waste while the Agency
reviewed tha part B application (with
certain exceptions for surface
impoundments as discussed in section
fV.B.2,c3' Similarly, it was intended that
permitted facilities that are awaiting the
Agency's decision on their permit
modification to delay closure be allowed
to receive non-hazardous waste during
this period of Agency review. In either
case, facilities must continue to comply
with all applicable subtitle C
requirements to ensure continued
protection of human health and the
environment,
D, Cattfoming Changes
The Agpncy proposed conforming
changes to the interim status standards
to part 265 that parallel the technical
requirement* In part 2B4 for delaying
closure to receive only non-hazardous
waste. The interim status requirements
are substantially the same as those for
permitted units. These requirements
have been finalized incorporating
changes parallel to those discussed
above for permitted units. This section
addresses only those comments or
regulatory changes unique to the part
265 requirements.
1. Conforming Changes to Part 265
Interim Status Requirements
The sections below describe
comments received on the proposed
conforming changes to part 265 interim
status requirements, including eligibility
of interim status facilities to delay
closure, ground-water monitoring and
corrective action implementation, and
eligibility to delay closure of units
receiving Interim status as a result of
new regulations.
a. Eligibility. The proposed rule would
allow owners or operators of interim
status facilities to remain open to
receive nonhazardous waste if they
meet the requirements of § 265.113 (d)
and (e), if applicable, including
submission of a part B application'or a
revised part B application. Part B
applications are required because the
Agency does not believe that a facility
should be allowed to remain Open to
receive non-hazardous waste while
remaining indefinitely in interim status.
During the period prior to receipt of the
permit, the owner or operator must
comply with applicable requirements in
§ 285.113 (d) and (e), if applicable, and
continue to conduct operations hi
accordance with all other applicable
part 265 requirements. The Agency
believes that the criteria in § 265.113(d),
combined with the technical and any
other requirements of part 265 for
delaying closure, are sufficient to
preclude any increased threat to human
health and the environment during the
permit review period. If the permit is
denied, the part 265 closure
requirements become effective
immediately.
One commenter requested,
clarification of whether interim status
surface impoundments that had chosen
to close (in lieu of obtaining a permit)
would be allowed to delay closure. The
Agency would allow such units to delay
closure if they meet the criteria of
§§ 265.113(dJ and265.113{e), if
applicable, including submission of a
part B permit application. If the unit is in
the process of closing, Agency approval
to delay closure would depend on how
far along the unit is in the closure
process. Since many of the closure
activities (e.g., the removal of waste) are
compatible with the requirements for
delaying closure, requests to delay
closure could, in some cases be
considered. If the surface impoundment
has certified clean closure, and its
interim status is subsequently
terminated, it could receive non-
hazardous waste as a Subtitle D facility
following closure and would not need to
avail itself of today's rule. However, if it
is to be closed with hazardous waste in
place and the unit has already been
capped, the cap may only be disturbed
under the conditions specified in
§§ 264.117(c) and265.117(c). This
provision requires that the Regional
Administrator find that the disturbance:
(1) Is necessary to the proposed use of '
the property and will not increase the
potential hazard to human health or the
environment; or (2) is necessary to
reduce a threat to human health and the
environment
b. Ground-Water Monitoring and
Corrective Action. The Agency
proposed that the corrective action
requirements in § 265.113(e) applicable
to non-retrofitted surface impoundments
be triggered by a statistically significant
increase in hazardous constituents over
background levels (or decrease in pH
levels) for interim status facilities that
have not yet established a GWPS. Units
not in compliance with liner and
leachate collection system requirements
are subject to accelerated corrective
action requirements consistent with
§ 264.1l3(e}(8) requirements.
Several commenters objected to the
provisions allowing interim status units
to delay closure. These commenters
argued that interim status ground-water
monitoring requirements do not
sufficiently-protect human health and
the environment because they do not
accurately detect hazardous waste
releases. These commenters also argued
that corrective action provisions for
interim status facilities under delayed
closure are inadequately protective of
human health and the environment
because there is no regulatory authority
to trigger corrective action.
