Wednesday '
October 9, 1991
40 CFR Parts 257 and 258
Solid Waste Disposar Facility Criteria!
Final Rule •••''..:-.. ....-"'
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50978 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 /Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
tEPA/OSW-FR-91-004 FRL-4011-9]
40 CFR Parts 257 and 258
Solid Waste Disposal Facility Criteria
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: The Environmental Protection
Agency today is promulgating revisions
to the Criteria for Classification of Solid
Waste Disposal Facilities and Practices
set forth in 40 CFR part 257. These
revisions were developed in response to
the 1984 Hazardous and Solid Waste
Amendments to the Resource
Conservation and Recovery Act
(RCRA). Today's rule adds a new part
258, which sets forth revised minimum
federal criteria for municipal solid waste
landfills (MSWLFs), including location
restrictions, facility design and
operating criteria, ground-water
monitoring requirements, corrective
action requirements, financial assurance
requirements, and closure and post-
closure care requirements. The rule
establishes differing requirements for
existing and new units (e.g., existing
units are not required to remove wastes
in order to install liners). In addition,
today's rule amends part 257 by making
conforming changes that make it
consistent with the new part 258. The
specific criteria by which State
programs will be approved will be
published in a separate rule, which is
expected to be proposed in early 1992.
This rulemnking also fulfills a portion
of EPA's mandate under section 405{d)
of the Clean Water Act (CWA) to
promulgate regulations governing the
use and disposal of sewage sludge. Part
258 of today's rule is co-promulgated
under the authority of the CWA and
applies to all MSWLFs in which sewage
sludge is co-disposed with household
wastes, A separate regulation for sludge
monofills (landfills in which only
sewage sludge is disposed of) was
proposed on February 6,1989, under part
257 and part 503. The sludge monofill
regulations are expected to be finalized
by the end of 1991.
EFFECTIVE DATE October 9,1093, except
subpart G of part 258 is effective April 9.
1994.
ADDRESSES: The public record for this
rulemaklng (docket number F-91-
CMLF-FFFFF) is located at the RCRA
Docket Information Center, (OS-305),
U.S. Environmental Protection Agency
Headquarters, 401M Street, SW.,
Washington. DC 20480. The public
docket is located at EPA Headquarters
and is available for viewing from 9 a.m.
to 4 p.m., Monday through Friday,
excluding Federal holidays.
Appointments may be made by calling
(202) 475-9327. Copies cost $0.15/page.
FOR FURTHER INFORMATION CONTACT:
For general information, contact the
RCRA/Superfund Hotline, Office of
Solid Waste, U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20460, (800) 424-9346,
toll-free, or (703) 920-9810, local in the
Washington, DC, metropolitan area.
For more detailed information on
specific aspects of this final rule, contact
Allen Geswein, Paul Cassidy, or
Andrew Teplitzky, Office of Solid
Waste (OS-301), U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20460, (202) 260-1099.
SUPPLEMENTARY INFORMATION: Copies
of the following document are available
for purchase through NTIS, U.S.
Department of Commerce, Springfield,
Virginia 22161,1 (800) 553-6847 or (703)
487-4650:
(1) U.S. EPA. Office of Solid Waste.
December 1990 Regulatory Impact
Analysis (RIA) and the August 1991
Addendum for the Final Criteria for
Municipal Solid Waste Landfills—(40
CFR part 258)—Subtitle D of the
Resource Conservation and Recovery
Act (RCRA). August 1991.
Preamble Outline
I. Authority
II. Background
A. Current Solid Waste Controls Under
RCRA and the CWA
1. RCRA Subtitle D Criteria
2. Sewage Sludge Criteria
B. Report to Congress on Solid Waste
Disposal
C. EPA Concerns Regarding Local
Government and Indian Tribe Impacts
D. EPA's Solid Waste "Agenda for Action"
1. Increasing Information
2. Improving Integrated Waste
Management Planning
3. Increasing Source Reduction
4. Increasing Recycling
5. Improving Municipal Waste Combustion
6. Improving Municipal Solid Waste
Landfilling
E. Summary of Proposed Rule
flL Regulatory Approach of Today's Final
Rule
A. Statutory Basis
B. Regulatory Options Considered and
Summary of the Regulatory Impact
Analysis
1. Risk and Resource Damage Analysis
2. Other benefits
3. Costs and Economic Impacts
4. Selection of Today's Regulatory
Approach
C. Pollution Prevention Aspects of Final
Rule .
IV. Major Issues '
A. Small Landfills
B. Regulatory Structure
C. Implementation and Enforcement
1. Procedures for State Program Approval
2. Public Participation
3. Enforcement Considerations
D. Ground-Water Policy
1. Differential Protection of Ground Water
2. Well Head Protection Programs
E. Issues Pertaining to Sewage Sludge
1. Pollutant Limits for Sewage Sludge
2. Removal Credits
V. Summary of Amendments to part 257
A. Conforming Changes to part 257
B. Notification and Exposure Information
Requirements
VI. Summary of part 258
A. Subpart A—General
B. Subpart B—Location Restrictions
C. Subpart C—Operating Criteria
D. Subpart D—Design Criteria
E. Subpart E—Ground-water Monitoring
and Corrective Action
F. Subpart F—Closure and Post-Closure
Care.
G. Subpart G—Financial Assurance
Criteria
VH. Implementation of Today's Rule
VIII. EPA Training on Final Rule
IX. Paperwork Reduction Act
X. References
XI. List of Subjects
A. Part 257
B. Part 258
Appendix A. [Reserved]
Appendix B. Supplemental Information for
Subpart A—General •
1. § 258.1 Purpose, Scope, and Applicability
a. Closed Facilities
b. Controls on Municipal .Waste
Combustion
c. Rule Effective Date
Z. § 258.2 Definitions
'3. § 258.3 Consideration of Other Federal
Laws
Appendix C. Supplemental Information for
Subpart B—Location Restrictions
1. § 258.10 Airport Safety
2. § 258.11 Floodplains
3. § 258.12 Wetlands
4. § 258.13 Fault Areas
5. § 258.14 Seismic Impact Zones
6. § 258.15 Unstable Areas
7. § 258.16 Closure of Existing Units
8. Other Location Areas
9. Wellhead Protection
Appendix D. Supplemental Information for
Subpart C—Operating Criteria
1. § 258.20 Procedures for Excluding the
Receipt of Hazardous Waste
2. § 258.21 Cover Material Requirements
3. § 258.22 Disease Vector Control
4. § 258.23 Explosive Gases Control •
5. § 258.24 Air Criteria
6. § 258.25 Access Requirements
7. % 258.26 Run-on/Run-off Control Systems
. 8. § 258.27 Surface Water Requirements
9. § 258.28 Liquids Restrictions ...
10. § 258.29 Recordkeeping Requirementb
Appendix E. Supplemental Information for
Subpart D—Design Criteria : ; ,
1. Overview of Proposed Ruje . ;
- 2. Summary of Comments
3. Evaluation of Proposal and Alternatives
4 Final Rule Approach , ;
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Federal Register / Vol. 56, No. 196 /Wednesday, October 9, 1991 / Rides and Regulations 50979
Appendix F. Supplemental Information for
Subpart E-^Ground-Water Monitoring
and.Corrective Action .... .
Appendix G. Supplemental Information for
Subpart F—Closure and Post-Closure
Care
Appendix H. Supplemental Information for
Subpart G—Financial.AssuranceCriteria
I. Authority
. Today's rule is being'promulgated'
. uiuterthe authority of sections 1008, v
2002 (general rulemaking authority),
4004, and 4010 of the Resource
Conservation and Recovery Act of 1978,
as amended. Section 1008 directs EPA to
publish guidelines for solid waste
management, including criteria that
define solid waste .management
practices that constitute open dumping
and are prohibited under subtitle D of
RCRA. Section 4004 further requires
EPA to promulgate regulations •
containing criteria for determining
which facilities are open dumps.'Section
4010, added by the Hazardous and Solid
Waste Amendments of 1984 (H8WA),
directs EPA to revise the criteria .'.,. ,
promulgated under section 1008 and
4004 for facilities that may'receive
hazardous household waste (HHW) or
small quantity generator (SQG) . ;
hazardous waste. '••.':.-'.•
The part 258 regulations are also ;;
being promulgated under the authority
of section 405 of the CWA and will
apply to municipal solid waste landfills
in which sewage sludge is disposed of
together with household wastes ("co-
disposed sludge"). Section 405(d)
requires EPA to establish sewage sludge
use and disposal standards for the toxic
pollutants in sewage sludge adequate to
protect public health and the
environment against reasonably
anticipated adverse effects of the
pollutants. Section 405(e) prohibits any
person from disposing of sludge from a
publicly-owned treatment works
(POTW) or other treatment works
treating domestic sewage except in
accordance with the section 405(d)
regulations. The regulations
promulgated here today will fulfill EPA's
CWA requirement to, establish -
standards for sewage sludge that is co-
disposed with municipal solid waste."
II. Background
A. Current Solid Waste Controls Under
RCRA and the CWA .-..'..
1. RCRA Subtitle D Criteria
Subtitle D of RCRA establishes a
framework for Federal, State, arid local
government cooperation hi controlling
the management of nonhazardous solid
yaste. The Federal role in this_ ..'••••
arrangement is to establish the overall
regulatory direction, by providing
minimum nationwide standards for
protecting human health and the
environment, and to provide technical '
assistance to States for planning and
developing their own environmentally
sound waste management practices. The
actual planning and direct
implementation of solid waste programs
under subtitle D, however, remain
largely State and local functions, and
the act authorizes States to devise
programs to deal with State-ispecific
conditions and needs. EPA retains the
authority to enforce the appropriate
standards in a given State.
Under the authority of sections
1008(a)(3j and 4004(a) of subtitle D of
RCRA, EPA first promulgated the
Criteria for Classification of Solid
Waste Disposal Facilities and Practices
(40 CFR part 257) on September 13,1979.
These subtitle D Criteria establish
minimum national performance ? -
standards necessary to ensure that "no
reasonable probability of adverse'
effects on health or the environment"
will result from solid waste disposal
facilities or practices. A facility or
practice that meets the Criteria is, •
classified as a "sanitary landfill." A
facility failing to satisfy, any of the
Criteria is considered an "open .dump"
for purposes of State solid waste "
management planning. State plans
developed pursuant to the Guidelines for
Development and Implementation of
State Solid Waste Management Plans
(40 CFR part 256) must provide for
closing or upgrading all.existing open
dumps within the State. .