The Agency believes that the
requirements of § 265.113 (d) and (e) in
combination with the other applicable
part 265 requirements are adequately
protective. These provisions require that
units in interim status must apply for a
permit as a condition of delaying
closure, and that upon permit issuance
these units will be subject to the stricter
part 264 requirements for ground-water
monitoring. Additionally, owners or
operators of surface impoundments that
do not meet MTR liner and leachate
collection system requirements who
wish to delay closure must comply with
corrective action requirements specified
in § 265.113(e) even in the absence of a
RQRA § 3008{h) order. Further,
contingent corrective measures plans
-------
' 3:55
, 3989
Units. The Agency prqpflsfidithat.tbie
option to.delay closure :be made
re vised ipant,B .applications .would »be
, adequate Tjecause fhessjawnarsjor
operators would be given sufficient
notice that they will , become subject to •
..
One •commenterTe0orameadeS*fhSt '
the.delay xif Tflosurei.cjjiion'be avaJlaHLe
to -owners -or xspera'tors df uriftStfliatJisye
become 3dlaBsffiea»asJhazarflous waste
mattajgemeiibunfts asiaiesHft'oY
reguia'tBiyiHterpre'tationJby'fhe'EPA.a.s
discussed above, this is allowgaif She :
unit jireefts "QTBareguiremEnts o'f ^ 265333
;' '
fina'llzefl asjprqposed.
V. State Autkorization
A.
States
within Jhfi.Stata !Sa
dards and
Requirements for autbQEiKa
..
au thoEizad S.ta tes ihave palmary
authonizatiori,jBCElminis,teredits
hazar^us, waste jpE.QgEamientiEfi}y,in
lieu o'f EPA' administering the;i^edeial
whete »the^S.tatejM?as fluthonized to
permit. When new, more stringent
or^snactad, ihe.State jams ^b
enactsagiii^ent-BHth
specffififl time .feam.es.
RCRA, 42TJ.S.C. 6926(g), new
tfiguiienients .and jHabibitions drnposel
by melHSWA ttake^Ifect JinajahiaBizad
States Atlkeaaamfiaimfi.fhat,tkeyitake
effect iri,nori-aufliorizedS.tates.JEEA;is
and jpioTubitioHslin auihorized,Statfis.,
iriclucling.fheassEanae jif jpermils, auitil
the StateIs^raated.ati{koj;izatiDHi6>do
so. While Statessmiiat.sJill.adopt '••••'.'
to rŁtamJiiM;auitori2aU^
jequiremesits and jproaibitinns -apply in
authorized StAtss.iattheiMejiim. -:
B. ^
that reaeiMeaHteiainiatatus.fl8iflbEB&utt,Qf .
Dfi.wj;egulaMmis. JEhe.4senqy iadifiated
'in fhejpieanffilBitD Ike pioposed jule lhat
'
States sinceithe EBguirements.aEeJi.0t
imposea^uraiianltoilSWA. Thug, the
requirements .Willihe^pJliBaHfi janlysia
those States .fliat,Eo,n(xt taKe aiiterdm, or
luililihe.BtatejiesdsesJtsprQgramlo
adopt equlv.dlentJsegiiiEeinents under.
Slate law. . ,
aufhofizaitonttp jnodify thBir-prjograms -
to reflect "Federal pjogram.changesand
to subsequently submit the
modifieationstolEPASGr 4pjiroyjal.lt
shoutd''be.3io'te4, 'however, *&al
auttibrizefl 'Btattes :ar.e jjrily.iEquirBdto •
modify theirprograms when ^PA
promulgates 'Federal'standards'aiBLtaEe
more stringent otbroader in scope than
3009 of RGRA allows States to impsse
f aie
modify ffieirpEojramspse 40 GES
ra§uiijem!8ats. (
States «.aEe amtfcegtiked'te imadify rtheir
prqgrams
"
.
the priEwM
State does miadifyats!pEQg3Sam,:EM.
must apjjrovs itkeanadifisaficaiiferithe
••State requirements to feecomersubiitleC
RCRA requirements. States should
follow the d:esdline3t.af-S§!CE8.
addptilhis
"
Office of Managemeat-aadfludgst'for
review as requiredtby Executive Order
12291. Hheiregulatary amfindmentstbreing
. promulgatedSoday 5ar^-das|gned to
reduce the:iumiea.QfttheiRGRA
regulatioi3[BfflHd«Ee
-------
83394 Federal Register / Vol. 54, No. 155 / Monday, August 14, 1989 / Rules and Regulations
2, In § 204.13 is amended by revising
paragraphs (a)(l), (a)(3)(i), and (b)(l) to
rend as follows:
§ 264.13 Genera] waste analysis
(a)(l) Before an owner or operator
treats, stores, or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 264.113(d),
he must obtain a detailed chemical and
physical analysis of a representative
sample of the wastes.
« * « * *
(3) The analysis must be repeated as
necessary to ensure that it is accurate
and up to date. At a minimum, the
anaiysls must be repeated:
(i) When the owner or operator is
notified, or has reason to believe, that
the process or operation generating the
hazardous wastes, or non-hazardous
wastes if applicable under § 284.1l3(d),
has changed; and
t, t * * * •
W " * *
(1) The parameters for which each
hazardous waste, or non-hazardous
waste if applicable under § 2Q4.113[d),
will be analyzed and the rationale for
the selection of these parameters (i.e.,
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
• * * * «
3, la i 264.112, is amended by revising
paragraph (d)(2) to read as follows:
§284.112 Closure plan; amendment of
(d)
(2) The date when he "expects to
begin closure" must be either.
(!) No later than 30 days after the date
on which any hazardous waste
management unit receives the known
final volume of hazardous wastes, or if
there is a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, no
later than one year after the date on
which the unit received the most recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
management unit can demonstrate to the
Regional Administrator that the
hazardous waste management unit or
facility has the capacity to receive
additional hazardous wastes and he has
taken all steps to prevent threats to
human heajth and the environment,
including compliance with all applicable
permit requirements, the Regional
Administrator may approve an
extension to this one-year limit; or
(H) For units meeting the requirements
of § 2S4.113(d), no later than 30 days
after the date on which the hazardous
waste management unit receives the
known final volume of non-hazardous
wastes, or if there is a reasonable
possibility that the hazardous waste
management unit will receive additional
non-hazardous wastes, no later than one
year after the date on which the unit
received the most recent volume of non-
hazardous wastes. If the owner or
operator can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous wastes and he has taken, and
will continue to take, all steps to prevent
threats to human health and the
environment, including compliance with
all applicable permit requirements, the
Regional Administrator may approve an
extension to this one-year limit.
* * * * - *
4. Section 264.113 is amended by
revising paragraphs [a) introductory
text, (a)(l)(ii)(A), [b) introductory text,
(b)(l)(ii)[A), and (c) and adding
paragraphs (d) and (e) to read as
follows:
§ 264.113 Closure; time allowed for
closure.
(a) Within 90 days after receiving the
final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all
applicable requirements in paragraphs
(d) and [e) of this section, at a
hazardous waste management unit or
facility, the owner or operator must
treat, remove from the unit or facility, or
dispose of on-site, all hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator complies with all applicable
requirements for requesting a
modification to the permit and
demonstrates that:
(1) * * *
(ii)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the owner or
operator complies with paragraphs (d)
and (e) of this section; and
*****
[b) The owner or operator must
complete partial and final closure
activities in accordance with the
approved closure plan and within 180
days after receiving the final volume of
hazardous wastes, or the final volume of
non-hazardous wastes if the owner or
operator complies with all applicable
requirements in paragraphs (d) and (e)
of this section, at the hazardous waste
management unit or facility. The
Regional Administrator may approve an
extension to the closure period if the
owner or operator complies with all
applicable requirements for requesting a
modification to the permit and
demonstrates that:
(1J * * *
(ii) (A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the owner or
operator complies with paragraphs (d)
and (e) of this section; and
* * * * *
(c) The demonstrations referred to in
paragraphs (a)(l) and (b)(l) of this
section must be made as follows:
(1) The demonstrations in paragraph
(a)(l) of this section must be made at
least 30 days prior to the expiration of
the 90-day period in paragraph (a) of
this section; and
(2) The demonstration in paragraph
(b)(l) of this section must be made at
least 30 days prior to the expiration of
the 180-day period in paragraph (b) of
this section, unless the owner or
operator is. otherwise subject to the
deadlines in paragraph (d) of this
section. - • .