Practices not complying with the
Criteria also constitute "open dumping"
for purposes of the Federal prohibition
on open dumping in section 4005(a). EPA
does not have the authority to enforce ,
the prohibition directly (except in
situations involving the disposal or
handling of sludge from publicly-owned
treatment works, where Federal
enforcement of POTW sludge-handling
facilities is authorized under the CWA).
However, the "open dumping"
prohibition may be enforced by States
and other persons under section 7002 of
RCRA.
The existing part 257 Criteria include
general environmental performance
standards addressing eight major topics:
Floodplains (§ 257.3-1), endangered
species (§ 257.3-2), surface" water .
(§ 257.3-3), ground water (§ 257.3-4),
land.application (§ 257.35), disease :
(§ 257.3-6), air (§257.3-7), and safety
(§257,3-8). . .......
2. Sewage Sludge Criteria
The existing part 257 Criteria • "' :
discussed above were co-promulgated
under joint authority of RGRA and
section 405(d) of the CWA. The part 257
regulations thus apply to all sludge • -. •'
disposed of on land. Under section
405(e), it is unlawful to dispose of sludge
for any use for which regulations have
been established under the CWA except
in accordance with these regulations.
In February 1987, Congress enacted
the Water Quality Act of 1987, which
amended portions of the CWA,
including section 405. First, Congress
expanded section 405(d) to impose new
standard-setting requirements with
associated deadlines. Second, Congress
established new sludge permitting
requirements in section 405(f) along with
State program requirements.
EPA has proposed sludge regulations
under section 405(d), published at 40
CFR parts 257 and 503, on February 6,
1989 (54 FR 5746-5902). The proposed
part 503 regulations would establish
standards for the incineration, land .
application, and distribution and :
marketing of sludge. They also would
establish standards for sludge disposed
of in moriofills, which are landfills in
which only sewage sludge is disposed of
(i.e., no other type of solid waste is co- .
disposed with the sewage sludge) and hi
surface disposal units (sludge placed on
the surface of the land in piles). The
sludge proposal does not include
standards for the co-disposal of sewage
sludge with household wastes in
municipal solid waste landfills. Rather,
those standards for the co-disposal of
sewage sludge and household wastes in
landfills are established in today's final ;
rule. By this action, the Agency seeks to
achieve consistency in its regulation..
under two legal authorities of a single
disposal practice^—the co-disposal of,
sewage sludge and other solid wastes, in
municipal solid waste landfills.
B. Report to Congress on Solid Waste
Disposal
• In response to the 1984 Hazardous
and Solid Waste Amendments, EPA
completed a study on the adequacy of
the existing Criteria to protect human
health and the environment from all
subtitle D facilities, except those
addressed in other EPA reports to
Congress, such as mining waste
facilities. In conducting the study, EPA
gathered detailed data on the
characteristics and quantities of
nonhazardous solid wastes, including
municipal solid wastes.'ih addition,
evaluated the characteristics and
potential human health and .
environmental impacts of solid waste
disposal facilities. Finally, the Agency'
reviewed the Federal arid State solid .'-
waste regulatory programs'to identify
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50980 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
any areas of inadequacy. In October
1988. EPA submitted the results of the
study to Congress in a report entitled,
"A Report to Congress: Solid Waste
Disposal in the United States." (Ref. 1)
The preamble to the August 30,1988
proposal of this rule (53 FR 33314)
contained a discussion of the findings of
this study.
The results of this study confirmed
that the United States is in the midst of
a municipal solid waste disposal crisis.
EPA's most recent data show that in
1988 the nation generated nearly 180
million tons of municipal solid waste
and that this quantity would likely grow
to 218 million tons by the year 2000. This
growing volume of waste is coupled
with a steadily decreasing availability
of disposal capacity. In a 1988 EPA
survey (Ref. 2), 45 percent of the
municipal solid waste landfill owners/
operators reported that their landfills
would reach capacity by 1991. Today's
disposal capacity crisis is further
compounded by the difficulty in siting
new solid waste management facilities.
C. EPA Concerns Regarding Local
Government and Indian Tribe Impacts
The municipal solid waste crisis
comes at a time when local governments
and Indian Tribes are faced with a wide
range of competing demands for their
limited financial and technical
resources. Schools, roads, social
programs, public health and
environmental programs, including solid
waste management, and other programs
draw on limited local resources, forcing
cities and Tribes to make tough budget
decisions. EPA recognizes and is very
sensitive to these difficult conditions
that local governments and Indian
Tribes face and is carefully considering
the impacts of its environmental
programs on local governments and
Indian Tribes.
As part of this effort, EPA carefully
considered the concerns of local
government and Indian Tribes in today's
rule for municipal solid waste landfills.
Within the constraints established by"
Congress, EPA has provided in this rule
extensive flexibility to States/Indian
Tribes, and local governments to
facilitate implementation. For example,
today's rule sets forth a set of flexible,
national performance standards that
allow owners and operators, including
local governments and Indian Tribes, to
consider site-specific conditions in
designing and operating their landfills to
comply with the rule Today's rule also
establishes a flexible compliance
schedule, including the phase-in of
ground-water monitoring requirements
over a five-year period from the date of
publ cation of today's rule. Finally, as
discussed later in this preamble, today's
rule provides special relief to small
communities and Indian Tribes.
Municipal solid waste landfills that
serve small communities and Indian
Tribes which meet certain criteria are
exempted from certain high-cost
requirements (See § 258.1(f)).
EPA also is stepping up its efforts in
providing technical assistance to local
governments on municipal solid waste
management issues. As discussed hi the
next section, the Agency has developed
a national strategy for addressing the
nation's municipal solid waste problem
that calls for action by all levels of
government, industry, and the general
public. In implementing this strategy,
EPA has worked with the States in
launching numerous new technical
assistance programs aimed at local
governments. For example, EPA issued a
wide range of information materials on
topics such as recycling and siting of
solid waste management facilities,
which are critical to local governments.
EPA plans to continue to work with
States in providing this much-needed
assistance to local governments.
D. EPA's Solid Waste "Agenda for ,
Action"
In response to the growing national
concern about the solid waste disposal
crisis, EPA developed a national
strategy for addressing the municipal
solid waste management problems. This
strategy is set out in a document
entitled, "The Solid Waste Dilemma: An
Agenda for Action." (Ref. 3) which the
Agency issued in final form in February
1989. The strategy describes a wide
range of activities that must be
undertaken by various parties, including
government, industry, and the general
public, to bring our municipal solid
waste management problems under
control. EPA expects to issue an update
of the Agenda in the near future.
The cornerstone of the strategy is
"integrated waste management," where
the following solid waste reduction and
management options work together to
form an effective system: source
reduction, recycling, combustion, and
landfilling. In keeping with the Agency's
policy of pollution prevention, which is
discussed below, the strategy strongly'
encourages the use of source reduction
(i.e., reduction of the quantity and
toxicity of materials and products
entering the solid waste stream)
followed by recycling as first steps in a
solid waste management system. These
techniques can then be complemented
by environmentally sound combustion
and landfilling.
The strategy sets out three national'
goals for municipal solid waste
management (1) Increase source
reduction and recycling; (2) increase > •
disposal capacity and improve
secondary material markets; and (3)
improve the safety of solid waste
management facilities. To promote the
attainment of the first goal, EPA
established a national goal of 25 percent
source reduction and recycling of
municipal solid waste by 1992.
EPA's "Agenda for Action" identifies
a series of actions or activities that must
be carried out to achieve the above
national goals. These activities seek to
(1) increase the amount of information
available to all parties on municipal
solid waste management; (2) increase
effective integrated waste management
planning by local governments, States,
Indian Tribes, and industry; (3) increase,
use of source reduction; (4) increase
recycling; and (5) improve the design
and management of municipal waste
combustors and landfills.
EPA has made significant progress in
completing the activities and attaining
the national goals outlined in the
"Agenda for Action." The following
describes some of the most significant
actions EPA has completed in '
implementing the "Agenda for Action."
1. Increasing Information
The Agency has completed numerous
educational materials and programs
aimed at assisting State and local
governments and others in dealing with
municipal solid waste management
problems. For example, EPA issued the
first volume of the "Decision Makers
.Guide to Solid Waste Management,"
(Ref. 4) which provides essential
information on all aspects of solid waste
management for local government
officials. The Agency also published a
comprehensive bibliography of
information on municipal solid waste
management and a guide to public
involvement in siting municipal solid
waste management facilities. In
addition, EPA has established an
•information clearinghouse and peer
matching program (through which
experienced solid waste professionals
provide assistance to their peers). In
February 1989, the Agency held a
national conference to identify and
discuss municipal solid waste research
needs.
EPA is continuing to develop
additional information materials and
programs. For example, EPA sponsored
a major national conference on
municipal solid waste management in
June 1990. The conference addressed
solid waste management issues of
national importance and worked to
increase awareness of these issues at
-------
local, State, and regional levels. The
goal of the conference was to initiate
partnerships among peers in
government, and involve groups -and
; individuals to encourage cooperation
and innovation in our efforts to solve
solid waste problems. Specific areas
addressed at the conference included:
(1) Integrated waste management, (2)
source reduction and reuse, (3)
recycling, (4) combustion, (5) land
disposal, and (6] public education and
involvement. A second national "'
conference is planned for June of 1992.
.The Agency also established SWICH
(Solid Waste Information
Clearinghouse), a national clearinghouse
' for municipal solid waste management
that contains over 7,000 documents. This
system is an electronic bulletin board
tha't allows users to view the listings of
journals, reports, studies, etc., to search
for topics and also contains information
on how to order publications.
Furthermore, the Agency will soon
, release a "how to" manual for setting up
household hazardous waste collection
programs.
2. Improving Integrated Waste
Management Planning
A major objective of EPA's "Agenda
for Action" was to improve integrated
waste management planning by States
and local governments. EPA has made
significant progress in achieving this
objective. In April 1989, EPA, in
cooperation with the National
Conference of State Legislatures, held a
workshop for. States on solid waste
management planning. In addition,
through a grant to the Council of State
Governments, EPA sponsored a series of
five workshops on planning for States in
, the fall of 1989. Finally, with the
Conference of Mayors, EPA produced a
television video for The Learning
Channel on integrated waste
management " •
3. Increasing Source Reduction
The highest priority in EPA's strategy
for addressing the nation's solid waste
problems is increasing source reduction.
EPA has taken" several steps to promote
the reduction of the quantity and
toxicity of materials entering the
municipal solid waste stream. First, EPA
convened, through a grant to the
Conservation Foundation, a steering
committee of national source reduction
experts to evaluate and develop
recommendations on specific
opportunities for source reduction, •
methods for evaluating source reduction,
and incentives for promoting source
reduction. The results of this project
were recently published in a report
entitled, "Getting at the Source:
Strategies for Reducing Municipal Solid
Waste" (Kef. 5). The Agency also
completed a review and analysis of
economic incentives, including volume-
based pricing schemes, to promote
increased source reduction.