(d) The Regional Administrator may
allow an owner or operator to receive
only non-hazardous wastes in a landfill,
land treatment, or surface impoundment
unit after the final receipt of hazardous
wastes at that unit if:
(1) The owner or operator requests a
permit modification in compliance with
all applicable requirements in parts 270
and 124 of this title and in the permit
modification request demonstrates that:
(i) The unit has the existing design
capacity as indicated on the part A
application to receive non-hazardous
wastes; and
(ii) There is a reasonable likelihood
that the owner or operator or another
person will receive non-hazardous
wastes in the unit within one year after
the final receipt of hazardous wastes;
and
(iii) The non-hazardous wastes will
not be incompatible with any remaining
wastes in the unit, or with the facility
design and operating requirements of
the unit or facility under this part; and
(iv) .Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and
(v) The owner or operator is operating
and will continue to operate in
compliance with all applicable permit
requirements; and,
(2) The request to modify the permit
includes an amended waste analysis
plan, ground-water monitoring and.
response program, human exposure
assessment required under RCRA
-------
. .0:55 >l Monday a
, 1989 ,f Sutes SBillRBjuiaif OIKS - . ;
,^^,. , -,, .._^_.-._.. " "
seetiniiMms^adoBarajBhagEisi-' .
closur'e plans, and updated cost
; estimates and demonstrations »pf
financial ^LSsuEance Jo:
^closure
appropriate;'
to thsipreAenGesjfthazaEdkus
coHRtitueais Jnvfhs JKHH
wasifis,, .and cchaaig.es in
activitiaa, fiacludii^
.»,
prior to lhe\dateson SHhHJhifheiosKner^or
operator of fheTacility receives the
known final volume. of hazardous ;
wastes at thejinit, or,no later thahao
days altertflre effec|iye.€aa:e dfth'tSTOle
ih^the sttfte-m^^iclithB unit;|sioca'te9,
whicheverls'hrter., ', , ,'
(e^'in •aa^Mon to fteTegraremerits in
paragraph^ dj -df this 'section, -an uwner
oropBrettarjrffsa'hazaraotiB-waste ,,
surface impoHnirnierft ft^,iB:iioti
^compliance with
quiremerttsan Ł2
)'or 42
• (4) or-{18) mast:
(i)
thepermit:
(i)
plan, unless a corrective action^lanlaB
alreaay%een'siibm'fited>aHdBr'§ 264:99;
and .--'-.. .' .: '• '"•••'•'.••' ..'." /' -•.•...."•; ..:'-.-.. ' ''
. (e)(2) of^Hrs-seiiQon; anfl ' ,
(2) Remove all hazardoras wastes^from
Tem
sludges toJffiie
impairing the integnttyof>aie'Bner[^),*if
any.' . .' - -:.--. ' - . : ,
(3) Rem'ovEil'TaF'hazaMeus 'wastes mast -
1 be comp'le'telqrofeterSfhaiiW-'days^aJter
the final receipt of hazardous wastes. -
The Regional A-aisini^te^tor may
apprdve;aniex?terisionfe Ms-tleailme If
.
necessity, Jtake longer &an?fhe-anattea
period !to complete 'and ..that an
'
SOT
that exceeds ahe
compliance,, ~S lappleaMg, is
accordance awith stkeagegairsmEBfes
opaGatQr«of-ihe unit:
CiyMngi.ifflplemeH
measjiEBS M^CGOzdance, with 'the
measures
appropriala, ito^ffactedsGoiidkisHSiof .the '
. permit to' aciMiiHt for, tte,r«ceipit{o"f: nan--
hazardous wastes 'followjtng ie.cejpt'Of •
the '.final volume of hazardous wastes; '
and ... '" ' - -> • , : •
(4) ;
and Jte .
paragraplis>@]p3
section stE
...
year after flelecSflji,Dlifhe!Esleasfiifor
appnovial of fhe coifingentu?orEejDfLv.e •-
measures,plan, wh'iclie.vjBrjsJater;
Tff) May coriflhue'tojaceive wasles^t
the unit 'follow3ng,aetejction,of:fhe
'release orfly:lf^e^pio.vBiSi"j3cfflcecfivB-.
measures plan includes a flemDns'tration.
that continued rece'ip'tpf wastes wffljiDl
impede, corrective action; and
'
.
AdrrimistEator'tDTHip'lement correritive
mBasuresTn less 'flbmi tine year or/to
corrective •measures %avetreen . V
implemeriteiS W-necessary ^to^pr o'tedt
human health and the 'enyirbranerit. -
(5] During the^peT'ipS of'cbrree'ffve
action, the ewHer?or®faiQn-
hazardous wgastes sen tthe»efllejpti;raJness
of the cdrrecfiye Action.'
. [6] T^e Regional Administrator inay
require t&awjQBrajrjdB.oisiDnii!fl IfiBterithan
20 days after ihe date of the notice.
(iii) If fhe Regional AdministraitQr
receives ho, wiitten comments, the
decision?will:bBCQnie,finalifive days
after ihe close^of the 'commerftjjeriod.
The Regional Adm'iriistra'tor will notify
the owner jDriqipBrator ithsitt. the aiecision
is finaJ.andihatkaiEeviaediciQSurfi plan,
if necessary,, ,miistieiSHbmitteji'iw?ifhin
15
aacoriiaace svith
the-jSeadlines so. paragEapksjfaj,a;n"d:.(:bj
of this-sealioH. .'-',]. "
• : (iv) if the Regional ^acaJaisteator
receives .written commerts on the
decisicHi,'he'!sha-lljmake a JinahdeoisioH
or operator in w?ilii}g:aHd>iaE;pHblic
through:ais8SKapapBra3ntrce,'a ds
. stateajsiilsofaeasonstforstiieifmHl
e, dlosuiE amiatlhe iniMateia
'in accordance with the deaaflinesan
,,paragraphs^a) and {b) of nhis section..,
(v) The. final determinations made 1%
appeal.
ejidiSf ?ttie last setiflon-ln JSubjpai't
Part 26rtD,Teaa asfollpws: ,
Subpart G are approved by the Office of
Managemaatand.Biidget HBdeiaBoatrol
5. Section 264.142 is ameftded by
revising^iaragrajihs Mf3J and|a)(4) ,tp
read asfd'Hows:
. § 264.142 Cost estimate for closure.
(a) *:'* *.; --V. ..'^.
..(3)The cTosmstcoat estimate .may riot
incprpprate.aay salvage ^ralue tthatiuay
be realized wiSi-ihe sale^af ;ha'zard0us
,.
appHcable linder J .384 AlJJdJ, JaqiUty
sb^hkss-fflrieguipmeit, laind>'QT other *
assEtsiassociated awith site jfecili|y
-------
< 83398 Federal Register / Vol. 54, No. 155 / Monday, August 14, 1989 / Rules and Regulations
PART 265— INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
6. The authority citation for part 265
continues to read as follows:
Authority: 42 U.S.C. 6905, e912(a], 6924,
0025, and 0633.
7. Section 265,13 is amended by
revising paragraphs (a)(l), fa)(3)(i), and
(b)(l) to read as follows:
8 265.13 General waste analysis.
(a)(l) Before an owner or operator
treats, stores or disposes of any
hazardous wastes, or non-hazardous
wastes if applicable under § 265.ll3(d),
he must obtain a detailed chemical and
physical analysis of a representative
•ample of the wastes.