With regard to toxicity reduction, EPA
completed a report identifying the
sources of lead and cadmium in the
waste stream (Ret.6) and will soon
issue a report identifying potential
substitutes for these constituents in
products. The Agency is currently
examining mercury in the municipal
waste stream. In March 1990, the
Agency also completed a comprehensive
report to Congress on methods for
managing plastic wastes (Ref. 7), This
report examined the full range of options
for addressing plastic wastes, including
source reduction.
4. Increasing Recycling
To increase recycling nationwide,
EPA has undertaken a number of efforts
to stimulate markets for secondary
materials; promote increased separation,
collection, processing, and recycling of
waste; and establish a National
Recycling Institute. In the area of
markets for secondary materials, EPA
produced a report examining
disincentives to recycling and has
conducted a series of market studies on
various components of municipal solid
waste (paper, glass, aluminum, tires, and
compost). To improve Federal
procurement of recycled materials, the
Agency finalized four procurement
guidelines (retread tires, building
insulation products, paper and paper
products containing recovered
materials, and lubricating oils
containing re-refined oil) in 1988 and
1989 and has begun examining future
candidate materials (other building and
construction materials) for additional
procurement guidelines.
To promote increased,
environmentally sound recycling of
waste, EPA has launched a training .
program to support recycling. This
program is developing training and
assistance programs for recycling at
Federal offices and, through the
assistance of the State of New Jersey, is
developing training materials for
training State and local recycling
coordinators. EPA also released
publications on a number of topics (i.e.,'
used oil recycling, yard waste
composting, office paper recycling, and
State and local recycling program
experiences) and funded development of
several public service announcements
on recycling. EPA also funded the
establishment of a National Recycling
Institute, composed of high-level
representatives from business and
industry, to identify and resolve issues
in recycling.'
5. Improving Municipal Waste
Combustion '
In the past year, EPA took a major
step forward in improving the design
and management of municipal waste
combustion facilities. In December 1989,
the Agency proposed new air emission
standards (54 FR 52209) for new and
existing municipal waste combustors.
The Agency published a final municipal
waste combustion rule on February 11,
1991 (see 56 FR 5488) that included
requirements for good combustion
practices and air emission control of
particulates, organics, NOx and acid
gases. .. " - .
6. Improving Municipal Solid Waste
, Landfilling
Today's final rule represents the
culmination of a major Agency effort to
improve the safety of municipal solid
waste landfills, EPA issued a
comprehensive proposal (summarized
below) in 1988 (53 FR 33314), evaluated
extensive comments, and is today
promulgating the final rule. The Agency
believes today's rale will significantly
improve the safety of existing and future
municipal solid waste landfills.
While today's final rule is
comprehensive, it does not address
potential concerns regarding air
emissions from municipal landfills. To
address concerns, the Agency proposed
air emission controls for municipal
landfills under the authority of section
111 of the Clean Air Act. (See 56 FR
24468; May 30,1991.)
E. Summary of Proposed Rule
As indicated above, the 1984
Hazardous and Solid Waste
Amendments (HSWA) required EPA to
revise the existing solid waste disposal
criteria for facilities that may receive
household hazardous waste or
hazardous waste from small quantity
generators. The existing criteria were
issued under section 4004(a) of RCRA,
which specified that the criteria were to
provide that a facility be classified as a
sanitary landfill and not an open dump
only if there is no reasonable probability
of adverse effects'on human health and
the environment from disposal Of solid
waste at the facility. HSWA specified
that the revised criteria shall be those
necessary to protect human health and
the environment and may take into
account the. practicable capability of
owners and operators of solid waste
disposal facilities. .
In response to this mandate, in August
1988 EPA proposed revised criteria for
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Federal Register / Vol. 56. No. 196 / Wednesday. October 9. 1991 / Rule8 and Regulations
50932
MSWLFa and new information
requirements for owners and operators
nfindustrial solid waste disposal
facilities and demolition debris landfills.
These are landfills that the Agency
determined do or may receive household
hazardous waste or hazardous waste
from small quantity generators. The key
provisions of the proposed revised
Criteria forMSWLFs are summarized
below. Today's rulemaking sets forth the
final requirements for owners and
operators of these facilities, including
the flexibility provided to States seeking
to tailor standards to meet State-specific
conditions.
EPA's 1988 proposal set forth new
requirements pertaining to MSWLF
location, design and operation, ground-
water monitoring, corrective action,
closure and post-closure care, and
financial responsibility. The proposed
location restrictions identified six
locations in which MSWLFs would be
subject to special siting restrictions and
performance standards: proximity to
airports, 100-year floodplains, wetlands,
fault areas, seismic impact zones, and
unstable areas.
The design criteria proposed by EPA
required owners and operators to design
MSWLFs to meet a performance
standard based on a State-specified
ground-water carcinogenic risk level.
The proposed operating criteria
specified day-to-day operating practices,
like daily cover, for proper landfill
maintenance.
The Agency also proposed ground-
water monitoring and corrective action
requirements that established a ground-
water monitoring system for detection of
releases from landfills and corrective
measures for remedying releases once
they had been detected. The proposed
closure and post-closure care criteria
established final cover requirements and
a closure performance standard and
required a minimum of 30 years of post-
closure care of the landfill. The
proposed financial responsibility
requirements specified that owners and
operators must assure that funds would
be available to meet closure, post-
closure care, and corrective action
needs.
EPA received written comments on
the proposal from more than 350
commenters. The commenters included
more than 130 local governments, about
60 State agencies, and 15 Federal
agencies. About 80 private sector firms
and 27 trade or professional
organizations supplied comments. Ten
environmental and/or other public
interest groups and 33 private citizens
commented on the proposal. In addition,
EPA held four public hearings, in which
commenters presented oral and written
testimony. All comments were taken
into consideration in developing this
final rule. ,
Section III of the preamble, which
immediately follows, sets forth the
statutory basis for the final rule,
describes the broad regulatory options
considered, and summarizes the
regulatory impact analysis. Section IV
responds to general issues raised by
commenters on the proposal. Sections V
and VI of today's preamble summarize
the major provisions of parts 257 and
258, respectively. Section VII reviews
the steps that owners and operators and
States must undertake to implement
today's rule, while Section VIII
describes EPA's plans for training on the
final rule. The technical appendices
provide more detailed discussion of the
technical components of today's rule.
• Responses to comments that are not
discussed in the preamble of today's
rule are contained in the Comments
Response Documents cited in Section X.
HI. Regulatory Approach of Today's
Final Rule
A. Statutory Basis
Prior to evaluating the appropriate
regulatory options for the subtitle D
revised Criteria, it was necessary that
the Agency determine the precedential
effect of the RCRA subtitle C
requirements for hazardous waste „
facilities. These regulations are found,
for the most part, at 40 CFR part 265
(interim status facilities) and 40 CFR
part 264 (permitted facilities).
The Agency received many comments
critical of the proposed Criteria based
upon the fact that the Criteria varied
from those applicable to hazardous
waste facilities under RCRA subtitle C.
Several commenters based their
comments upon technical information -
contained in the docket to this
rulemaking showing many similarities in
the health and environmental threats
posed by MSWLFs and subtitle C
landfills. Like the proposed Criteria, the
revised Criteria promulgated today also
differ from the subtitle C requirements.
EPA believes that Congress did not
intend for EPA to copy the subtitle C
regulations for subtitle D facilities and,
furthermore, gave the Agency the
discretion, through its statutory
mandate, to create a separate regulatory
program.
EPA agrees with commenters that
data available to the Agency at this time
do not provide strong support for
distinguishing the health and
environmental threats posed by
.MSWLFs and subtitle C facilities.
Technical data gathered by the Agency
and available in the docket to this
rulemaking do not reveal significant
differences in the number of toxic
constituents and their concentrations in
the leachates of the two categories of
facilities. One study (Ref. 8) compared
(1) leachates from MSWLFs that began
operation before 1980 (the year EPA's
regulations for hazardous waste
landfills became effective) with
leachates from MSWLFs that began
operations after 1980 and (2) "post-1980"
MSWLF leachates with hazardous
waste landfill leachates. MSWLFs that
began operation prior to 1980 could
contain industrial hazardous waste that,
starting in 1980, could only be sent to a
subtitle C facility. MSWLFs that began
operation after 1980 should only contain
small quantity generator and household
hazardous-wastes in addition to
nonhazardous wastes.
As commenters noted, the study did
not find significant differences between
the number of toxic constituents and
their concentrations between leachates
from post-1980 MSWLFs and leachates
from pre-1980 MSWLFs and hazardous
waste landfills. When comparing the
mean concentrations of leachates from
hazardous waste facilities and
MSWLFs, for example, the Agency
concluded that there was a "weak
indication" in the data that hazardous
waste leachate had higher
concentrations of hazardous
constituents than post-1980 MSWLF
leachate.
It should also be noted, however, that
these data are variable, and did not
reflect long-term monitoring results. As
a result, there is a significant possibility
that they do not accurately reflect the
actual toxicity of MSWLFs and subtitle
C leachates at the present time.
Furthermore, the Agency has many
reasons to believe that the quality of the
leachate from MSWLFs will improve
over time. Increasingly, communities are
instituting household hazardous waste
programs and removing toxics from
waste prior to its disposal in a municipal
landfill. In addition, the Agency expects
there to be positive changes in leachate
resulting from the 1986 lowering of the
cut-off levels for small quantity
generator waste and the addition of new
RCRA hazardous waste listings and
characteristics. The former would
reduce the amount of small quantity
generator hazardous waste that may be
disposed of in MSWLFs while the latter
would divert waste currently disposed
of at subtitle D facilities to subtitle C
facilities. Each of these measures should
reduce both the number and the
concentration of toxic constituents
present in landfill leachates. Thus,
better data as well as future data should
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Federal Register / Vol. 56, Nti. 196^ Wedngsd^^berj.1991 / Rule, and Regulations 50983
' - -| imii^™^————— ^^^^^^^^^i^^^^B^^EamBNnSS&Utti&MEUi^BeaBFiartsxaamm^BBmB^m^mw^mii^ai*-**—--*--*-..^---^
provide a stronger technical basis for
distinctions between the subtitle C and
D regulatory programs.
In raising the similarity in leachates
between MSWLFs and hazardous waste
facilities, commenters suggested that
EPA is legally obligated to promulgate
revised Criteria for MSWLFs under
subtitle D that are similar to existing
regulatory standards for subtitle C
hazardous waste facilities. The basis for
such a suggestion is that the Agency
may not distinguish regulatory
standards under subtitles C and D
except on technical grounds.