* * * * * , 1
(3) The analysis must be repeated as
necessary to ensure that it is accurate
and up to date. At a minimum, the
analysts must be repeated:
(!) When the owner or operator is
notified, or has reason to believe, that
the process or operation generating the
hazardous wastes or non-hazardous
wastes, if applicable, under §265.113(d)
has changed; and
*****
(b) ---
(l) The parameters for which each
hazardous waste, or non-hazardous
watte If applicable under §265.113(d),
will be analyzed and the rationale for
the selection of these parameters (i.e.,
how analysis for these parameters will
provide sufficient information on the
waste's properties to comply with
paragraph (a) of this section);
* * ' i * *
8, Section 265.112 is amended by
revising paragraph (d)(2) to read as
follow, a: ..... .. . ,
Ctosure p!m; amendment of
plait.
fdj • • •
(2) The date when he "expects to
begin closure" must be either:
(.} Within 30 days after the date on
which any hazardous waste
nmnogfitnent unit receives the known
final volume of hazardous wastes or, if
there It a reasonable possibility that the
hazardous waste management unit will
receive additional hazardous wastes, no
lalf r than one year after the date on
which tht unit received the most recent
volume of hazardous wastes. If the
owner or operator of a hazardous waste
minngcmenl unit can demonstrate to the
Regional Administrator that the
hazardous waste management unit or
facility has the capacity tp receive, .
additional hazardous wastes and he has
taken, and will continue to take, all
steps to prevent threats to human,health
and the environment, including
compliance with all applicable interim
status requirements, the Regional
Administrator may approve an
extension to this one-year limit; or
(ii) For units meeting the requirements
of § 265.113(d), no later than 30 days
after the date on which the hazardous
waste management unit receives the
known final volume of non-hazardous
wastes, or if there is a reasonable
possibility that the hazardous waste
management unit will receive additional
non-hazardous wastes, no later than one
year after the date on which the unit
received the most recent volume of non-
hazardous wastes. If the owijer or
operator can demonstrate to the
Regional Administrator that the
hazardous waste management unit has
the capacity to receive additional non-
hazardous wastes and he has taken, and
will continue to take, all steps to prevent
threats to human health and the
environment, including compliance with
all applicable interim status
requirements, the Regional
Administrator may approve an
extension to this one-year limit.
*****
9. Section 265.113 is amended by.
revising paragraphs (a) introductory
text, (a)(l)(ii)(A), (b) introductory text,
(b)(l)(ii)(A), and (c) and adding
paragraphs (d) and (e) to read as
follows:
§ 265.113 Closure; time allowed for
closure.
(a) Within 90 days after receiving the
final volume of hazardous wastes, or the
final volume of non-hazardous wastes if
the owner or operator complies with all -.
applicable requirements in paragraphs
(d) and (e) of this section, at a
hazardous waste management unit or
facility, or within 90 days after approval
of the closure plan, whichever is later,
the owner or operator must treat,
remove from the unit or facility, or
dispose of on-site, all hazardous wastes
in accordance with the approved closure
plan. The Regional Administrator may
approve a longer period if the owner or
operator demonstrates that:
W * * *
(ii)(A) The hazardous waste
management unit or facility has the •
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the facility
owner or operator complies with
paragraphs (d).and (e) of this section; .
and • •
* * * • * i * •
(b) The owner or operator must
complete partial and final closure '
activities in accordance with the
approved closure plan and within 180
days after receiving the final volume of
hazardous wastes, or the final volume of
non-hazardous wastes if the owner or
operator complies with all applicable
requirements in paragraphs (d) and (e)
of this section, at the hazardous waste
management unit or facility, or 180 days
after approval of the closure plan, if that
is later. The Regional Administrator may
approve an extension to the closure
period if the owner or operator
demonstrates that:
(1) * * * -
(ii)(A) The hazardous waste
management unit or facility has the
capacity to receive additional hazardous
wastes, or has the capacity to receive
non-hazardous wastes if the facility
owner or operator complies with
paragraphs (d) and fe) of this section; . :
and ..
*_***.*
(c) The demonstrations referred to in
paragraphs (a)(l) and (b)(l) of this
section must be made as follows:
(1) The demonstrations in paragraph
(a)(l) of this section must be made at
least 30 days prior to the expiration of ,
the 90-day period in paragraph (a) of
this section; and
(2) The demonstration in paragraph
(b)(l) of this; section must be made at
least 30 days prior to the expiration of
the 180-day period in paragraph (b) of
this section, unless the owner or
operator is otherwise subject to the
deadlines in paragraph (d) of this
section.
(d) The Regional Administrator may
allow an owner or operator to receive
non-hazardous wastes in a landfill, land
treatment, or surface impoundment unit
after the final receipt of hazardous
wastes at that unit if:
[1] The owner or operator submits an
amended part B application, or a part B
application, if not previously required,
and demonstrates that:
(i) The unit has the existing design
capacity as indicated on the part A
application to receive non-hazardous
wastes; and
(ii) There is a reasonable likelihood
that the owner or operator or another
person will receive non-hazardous
, wastes in the unit, within one year after
the final receipt of hazardous wastes;
and
(iii) The non-hazardous /wastes, will
not be incompatible with any remaining
-------
Federal Register
Monday. August 14, 1989 / Rules and Regulations 33397
wastes in the unit or with the facility :
design and operating requirements of' ,
the unit or facility under this part; and
(iv) Closure of the hazardous waste
management unit would be incompatible
with continued operation of the unit or
facility; and i . . :.
- (v) The'owner or operator is operating
and will continue to.operate in
compliance with all applicable interim
status requirements; and :
(2); .The part B application includes an
amended waste analysis plan, ground-
water monitoring and response program,
human exposure assessment required .
under RGRA section 3019, and closure
and post-closure plans, and updated
cost estimates and demonstrations of :
financial assurance for closure and post-
closure care as necessary and
appropriate to reflect any changes due
to the presence of hazardous
constituents in the non-hazardous
wastes, and-changes in closure -'. .,
activities, including the expected year of
closure if applicable under
§ 265.112(b)(7), as a result of the receipt
of non-hazardous wastes following the
final receipt of hazardous wastes; and
(3) The part B application is amended,
as necessary and appropriate, to -.
account for the receipt of non-hazardous
wastes following receipt of the final
volume of hazardous wastes; and
(4) The part B application and the ; ,,
demonstrations referred to in
paragraphs (d)(l) and (d)(2) of this
section are submitted to the Regional
Administrator no later than 180 days
prior to the date on which the owner or
operator of the facility receives the
known final volume of hazardous
wastes, or no later than 90 days after the
effective date of this rule in the state in
which the unit is located, whichever is
later.
(e) In addition to the requirements in
paragraph (d) of this section, an owner
or operator of a;hazardous waste
surface impoundment that is not in
compliance with the liner and leachate
collection system requirements in 42
U.S.C. 3004(o)(l) and 3005(j)(l) or 42
U.S.C. 30Q4(o)(2) or (3) or.3005(j) (2), (3),
(4) or (13) must:
(1) Submit with the part B application:
(i) A contingent corrective measures
plan; and
(ii) A plan for removing hazardous
wastes in compliance with-paragraph
(e)(2) of this section; and
(2) Remove all hazardous wastes from
the unit by removing all hazardous:
liquids and removing all hazardous
sludges to the'extent practicable without
impairing the integrity of the liner(s), if
any. - .
(3) Removal of hazardous wastes'must
be completed no later than 90 days after
the final receipt of hazardous wastes.
The Regional Administrator may
approve an extension to this deadline if
the owner or operator demonstrates that
the removal of hazardous wastes Will, of
necessity, take longer than the allotted
period to complete and that an
extension will not pose a threat to
human health and the environment.
(4) If a release that is a statistically
significant increase (or decrease in the
case of pH) in hazardous constituents
oven background levels is detected in
accordance with the requirements in
subpart F of this part, the owner or
operator of the unit:
: (i) Must implement corrective
measures in accordance with the
approved contingent corrective '•••'•
measures plan required by paragraph
(e)(l) of this section no later than one
year after detection of the release, or ,
approval of'the contingent corrective
measures plan, whichever is later;
. (ii) May receive wastes at the unit
following detection of the release only if;
the approved corrective measures plan
includes a demonstration that continued
receipt of wastes will riot impede
corrective action; and
(iii) May be'required by the Regional
Administrator to implement corrective
measures in less than x>ne year or to
cease receipt'of wastes until corrective
measures have been implemented if
necessary to protect human health and
the environment.