The Agency disagrees with
commenters that it is legally obligated to
issue revised Criteria for MSWLFs
under subtitle D that are identical to
subtitle C standards and believes that it
has the discretion to create a different
regulatory program for MSWLFsL
Because this discretipn is based upon
the statutory language and legislative
history of the RCRA provision requiring
EPA to promulgate the revised Criteria,
the current lack of technical information
distinguishing the two universes of solid
waste facilities does not affect the
Agency's discretion to create two
distinct regulatory programs^
The statutory language and legislative
history of RCRA subtitle D reveal that
Congress mandated a different standard
of health and environmental protection
from that mandated under subtitle C and
that Congress did not intend for EPA to
impose the same standards under the
two programs. Subtitle C management
standards for hazardous waste
treatment, storage, and disposal
facilities shall be those "necessary to
. protect human health and the
environment." (See, for example, section
3004(a).J Section 4010(c) of the statute,
the provision mandating promulgation of
the revised Criteria, also contains this
same language:
Not later than March 31,1988, the
Administrator shall promulgate revisions of
the criteria promulgated under paragraph (1)
of section 4004(a) and under section
1008(a)(3) for facilities that may receive
hazardous household wastes or hazardous
wastes from small quantity generators under
section 3001(d). The criteria shall be those
necessary to protect human health and the
environment and may take into consideration
the practicable capabilities of such facilities
(emphasis added).
However, while stating that the revised
Criteria must be those, "necessary to
protect human health and the
environment," subtitle D contains
additional language not present in.
subtitle C, that allows the Agency to
explicitly consider practicable
capability in determining what is
necessary to protect human health and
the environment
This discretion is found both ui the
language of section 401Q(G), which .'_,=
explicitly^provides that .EPA may
consider the "practicable .capability" of
facilities in.revising the solid waste
management criteria promulgated under
section 4004(a), and in the language of
section 4004(a) itself. EPA believes that
these provisions, among other things,
explicitly authorizes EPA to consider
cost in determining appropriate criteria
for subtitle D facilities. The legislative
history of section 4010(cl;as£weli as^ -
other statutory provisions further. ^.:
support this interpretation.
Section 4004(a) provides that EPA
shall promulgate regulations containing
criteria distinguishing which facilities
. are to be classified as sanitary landfills
and which as open dumps. This
provision incorporates a distinctly
different standard of health and „
environmental protection, which may be
•- interpreted to allow consideration of
cost. The section provides that, at a
minimum:
* * * a facility may be classified as a
sanitary landfill and not an open dump only
if there is no reasonable probability of
adverse effects on health or the environment
from disposal of solid waste at such facility
(emphasis added).
The statute suggests that the standard
under section 4004(a) applies to the
revised Criteria mandated under section
4010(c). Section 4010(c) explicitly, states
that the Administrator is to "promulgate
revisions of the criteria promulgate^
under paragraph (1) of section 4004(a)
and under section 1008(a)(3)" for subtitle
D facilities that maf receive hazardous
wastes.1 Thus, rather than simply
directing the Agency to promulgate
criteria for solid waste landfills
receiving household hazardous and
small quantity generator wastes,
Congress directed the Agency to
"revise" the existing Criteria
promulgated under section 4004(a)for
these facilities. Furthermore, Congress
indicates in section 4005 of the statute
that the revised Criteria mandated by
section 4010(c) are to be promulgated
under section 4004(a). Section
4005(c)(l)(B) states:
Not later than eighteen months after, the
promulgation of revised criteria under
subsection 4004(a) (as required by section1
4010(c)), each State shall adopt and
implement a permit program or other system
or prior approval and conditions * *.'*.';
1 Section 1008 simply requires that the
Administrator promulgate solid waste management
information and guidelines.
Thus, the Agency believes that when
promulgating revisions of criteria under
the same statutory provision, it is
reasonable for it to refer to the
standards imposed under that statutory
section in developing the revisions,
.The above statutory argument is
supported by the legislative history of
section 4010(c). In enacting section
4010(c), Congress seems to have been
aware that the costs of the regulation
may cause many facilities to close. As a
..,, consequence, the legislative history
suggests that Congress authorized EPA
:^Jo develop regulations that would avoid
massive closures among solid waste
disposal facilities. Senator Randolph, in
his remarks during floor debate, stated:
(t)he requirements could also precipitate
tlie clbsure of facilities with substantial
capacity, but that are either unable or
unwilling to accept new regulatory costs.
By allowing the administrator to consider
the practicable capability of solid waste
disposal facilities, the Congress has
expressed its desire to avert serious
disruptions of the solid waste disposal
industry^
130 Cong. Rec. S13814 (daily ed, Oct. 5,
1984). From these statements, it would
appear that Congress explicitly
authorized EPA to consider costs under
section 4010(c) as a criterion for
determining if the financial impact upon
the owner or operator of an MSWLF
could result in the "serious disruptions
within the solid waste disposal
industry."
While the legislative history of the
Hazardous and Solid Waste
Amendments of 1984 discusses the
meaning of the term "practicable " ,
capability" under section 4010(c) and
indicates that it refers to cost
considerations, the legislative history
does not elaborate upon the meaning of
section 4004(a) phrase, "no reasonable
probability of adverse effects."
However, case law provides suppprt for
interpreting this standard to allow EPA
to consider cost.
Although it alone is not interpreted to
imply economic considerations, the term
" "reasonable," present in section 4004(a),
has been read in other contexts to imply
a balancing of competing factors. (See
e.g., American Textile Manufacturers
Institute, Inc. v. Donovan, 452 U.S. 490
(1981); City of New York y. EPA, 543 F.
Supp. 1084 (S.D.N.Y. 1981).) The
legislative history indicates that -;
Congress recognized cost versus health
and environmental protection to be the .•
competing considerations in revising the
subtitle D Criteria. (See e.g., 130 Cong.
Rec. S13814 (daily ed. Oct. 5,1984)).
Furthermore, use of the word
"probability" in "no reasonable
-------
50984 Federal Register / Vol. 56, No. 196 7: Wednesday;. October Q.M99J /
probability" implies the discretion to
impose requirements that are less
certain to eliminate a perceived health
or environmental threat than standards
that are "necessary to protect human
health and the environment," thus
allowing for the consideration of other
factors such as cost
Based upon these considerations, EPA
believes it has the explicit discretion to
interpret the phrase "practicable
capability" under section 4010(c} to
allow the consideration of the cost of
the revised criteria to MSWLF owners
and operators.
The legislative history supports the
above statutory reading that EPA may
impose different standards under RCRA
subtitle D from those imposed under
RCRA subtitle C. In the Senate Report to
S.757, Congress, in discussing EPA's
mandate in revising the subtitle D
criteria for MSWLFs, stated:
(t)hc multiple liner-leachate collection
system requirements of new section 3004(f)
applicable to Subtitle C facilities are not to
be automatically incorporated in revised
criteria for landfills or surface impoundments
which are Subtitle D facilities.
S, Kept. 98-248 at SO. Senator Stafford,
In his remarks on the Senate floor, also
provided for the possibility of
differences between the subtitle D and C
standards. He stated:
(t)he underlying standard for facilities
subject to this amendment to subtitle D
remains protection of human health and Ihe
environment. Requirements imposed on
facilities may vary from those for Subtitle C
facilities, however, and still meet this
ttandard.
130 Cong. Rec. at S13814.
Finally, two aspects of the nature of
Congress* regulation of MSWLFs
containing household or small quantity
generator hazardous waste support a
Congressional intent to preserve
differences between the RCRA solid and
hazardous waste programs. First,
Congress chose to regulate such
facilities by revising the subtitle D
criteria rather than subjecting them to
the subtitle C requirements. Second,
Congress' statutory directives in the
HSWA amendments to revise the "
subtitle D criteria lack the
proscripliveness of similar amendments
to the subtitle C program. In place of
Congress' imposition of land disposal
restrictions and precise liner and
leachate collection requirements in the
1984 amendments. Congress merely told
EPA to revise the Criteria under section
4004{a) as necessary to protect human
health and the environment, taking into
consideration practicable capability.
Furthermore, Congress specified only
the "minimums" of such; a program,
mandating that the revised criteria -.
include requirements for ground-water
monitoring, location standards, and
corrective, action.
As a consequence, EPA has
determined that it has the discretion to
create a regulatory program for RCRA
subtitle D MSWLFs that would allow for
standards that are distinct from the
RCRA subtitle C program for hazardous
waste facilities, and thus EPA can allow
for greater flexibility in State solid
waste programs.
B. Regulatory Options Considered and
Summary of the Regulatory Impact
Analysis
The Agency considered a number of
broad regulatory options for today's
final rule and, in accordance with
Executive Order 12291, prepared a
Regulatory Impact Analysis (RIA).
December 1990, that evaluates the
benefits and impacts of each of the
regulatory options. The RIA also
contains an analysis of the economic
impact on small communities, as
required by the Regulatory Flexibility
Act (RFA). Complete information on RIA
methodology, data, assumptions, and
results is contained in the Final
Regulatory Impact Analysis. Information
on the availability of the RIA is
provided in the Supplementary
Information Section of today's preamble.
In addition to the RIA, in Spring 1991,
the Agency updated and revised the
Regulatory Impact Analysis to
incorporate changes in state regulations
as of January 1991 and to represent the
increased flexibility of today's rule,
referred to as the Hybrid approach.
These changes in assumptions, result in
a significant reduction in risk, cost and
economic estimates for all options
considered. Results from this revised
analysis are presented below and are
presented in the Addendum to the RIA,
August 1991. Information on the
availability of the Addendum is
provided above.
The Agency'considered, in addition to
the original proposal, four broad . .
regulatory options for today's final rule.
These options included (1) the "Limited ;
Option approach" (2) the "subtitle C,
approach" (3) the "Hybrid approach,"
and (43 the "Categorical approach." ' .
Under the limited option approach, the ;
revised Criteria would be limited to the
enumerated requirements identified by
the 1984 Hazardous and Solid Waste
Amendments—location restrictions,
ground-water monitoring, and .corrective.
action for ground-water contamination.
Rather than focusing on preventing
environmental contamination in the first
instance, this pptic-n relies almost 5
exclusively on detection and expensive.;
clean-up programs to protect human
health and the environment.; Other than
location restrictions, owners or
operators of MSWLFs would not be
required to comply with any preventive
measures such as proper landfill design,
operation, and closure.