(5) During the period of corrective
action, the owner or operator shall
provide semi-annual reports to the •" ; .
Regional Administrator that describe
the progress of the corrective action
program, compile all ground-water
monitoring data, and evaluate the effect
of the continued receipt of non-
hazardous wastes on the effectiveness
of the corrective action. ,
: (6) The Regional Administrator may
require the owner or operator to
commence closure of the unit if the
owner or operator fails to implement
corrective action measures in
accordance, with the approved .-
contingent corrective measures plan
within one year as required in .
paragraph (e)(4) of this section, or fails
to make substantial progress in " •• '
implementing corrective action and
achieving the facility's background
levels; ' ' ; ' . :
(7) If the owner or operator fails to
implement corrective measures as
required in paragraph (e)(4) of this
section, or if the Regional Administrator
determines tha't substantial progress has'
not been'made pursuant to paragraph; ,
(e)(6) of this section he shall:
(i) Notify the owner or operator in ;
writing that the owner oroperator must
begin closure in accordance with the
deadline hi paragraphs (a) and (b) of v.
this section' arid provide a detailed
statement of reasons for this
determination, and
(ii).Provide the pwner or operator and
the public, through a newspaper notice,
the opportunity to submit written
comments on the decision no later than
20 days after the date of the notice.
, (iii) If the Regional Administrator
receives no written comments, the
decision will become final five days
after the close of the comment period.
The Regional Administrator will notify
the owner of operator that the decision
is final, and that a revised qlosiire plan,
if necessary, must be submitted within
15 days of the final notice and that
closure must begin in accordance with
the deadlines in paragraphs (a) and (b)
of this section. =
(iv) If the Regional Administrator
receives written comments oh the '
decision, he shall make a final decision
within 30 days after the end of the
comment period, and provide the owner
or operator in writing arid the public
through a:newspaper notice, a detailed
statement of reasons for the final '
decision. If the Regional Administrator
determines that substantial progress has
not been made, closure must be initiated
in accordance with the deadlines in
paragraphs (a) and (b) of this section.
(v) The final determinations made by',
the Regional-Administrator under
paragraphs (e)(7) (iii) and (iv) of this .
section are not subject to administrative
appeal. •
9a. A parenthetical is added at the
end of the last section in subpart G of
Part 265 to read as follows:
(The information collection requirements in
Subpart G are apprpved by the Office of
Management and Budget under control
number 2050-0008)
10. In § 265.142 is amended by revising
paragraph (a)(3)"and (a)(4) to read as
follows:
§265.142 Cost estimate for closure.
>)*>* •:.'••'
(3) The closure cost estimate may not
incorporate-any salvage value that may
be realized with the sale of hazardous
wastes, or non-hazardous wastes if ;
applicable under § 265.113(d), facility
-structures or equipment, land, or other .
assets associated with the facility at the
time of'partial or final closure. •
(4) The owner or operator may not
incorporate a zero cost for hazardous
wastes, or non-hazardous wastes if
applicable under § 265.113(d), that might
have economic value. :- •
-------
33398 Federal Register / Vol. 64, No. 155 / Monday, August 14, 1989 / Rules and Regulations
PART 270—EPA ADMINISTERED
PERMIT PWOGRAMS: THE
HAZARDOUS WASTE PERMIT
PHOGRAM
11. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C. 6005,0912,6024,6925,
6027, C0"9, nnd 6974.
12, In § 270.42, the list of permit
modifications in Appendix I is amended
by adding D.l.f. to read as follows:
§270.42 P«rm!t modification at the
r«qu«»t ofth* p«f mltt*«.
Appendix I to § 270.42—Classification
* of Permit Modifications
i Modffiemtoo* ": Class
0.***
'•***
Modification* Class
I ExfemJon of th«'dosu» period to tltow
« tend**, wrfac* Impourjdmsm or land
' \ uqH lo reccf.a non-huardous
final r«e«Jj)t ol hazardooa
" „..._ 2
|f!R Doc. 80-18499 Filed 8-11-89; &45 ami
------- |