Under the "subtitle C" option, owners
and operators of MSWLFs would be
subject to a comprehensive set of
facility requirements identical to those .
established for hazardous waste
disposal facilities under subtitle C of
RCRA. The final "Hybrid" option, which
is the approach taken in today's final
rule, combines the limited option
provisions with a range of preventive
measures appropriate for MSWLFs and
provides States seeking to accept the
program with the flexibility to adopt the
preventive measures most appropriate
to their State. In particular, the Hybrid
approach addresses all of the categories
of control included in the subtitle C
option, but is less stringent and,
therefore, more flexible in several
respects, most notably in the landfill
design and closure requirements. Thus,
while differing in content, both the
Hybrid and subtitle C options include
requirements relating to facility location,
design.-operation, ground-water ; :
monitoring, corrective action, closure
and post-closure care, and financial
assurance, ,
Finally. EPA investigated a fourth
approach, the categorical approach,
whereby landfill design standards
would be categorized based on various
factors, particularly hydrogeology and
"precipitation. During rule development.
EPA and the States attempted to
develop such an approach. The
approach'.was rejected by both Agency
research and technical staff, and by the
States,, because it was technically
infeasibletcf tailor categories to the
wide variety of situations throughout the.
'" country. 'All attempts to'simplify the
categories led to,bver or under, , ,
regulation.: Each attempt suffered from a,
variety of technical deficiencies.
Because the Agency rejected the.
categorical approach, this approach will;
not be discussed further in this .:.. •'.
preamble. Rather EPA's evaluation of
this .option is addressed in the detailed :
background discussion,on the,design •
criteria presented in.Appendix,E to....;,.
today's preamble. la addition; the,
Regulatory Impact Analysis results for
-------
Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 /Rules and Regulations 50985
this approach are not presented in this
section because they are very similar to
the Hybrid option. '*..-••..
In evaluating these options, the
Agency's primary criterion was meeting '
the statutory requirement of protection
; of human health and the environment. In
addition, consistent With the Agency's
interpretation of the statutory basis for
today's rule, EPA considered the
practicable capability of owners and
operators of MSWLFs. From the
legislative history, as explained -
previously in this preamble, EPA
determined that "practicable capability"
includes both "the economic and
technical capabilities of owners and
. operators, which, if exceeded, could :•
result in significant disruptions in
current solid waste disposal practices.
Because the subtitle C Approach was
significantly more expensive that than
the hybrid approach (four times higher),
EPA determined that it was beyond the
bounds of "practicable capability." For
this reason, while full discussion of the
subtitle C option is included in the RIA,
it will not be included in the following
discussion on costs and benefits.
Additional informatipn on the subtitle C
approach can be found in the RIA. . /.
In evaluating and selecting the
regulatory approach for today's rule,
EPA attempted to strike the most
appropriate balance between
considerations of human health and
, envirpnmental protection and :
practicable capability. EPA gathered
and analyzed available informaion on
the health and environmental benefits
and the cost and economic impacts of
the various options. ; ' '
1. Risk and Resource Damage Analysis
The Agency first evaluated the human
health and resource damage benefits of
each of the options. Where possible, the
Agency developed quantitative
estimates of these benefits. For example,
the Agency estimated the reduction in
carcinogenic health risks achieved and
• resource damage, avoided by the various
options. EPA also carefully considered
and qualitatively evaluated,other
benefits that are difficult to quantify, :
such as the intrinsic value of clean
ground water to future generations; non-
quantified benefits are discussed in the
next section.
There are several limitations to the
S benefits analysis that should be
recognized. Only benefits concerning
ground-water contamination are
considered^-benefits from increased
protection of surface water and air are
not included. Benefits beyond 300 years
are also riot included—additional
benefits would be captured if the , ,
modeling period extended beyond 300
years. Finally, potential changes in
waste toxicity and demographics are not
completely factored into the analysis—a
reduction in toxicity of waste gbing to
MSWLFs would reduce the benefits of
this rule, while increases in populations
living near MSWLFs would increase
benefits.
EPA found that both options, the Final
Rule and the limited option would
achieve roughly similar results for one
benefit measure—reduction in human
health risks from drinking contaminated
ground water. As indicated in Table 1,
both the Hybrid approach and the
limited approach would eliminate 2 -
cancer cases (40 percent reduction from
baseline) occurring over 300'years from
one set of ^,000 replacement landfills
similarly located to those now operating
in the U.S.
As EPA predicted, the baseline of 5.7
cancer cases caused by one set of 3,000
replacement MSWLFs is low. This low
predicted cancer incidence is due to
several reasons. First, more than half (54
percent) of the landfills have no
population living within a mile radius,
and therefore, in this analysis, were
assumed to present no human health
risks. Second, EPA modeled human
health risk by using the average
population density near MSWLFs (i.e.,
1.6 people per acre). Risk will increase if
population living near landfills
increases, as is very likely in the future.
Third, EPA modeled risk using median
leachate concentrations. If EPA had
used the 90th percentile of leachate
concentration in this analysis, the
human health risk estimates would have
increased by a factor of ten. Therefore,,
while near-term .human exposure to
contaminated ground water is clearly a
concern for a portion of MSWLFs, the
larger benefit of the MSWLF rule is
preventing ground-water contamination
that could lead to human exposure in
the future, and avoiding loss of ground-
water resources. Fourth, EPA assumed
over half of the new landfills will be
designed with liners due to current state
requirements. Risk reduced by state
requirements is considered baseline
reductions and is not included in this
analysis. The inclusion of
regionalization, state requirements and
increased flexibility of the rule are the
major reasons the number of .cancer
cases are reduced from those reported in
the RIA. .
TABLE 1.—PREDICTED POPULATION RISK J
ACROSS ONE SET OF . REPLACEMENT
MSWLFs2 30-YEAR POST-CLOSURE
CARE PERIOD
Regulatory scenario
Baseline •. . .
Hybrid Approach ...
Limited Approach..
Total
cancer
cases for
one set of
replacement
MSWLFs
57
3.3
3.3
Reduction
of cases
3 NA
2.4.
.2.4
Regulatory scenario
Hybrid Approach .............
Limited Approach............
Average
annual
cancer
cases
caused by
one set of
replacement
landfills
over 300
years4
02
.01
• .01
Reduction
of average
annual
cases
. - •
.01
.01
1 Population risk over the 300-year simulation. .
2 Note that these numbers represent risk generat-
ed only from 20. years of landfilling modeled over
300 years. They do not-represent the total risk of
landfilling in perpetuity and, therefore, are not com-
parable to the annualized cost numbers (which rep-
resent landfilling in perpetuity) presented later in this'
section.
8 Not applicable.
* These estimates are the total cancer cases
caused by one set of new landfills divided by 300
years. EPA does not believe that those numbers are
not comparable to the annualize costs estimates
presented later in this section. ; :
An alternative way to consider -'•
benefits is to look at long-term : '.
protection of both human health and the
environment, i.e., prevent resource
damage. EPA measured a surrogate of
this resource .damage by estimating the
gross cost of replacing contaminated
ground water at drinking wells with an
alternative water supply system. (EPA
recognizes that this estimate, since it is
"gross costs" may be overstated; "net •
costs" would be somewhat lower.) Since
this measure assumes that contaminated
water is not used, but replaced (and
therefore no human exposure occurs),
this measure is not additive to the risk
analysis presented earlier. It is simply a
second method for measuring benefits.
The .Agency determined that the hybrid
option would provide more effective,
long-term protection (prevent resource
damage) than the limited approach.
Specifically, as shown in Table 2, the
Agency found that the Limited option ": ' '
avoided less than half ($120 million) in
gross resource damages than the final
rule ($270 million). :
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50986 Federal Register / Vol. 56, No. 198 / Wednesday, October 9, 1991 / Rules and Regulations
TABLE 2.— TOTAL RESOURCE DAMAGES
FOR ONE SET OF REPLACEMENT LAND-
(Present vakjo In nriMons of dollars]
Reguttlory scenario
Bttrtno .M...........
Hybrid Approach..™™...
Un*»d Approach..,,,......
Resource
damag*
S560
290
440
Resource
damage
avoided
*NA
S270
120
1 Aoums* 20 yav Kia tpan for landfills.
2, Other Benefits
EPA believes there are several
benefits to using the hybrid approach
other than the risk and resource damage
benefits which were quantified in the
RIA. First, EPA believes that the
promulgation of federal municipal solid
waste landfill criteria will increase
public confidence that landfills are
designed to protect human health and
the environment. EPA believes that this
Increased confidence will reduce
opposition to landfills and make the
siting of new landfills less difficult
Second, EPA's modeling indicates that
contamination of ground water will
occur at a large portion of landfills if no
controls are used. While the resource
damage measure presented earlier (the
cost of replacing contaminated ground
water for those who use it) helps
quantify the lost use value of a
groundwaler resource, EPA believes it
does not always reveal the total extent
of ground-water contamination or the
true impacts of that contamination. For
instance, ground-water contamination.
has, in some communities, resulted in
decreased property values. EPA believes
that the final rule, by limiting
contamination of ground water from
landfills will protect property values
located within the vicinity of new
landfills. Also, there is a value that
people place on pristine {non-
contaminated) resources, even if they do
not intend to use these resources. This
value is called a "non-use value," or an
"existence value." By limiting releases
to the environment, EPA believes that
the final rule will protect the existence
value of ground water near landfills.
EPA has not quantified these benefits
for this rule, but is investigating these
benefits of protecting ground-water and
vill induda an analysis of these benefits
for the final Corrective Action rule to be
promulgated under RCRA subtitle ,C.
Finally, other benefits are expected
from the final rule. These include
minimizing the need for future cleanups
and thus reducing potential economic
impacts on future generations (or the
federal government, as in the case of a .
Superfund site). The final rule, by more
fully reflecting flie cos! of safe waste
disposal, will also lead to more _
responsible waste management
practices and promote resource
conservation.
3. Costs and Economic Impacts
The Agency evaluated costs by: (1)
Using the subtitle 13 risk model to
determine design requirements for
landfills under the performance-based
options and to determine which landfills
would trigger corrective action and (2)
using the subtitle D cost model to
estimate cost
Costs are estimated for a single set of
landfills which in theory could be built
at precisely the same types of locations as
the 6,000 MSWLFs estimated to exist in
EPA's 1988 survey. EPA has not
estimated the social opportunity cost of
premature closure of municipal solid
waste landfills. Thus, to the extent that
any of the alternative regulatory
scenarios cause landfills to be closed
prior to the .expiration of their expected
useful lifetimes, EPA's .estimates do not
take these costs into account Likewise,
EPA did not estimate any benefits
resulting from premature closure of
landfills.
Compliance costs in the RIA are
estimated for two scenarios: the upper-
bound assumes a 40-year post-closure
care period (PCC); the lower-bound
assumes a 10-year PCC period,
increased recycling, shifts of waste to
combustion, "and regionalization of small
landfills. However, the Agency believes
that actual costs and economic impacts
of the rule will fall somewhere between
the upper and lower bounds presented
in the RIA. For this reason, the
Addendum results (which are discussed
here) presents cost and impacts for one
scenario only: a, best estimate which
assumes partial regionalization, shifts of
waste to recycling and combustion, and
a split between the use of a 10 meter
and a 150 meter point of compliance. In
addition, changes were made to the RIA
analysis to incorporate state credits (i.e.,
if a provision is required by state
regulations, costs are not assigned to the
federal options) and better represent
increased flexibility in the final rule.
The Agency's best estimate for total
annualized cost of the Hybrid approach
is $330 million (see Table 3). These costs
fall in the lower end of the range of
estimated costs for the other regulatory
scenarios. For example, the annualized
costs for the subtitle C approach is
estimated to be close to $1.3 billion
while the costs for the limited option is
S180 million. Meeting design standard
and ground-water monitoring
requirements are the major cost
elements of both the Hybrid and subtitle
C approaches. Corrective action and
ground-water monitoring account for.lhe
majority of costs under the limited
option.
The total present value cost of one set
of new landfills (Table 3], as opposed to
annualized costs of landfilling in
perpetuity, is another way to present
costs. The risk and resource damage
estimates presented earlier are "total"
estimates for one set of new landfills
and thus are parallel to the total present
value cost estimates presented in Table
3.
TABLE 3.—SUMMARY OF COMPLIANCE
COSTS FOB OPTIONS BEST ESTIMATE
i
1
Hybrid
approach
Subtitle C ...
Limited
approach
Total
annua-
lized {$ in
millions)
$330
1,300
180
s
Average l
cost per
ton
;
$2!
7
1
1 i
. Total
present
.value *
cost of
one set
of new
landfills
($in
billions)
$5.8
22.9
2.7
* The average cost per ton is a national weighted
average figure determined by dividing total national
costs by total annual tons' disposed.
* The total present value cost for one «et of new
landfills presents costs of the rule in a format com-
parable to the risk and resource damage estimates
presented earlier in the preamble. These costs do
not include Increased diversion of waste due to
combustion and recycling because the risk and re-
source damage estimates (Tables 1 & 2) do not take
into account this additional diversion.
The average annualized incremental
cost per ton under the Hybrid approach
is less than $2 per ton, compared to $7
per ton for the -subtitle C approach and
$1 per ton for the Limited option (see
Table 3). To put these figures in
perspective, the current average cost for
disposal of municipal solid waste is $46
per ton. Therefore, a $2 per ton increase
for the Hybrid option represents a four
percent increase over current baseline
costs. ' ,
The maximum and minimum cost per
ton presented in Table 4 give an
indication of the distribution of costs
across landfills within each option.
While all options have a minimum cost
per ton of $1, ihe maximum costs per ton
vary.
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Federal Register / Vol. 56, No. 196 /''.Wednesday. October 9. 1991 / Rules and Regulations 50937
TABLE 4.—RANGE OF INCREMENTAL COST
PER TON ACROSS OPTIONS
Subtitle C approach
Limited approach
Minimum
cost *
$1
1
1
Maximum
, cost2
" ' $24
92
20
'The minimum cost represents costs at large
landfills located in States that already have ground-
water monitoring and design requirements.
'The maximum costs for the Hybrid approach
reflects design costs of small landfills that are locat-
ed in States that have few existing requirements; the
maximum costs for the limited approach reflect costs
for small landfills that incur high corrective action
costs.
The range of incremental costs shown
in Table 4 can be attributed to three
factors: the wide distribution of landfill
sizes, the diversity of current State
regulatory programs, and the differing
degrees of flexibility available to States
in administering the various regulatory
approaches. Landfill size is a. key factor
in determining the cost per ton, with
larger landfills benefitting significantly
from economies of scale. Landfills
located in States that have already
implemented comprehensive-solid waste
regulatory programs will face lower
"incremental costs than landfills in States
that currently have few requirements.
Finally, the flexibility available to States
in the Hybrid approach gives approved
States the ability to allow landfill
owners and operators to choose the
least-cost 'design that meets the
performance standard.
Table 5 illustrates the importance of
landfill size and a performance-based
regulatory approach. Looking at an
upper-bound cost scenario (i.e., 40-year
post-closure care period), the cost under
the Subtitle C option would drop'from
$73 per ton for a 10 TPD landfill to $14
per ton for a 1500 TPD landfill. This
clearly'demonstrates the benefits of
economies of scale and further supports
the trend toward larger, regional
landfills. Table 6 also highlights the
benefits of a performance-based
approach, such as the Hybrid option; A
subtitle C design approach would
impose a cost of $73 per ton oh all 10
TPD landfills, whereas under a flexible
performance .standard approach, costs
could vary from $47 to $16 per ton,
depending on the design necessary to
meet the performance standard.Thus,
under a performance-based approach
owners and operators have a significant
opportunity to reduce cost's by siting
now landfills in good locations.
TABLE 5.—LANDFILL DESIGN OPTIONS;
AVERAGE INCREMENTAL COST PER TON
CNo state credit included]
._
Landfill size
10 TPD
175TPD
1500 TD ...
Subtitle
C*
$73
26
14
Performance based design
options
Com-
posite
liner/
cover2
$47
17
9
Syn-
thetic
liner/
cover 3
$37
12
6
Un-
lined
veg.
cover*
$16
3
2
1 Composite liner plus synthetic liner, composite
cover, double leachata collection system.
" Composite liner synthetic cover, leachate collec-
tion system.
8 Synthetic liner synthetic cover, no leachate col-
lection system.
* Unlined, vegetative cover, no leachate collection
system.
The economic impact analysis looks
at cost per household, cost as a percent
of median household income, and cost
as a percentage of community
expenditures. As shown in Table 6, the
average incremental cost per household
of the Hybrid approach is $4 per year.. .
This cost is higher than the limited
.approach ($2 per year).
TABLE 6.—AVERAGE 1 COST PER
HOUSEHOLD (CPH) PER YEAR
Regulatory scenario
Hybrid Approach
Limited Approach :.........
• Best
estimate
cost
scenario
$4
2
1 Average CPH estimated by dividing total national
cost by total number of households.
The economic impact results in Table
7 indicate that neither the Hybrid
approach or the limited approach would
exceed the moderate impact threshold
for individual household (defined for
this analysis as an incremental increase
in household costs of greater than $100
per year, or roughly $8 per month). EPA
determined that impacts indicated by
incremental costs as a percentage of
each community's median household
income are similar to cost per household
results, and thus cost as a percentage of
median household income results are
not presented here. .
TABLE 7.—ADDITIONAL MEASURES OF
COST PER HOUSEHOLD (CPH) PER YEAR
[40-Year Post-Closure Care Period]
Regulatory scenario
Hybrid Approach......
Limited Approach
'Percent of •
communi-
ties with
CPH>$100
0.0
0.0
Maximum
CPH '
$62
52
1 Maximum CPH determined by calculating CPH
from landfill with highest cost per ton.
In addition to impacts on.individual
households, a key measure the Agency
used in estimating the economic impacts
of the various regulatory options was
the percentage of a community's total
budget that would need to be spent on
solid waste disposal as a result of this
rule. EPA's available data indicate that
the typical community now spends
approximately 0.5 percent of its total
budget on solid waste disposal (1982
Census of Governments). The Agency
considered a doubling of these costs—
i.e., increases of solid waste disposal
costs to more than 1.0 percent of a
community's total budget—to be a •
significant economic impact that may
exceed the practicable capability of
many of these communities.
As indicated in Table 8, EPA found
significant differences in costs as a
share of the total community budget for
the various options. Under the Hybrid
approach and limited option costs would
exceed the 1 percent impact threshold
for less than 2 percent of local
governments (representing less than one
percent of the U.S. population).
TABLE 8.—COST AS PERCENTAGE OF
-.EXPENDITURES (CPE)
Regulatory scenario
Hybrid Approach
Limited Approach............
Percent of
communi-
ties with
CPE> 1%
best
estimate
cost
scenario
1.4
1.4
Maximum
CPE1
(percent)
3.1
2.6
1 Maximum CPE represents the CPE for communi-
ty with highest ratio of cost per community expendi-
ture. _'-.-•
The results presented in Table 8 are
significantly lower than results in the
original RIA. The strong mitigation of
impacts is a result of assumed increased
regiorializatipn, increased state .
regulations, and flexibility in ground-
water monitoring requirements. These
changes in the analysis have resulted in
the number of significantly impacted
communities being greatly reduced from
RIA estimates.
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50088 Federal Register / Vol. 56. No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
EPA believes regionalization will play
such a major role in mitigating the long-
term impacts of all of the regulatory
approaches for the following reasons.
EPA's small community analysis
Indicates that the majority [90 percent)
of impacted communities are small
communities [i.e., fewer than 5,000
people). These small communities
typically operate small landfills, which
handle only a small portion of the total
municipal solid waste stream. As shown
in Table 9, small landfills [less than 17.5
TPD) represented 51 percent of the total
number of landfills in 1986, yet handled
only 2 percent of the total waste.
Ill addition, these small landfills tend
to be poorly located and designed, and
operate at the high end of the cost per
ton scale. As a result, small communities
have a number of strong incentives to
regionalize and, in fact, many of them
have moved or are currently moving to
regional facilities. This trend is
evidenced by the drop in landfills over
the past twenty years. While 1970
estimates of the U.S. landfill population
neared 18,000, EPA estimates that in
1900, only approximately 6,000 MSWLFs
were operating—and that the total
number of landfills continues to
decrease. Because of this strong trend
toward regionalization, the Agency
believes that the long term impacts of
the regulatory options will decrease
over time.
TABLE 9.—-1986 SIZE AND WASTE DIS-
TRIBUTION OF MUNICIPAL SOLID WASTE
LANDFILLS *
LaixifJI sizo (TPD)
1-17.5.
17,«-W „,
S1-1??,,,, ,„„
1SMU375 ,„ „ ,
278-563 .~™™ .
664-1,125
>1,12S ,
Percentaga
of total
landfills
61
17
13
7
5
3
3
Pareentaga
of total
waste
handled
2
4
9
11
16
19
40
1 Numbers may not add duo to rounding
In addition to the mitigating affection
of rcgionalizalion on small community
impacts, EPA has included a small
community exemption in today's final
rule. This exemption applies to small
landfills (less than an annual average of
20 TPD) in arid [receiving less than 25
inches of rainfall a year) or remote areas
which do not have any reasonable
alternative for regionalization, if there is
no evidence of existing ground-water
contamination. The small community
provision would allow these
communities to be exempted from
certain requirements of this rule, thereby
reducing economic impacts on these
communities. For more information on
this exemption, see section IV.A of this
preamble.
4. Selection of Today's Regulatory
Approach
The Agency believes the Hybrid
option strikes the appropriate balance
between protection of human health and
the environment and consideration of
practicable capability and, therefore,
has selected this approach for today's
final rule.
As.discussed above, preventive
approaches, such as the Hybrid
approach, provide more effective, long-
term protection of human health and the
environment than the Limited Rule
option. At the same time, the Hybrid
option imposes lower costs than the
subtitle C option. In developing this rule,
EPA was very concerned about the
potential impacts on small communities,
including small Indian Tribes and,
therefore, carefully evaluated this issue.
EPA's analysis showed that the majority
of the communities that would be
significantly impacted are small
communities that manage relatively
small MSWLFs.
To reduce impacts on small
communities, EPA has added a special
exemption to today's final rule directed
at small landfills serving communities,
including Indian Tribes, that have
barriers to regionalization. This
provision exempts small landfills (those
that dispose of less than 20 TPD of solid
waste daily on the average) in certain
settings from the high-cost requirements
in today's rule. This exemption is
available to those small landfills in
remote or arid locations that do not
have evidence of ground-water
contamination.
EPA believes that these limited
impacts on small communities will be
further reduced by two factors. First, as
discussed above, many small
communities are expected to reduce
community landfill costs by taking
advantage of larger economies of scale
through participating in regionalized
landfills. Second, the performance-
based element of the Hybrid approach
provides the option for communities to
avoid high control costs by siting new
landfills in non-vulnerable locations. A
performance-based approach provides
communities with opportunities to
dramatically reduce costs by siting new
MSWLFs in areas where the
characteristics of the site indicate that a
less costly design may be used.
EPA believes that those small
communities and Indian Tribes that
cannot take advantage of better siting
opportunities, regionalization, or the
exemption, should be subject to today's
requirements to ensure protection of
human health and the environment and
-to avoid costly future clean-up
problems.
C. Pollution Prevention Aspects of Final
Rule
Today's final rule establishes revised
standards for MSWLFs that set in place
a strong economic incentive for
increased source reduction and
recycling. Specifically, today's jule, by
calling for communities, including public
and private entities, to pay the true cost
of safe landfilling, makes source
reduction and recycling programs more
competitive.
Specifically, today's final rule
establishes this economic incentive by
requiring a wide range of design and
management practices aimed at
preventing releases from municipal solid
waste landfills. In addition, the location
provisions of today's rule prevent or
restrict the siting of landfills in areas
that are especially vulnerable to
contamination. For example, new
landfills [including lateral expansions of
existing landfills) are prohibited from
locating in the 100-year floodplain
unless special features are incorporated
into the facility design. Further, today's
rule requires new landfills to be
equipped with a composite liner, or, in
approved States, an alternative design *
that will prevent unacceptable releases
from the landfill
The operating criteria also contain a
variety of landfill management
requirements that are aimed at
preventing potential environmental or
public health problems. These '
provisions include restrictions on public
access to the landfill, daily cover
requirements to minimize disease vector
and other problems, methane gas
controls to prevent gas explosions,
controls on runoff from the facility to
prevent releases to surface and ground
water resources, and restrictions on the
landfilling of certain wastes, including
hazardous waste and liquid wastes, to
minimize the toxicity and quantity of
leachate that may threaten ground
water.
Finally, today's rule also incorporates
preventive measures into the closure
and long-term Care of landfills. At
closure,, the owners or operators of all
landfills must install a final cap
designed to minimize leachate
generation and migration, and then
maintain and monitor the site for 30
years following closure (unless an
approved State sets an alternative time
period). - •..,,.
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Federal Register / Vol. 56. No. 196 / Wedhesday,_ October 9, 1991 / Rules arid Regulations 50989
IV. Major Issues
In finalizing today's rule, EPA had to
address a number of major issues. The
general issues—the application, of .
today's rule to small MSWLFs, the rule's
regulatory structure, implementation of
the revised Criteria, ground-water
policy, and pollutant limits for sewage
sludge—are discussed in this section of
the preamble. The specific technical
issues pertaining to.facility design
criteria, ground-water monitoring
requirements, financial responsibility
requirements, the/effective date of
today's rule, and the application of this
rule to closed facilities are discussed
later in the technical appendices to the
preamble. Moreover, as discussed
above, the specific criteria for EPA
approval of State programs will be
established in a separate rule expected
to be proposed in early 1992.
A. Small Landfills
One of the most significant issues
raised by commenters was the
application of the revised Criteria to
small landfills. This is an issue for two
reasons. First, the estimated universe of
approximately 6,000 MSWLFs subject to
the revised Criteria includes a large
number of small facilities. Data acquired
by EPA through the 1986 survey of
MSWLF owners and operators (Ref. 2)
indicate that about SO percent [3,000] of
MSWLFs nationwide handle 20 tons or
less of munieipal solid waste daily, A
landfill that receives 20 tons of
municipal solid waste per day serves a
community of approximately 10,000
people. Second, as proposed, the revised
Criteria would have imposed significant
costs on these small MSWLFs and the
small communities, including small
Indian Tribes, they serve. The most
significant costs are associated with the
design requirements, ground-water
monitoring, and corrective action. A
unique characteristic of small landfills is
that they cannot benefit from the
economies of scale available to larger'
MSWLFs.
The proposal treated all MSWLFs the
same, regardless of size. EPA stated in :
the proposal that size represents only
-one factor in determining potential risk,
and that other variables, .such as design
and operating controls, location and
climate characteristics, and waste
streams, can be significant determinants
of risk regardless of MSWLF size. The
proposal did provide States some
flexibility to address particular site-
specific conditions present at MSWLFs,
including small facilities. In addition, the
proposed 18-month rule effective date,
combined with the five-year phase-in for -
ground-wafer monitoring, provided time:
for owners or operators of small
MSWLFs to comply with the revised
Criteria or to make other arrangements
for solid waste management. The
Agency requested public comment on
whether there should be special
consideration given to small landfills
under the final revised Criteria,
The Agency received extensive
comments that directly addressed the
issue of small MSWLFs. Many
commenters were concerned that small
communities, including small Indian
Tribes, that own small landfills would
face a shortage of professionals
appropriately trained in landfill design,
installation, and operation that would
prevent or severely hamper timely
implementation of the revised Criteria.
Additionally, commenters expressed'
concern that small communities would
' have insufficient financial resources to
upgrade their existing small landfills to
comply with the revised Criteria. They
feared that residents of small
communities would resist an increase in
landfill tipping fees to cover the
additional management and compliance
costs associated with the revised
Criteria. Moreover, some commenters
feared a resurgence inillegal dumping if
me Criteria resulted in the closure of the
many small landfills now in operation.
. In addition to the economic
constraints faced by small communities,
commenters pointed out that significant
obstacles to regionalization of solid
waste management exist, particularly in
remote areas of the country where
, communities tend to be small and
separated by great distances. In certain
pc-rtions of Alaska, for example, villages
often are separated by miles of tundra.
During a large part of the year surface
transportation of municipal solid waste
becomes virtually impossible due to •
winter weather conditions, so
transporting waste to a distant regional
facility is not'practicable. Commenters
requested that these portions of Alaska
not be required to comply with today's .
requirements. Other commenters noted
that regionalization of solid waste
management in rural areas of the West
that are arid and have few, widely
dispersed small communities would be
hampered by the need to transport
waste over great distances. Moreover,
due to the small amounts of annual
precipitation in this region there is little
generation of landfill leachate, and
ground waters are great distances below
the surface. Commenters argued that
these communities, including small
Indian Tribes, should be accorded
- special treatment. Without such ..
treatment, they indicated that they
would be forced to close their landfills.
The end result would be increased^.
littering and open dumping, including
dumping of trash in waterways.
On the other hand, a.number of
commenters agreed with the proposal
and urged that there be no exemptions
granted to small MSWLFs. They argued
that even small landfills can pose
significant threats to human health and
the environment. These commenters
believed that marginal, small MSWLFs
should be closed in favor of more
protective, modern facilities to promote
the regionalization of solid waste.
management
EPA agrees that regionalization of
solid waste management in rural areas,
employing larger, better located,
designed, and operated MSWLFs, is '
preferable to continued use of small,
poorly planned facilities that may pose
health and environmental threats to
their communities. The Agency's
original thinking with respect to small
MSWLFs was that the move to greater
regionalization, in order to benefit from
the economies of scale, would be a
secondary benefit of the revised
CriteriarThe Agency recognizes,
however, that regionalization is not a
feasible alternative for some small
communities and acknowledges the
plight of small MSWLFs in areas of the
country where few solid waste •
management alternatives exist.
In addition, the Agency is sensitive to
the hardship the revised Criteria would
create for many of these small
communities, including small Indian
Tribes. The Regulatory Flexibility
Analysis (RFA) performed for this rule
indicates that some'small communities
will be impacted by the costs of
complying with the revised Criteria. EPA
defined the significant impact threshold
to be compliance costs exceeding one
percent of a community's total budget
(which corresponds to a doubling of
solid wsfe disposal costs in the typical
community}. EPA estimated, under
reasonable worst case conditions, that
the majority of the communities that
would exceed this significant impact
threshold would be small communities.
To mitigate these impacts, EPA made a
number of changes in today's rule that
will isnefit all small MSWLFs and
addecf a special exemption that will
grant specific relief to certain small
MSWLFs without practicable regional
wastejnanagement alternatives. As
mentions^ previously in this preamble,
this specul exemption for small .- " .,
MSWLFs Kduced the impact of the rule.
Less than Avo percent of local
governments exceed the significant
economic impact threshold.
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50990 Federal Register / Vol. 56. No. 196 / Wednesday. October 9, 1991 / Rules and Regulations
Aa a general matter, some of the
changes in today's rule that are
applicable to all MSWLFs will benefit
small landfills. For example, today's rule
allows all MSWLF owners and
operators time to comply with the more
costly provisions of the revised Criteria
by phasing in ground-water monitoring
requirements over a five-year period
beginning on the date of publication of
today's rule. In addition, EPA is delaying
the effective date of the financial
assurance requirements until 30 months
after publication of this rule, which
should benefit small communities.
Finally, today's rule provides that States
with approved programs may shorten
the MSWLF post-closure care period on
a case-by-case basis. EPA believes that
all these measures benefit small
MSWLFs.
More specifically directed to small
MSWLFs, EPA granted relief in today's
rule to certain small MSWLFs where
compliance with the revised Criteria is
beyond the practicable capability of
their communities and circumstances
make regional waste management
impracticable. Today's rule exempts
owners or operators of certain small
landfills from certain portions of the
criteria, including the design, ground-
water monitoring, and corrective action
requirements of the revised Criteria. To
qualify for this exemption, the landfill
must meet the following criteria: (1) The
landfill receives less than 20 tons per
day of solid waste on an annual
average, (2) there is no evidence of
existing ground-water contamination
from the landfill, and (3) one of the
following conditions exists: (A) The
landfill serves a community that
experiences an annual interruption of at
least three consecutive months of
surface transportation, which prevents
access to a regional waste management
facility, or (B) the landfill serves a
community for which there is no
practicable waste management.
alternative and the landfill is located in
an area that annually receives 25 inches
or less of precipitation. These terms and
conditions are defined below.
Today's rule defines what the Agency
considers to be a "small municipal solid
waste landfill" for the purposes of the
small landfill exemption. Numerous
commenters suggested possible
definitions for small MSWLFs, including
those MSWLFs that receive less than
500-1,000 tons of municipal solid waste
annually, or serve a population of
between 1,000 and 20,000 persons. The
Agency evaluated these wide range of
comments and selected a cutoff of 10,000
persons which corresponds to a landfill
size of 20 tons per day. This cut-off falls
within the range suggested by
commenters and captures the small
communities that will be most severely
impacted by the final rule. The Agency
has tried to strike a balance between
granting relief to the appropriate small
communities versus exempting all small
landfills. The Agency evaluated its
existing data base to find that over 50
percent of existing landfills dispose of
less than 20 TPD. These 50 percent of
the landfills, however, only dispose of 2
to 3 percent of the total waste disposed.
Therefore, only a small amount of the
total waste disposed is affected by the
exemption. For the above reasons, the
Agency determined that landfills serving
communities (including Indian Tribes) of
fewer than 10,000 best defined a "small"
.MSWLF for the purpose of granting .
relief from the most costly requirements
in the revised Criteria.
In order to facilitate implementation,
today's rule defines "small MSWLFs" hi
terms of the amount of the waste
received at the landfill rather than the
population served by the landfill.
Because population and waste
generation patterns will vary over time,
EPA believes a definition based on
quantity of waste received at the landfill
will be more direct and easier to
implement. The amount of waste
disposed at a MSWLF is either readily
available or can be easily estimated.
Therefore, the Agency chose a cut-off of
20 tons per day on an annual average,
which corresponds to the waste
generation of a community of 10,000.
Specifically, this figure was derived by
multiplying the average amount of solid
waste generated daily per person in the
United States (4.0 Ibs.) by the
community size (10,000). The 4.0 Ibs. per
person figure is contained in the EPA
Report "Characterization of Municipal
Solid Waste in the United States: 1990
Update" (Ref. 9). In setting the 20 ton per
day limit, the Agency specifically
included the phrase "on an annual
average" to address situations in which
small landfills operate only certain days
of the week. In such situations, a small
landfill serving a population of fewer
than 10,000 may receive more than 20
tons of municipal solid waste per day
provided the average amount received
by the landfill does not exceed 20 tons/
day over a one-year period.
Therefore, § 258.1(f) of today's rule
defines "small municipal solid waste
landfill" as a landfill at which 20 tons or
less of municipal solid waste is disposed
of daily on an annual average. A landfill
that falls within this definition is eligible
for the exemption from complying with
the design criteria and ground-water
and corrective action requirements of
today's rule, if there is no evidence of
existing ground-water contamination
from the landfill and if the community it
serves is not practicably capable of
regionalizing because of one or two
specific conditiqns described below.
EPA decided to limit the exemption in
today's rule to small landfills so long as
there is no evidence of ground-water
contamination from the facility because
the Agency sees no justification for
providing relief to landfills that are
contaminating ground water. Such
contamination may be indicated by
contamination of neighboring drinking
water wells or other means. In the
Agency's view, owners and operators of
these landfills should be responsible for
taking appropriate corrective action if
contamination is present. Therefore, the
exemption for small landfills in today's
rule is not available to existing landfills
for which there is evidence of existing
ground-water contamination.
Furthermore, today's rule requires that if
contamination is discovered at some
future date, the owner or operator must
notify the State Director and, thereafter,,
comply with the design, ground-water
monitoring, and corrective action
provisions in today's rule. ,
As previously mentioned, today's rule
sets forth two situations in which a
small MSWLF may qualify for an
exemption. The first situation is one in
which the MSWLF serves a community
that experiences an annual interruption
of three consecutive months .pf surface
transportation that prevents access to a
regional facility. This provision was
developed based on data submitted by
commenters from Alaska, where access
to some rural villages is restricted by
extreme winter climatic conditions.
Typically, surface transportation to and
from these villages is impossible three
months out of the year due to snow and
ice accumulation. Consequently, solid
waste may only be transported short
distances, for all practical purposes
prohibiting the use of regional facilities.
The second situation includes
MSWLFs that serve communities for
which there are no practicable waste
management alternatives and are
located in area? that annually receive 25
inches or less of precipitation. Long
distances between communities are
particularly common in the West and
often put the regionalization of waste
management beyond the practicable
capability of small communities, while
arid conditions reduce the likelihood of
ground-water contamination.
As used in this second situation, EPA
considers the term "practicable waste
management alternative" to mean
another landfill, transfer station,
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50992 Federal Register / Vol. S6, No. 196 / Wednesday, October 9, 1991 / : Rqles and Regulations
restrictions, the disease vector and - - .
explosive gas controls, recordkeeping,
and closure arid post-closure planning
requirements." (53 FR 33382.);
In response to the. two-stage effective
date proposal, the Agency received :
. many comments on.the implemeniation
of the regulations, especially, -
commenters' views of the capabilities of
State authorities to undertake the
responsibilities required by EPA's
proposed implementation approach,
EPA received numerous comments from
States as well as owners anlr operators
of MSWLFs stating that 18 months was .
not a sufficient period of time for States .
to obtain the necessary statutory and
regulatory authorities necessary to
implement the rule as proposed.
According to these commenters, i&e
consequence of the 18-month .effective
date would be widespread
noncompliance with the revised Criteria
and a backlog of permits and closure
and corrective action plans awaiting --'
State approval.
For instance, citing the insufficiency
of the 18-month time period, one
industry commenter stated that: "once
the effective date 'kicks in', States will
be confronted with not only issuing new
permits for new facilities but also
revisiting permits for facilities that will
continue to operate," and added,
"obviously, States will not be able to
issue new or revised permits.all at once
and will have to set priorities/' To
address this problem, this commenter
suggested a way in which to increase
the self-implementing nature of the rule,
the approach used by the Agency in
many of the proposed criteria, through
development of largely self-implemented
class/permits. •"
Several State agency commenters
echoed this concern with the burden
placed upon State agencies under the
revised Criteria's proposed
implementation approach. One State
agency commented: "It is unreasonable
to expect the States to have the
framework in place to approve the gas
detection system design and monitoring •
plans, evaluate and approve the closure
plans, and approve the mechanisms
chosen for financial assurance within
eighteen months of the final rule." Other
States commented that the resources
and expertise necessary to implement
the revised criteria far exceeded those
presently available to the State agencies
that would-be responsible for .
implementing the revised criteria under
the proposed rule. ' : .
EPA had proposed a uniform' effective
date (except for ground water ..-"-.''
monitoring) of 18 months. The Agency
, received numerous comments from the-
public which argued that this 18 month
effective date did not provide sufficient
time for either owners broperatofs of ~
MSWLFs to comply with the rule or for
states to: adopt and implement permit
programs to ensure that Owners or'-'•'•
operators do comply with the rule .--:..- .
provisions. EPA still believes that a
uniform effective date, except for
ground-water monitoring and! financial
responsibility requirements, is an
important aspect of the rule's '_ "
implementation. However, after closely
evaluating the comments received which
questioned the wisdom of imposing an
18 month effective date for most
provisions of the rule, EPA has decided
to extend the effective date by six
additional months. As a result, other
than for ground-water monitoring and
financial assurance requirements, all
provisions of the rule will become
effective 24 months after the rule is
published in the Federal Register.
The Agency is adopting a 24 months
effective date instead of the 18 month
period contained in the proposed rule
for two reasons. First* owners and
operators and other commenters stated
that the 18 month period did not provide
sufficient time for facilities to have
sufficient capital and resources to
comply with the rule requirements. To
deal with these concerns, commenters
suggested that the rule become effective -
in anywhere from 24 to 48 months from
the date of publication. EPA has decided
to provide an additional six months
before the rule becomes effective to
assure that owners and operators have
sufficient tune to comply with the
extensive requirements contained hi the
final rule. As explained elsewhere, EPA
has also decided that the ground-water
monitoring requirements will be phased
in over a five year period and that the
financial responsibility requirements
will become effective in 30 months.
Secondly, while RCRA section 4005(c)
requires states to adopt and implement
a permit program or other system of
prior approval within 18 months after
the revised landfill criteria are
promulgated, EPA recognizes that even
if states are able to meet that statutory
deadline the Agency will still need time
to evaluate and make a determination
as to the adequacy of the state permit
program in accordance with RCRA
section 4005(c)(l)(C). Obtaining EPA's
approval of a state permit program is an
important element in the implementation
of the revised Criteria because many of
the rule's provisions are tied to whether
a state has a permit program which has
been approved by the Agency. Six
additional months will provide EPA
with time that may be necessary to
review the adequacy of state permit
programs." •"• -••-'-.•-,'' ;
EPA also, believes that it would be
unreasonable *t6 require'owners arid-
operators Of MSWLFs to comply With
newly revised State programs by the '
same date that the States must have ',
adopted arid implemented such . -; '
programs (i.e., 18 months). By;ex.tending
the'effective date of the revised Criteria
by ah .additional six months, EPA ; . •
believes that owners and operators will :
have adequate time to comply With
these new State programs. . '*
At the same time, however, the ; '
Agency believes it necessary.'based
upon the significant comments ,
addressing the issue, to provide for a
means by which implementation of
revised, more protective Criteria can
occur within 24 months of today's date..
As a result of the numerous comments
from both States and owners and
operators detailing the lack of State
resources for solid waste management
programs and the need for more time to •=
implement or revise State permitting ;-.•
programs, the Agency determined that a
plan that relied solely on State oversight
or interaction with the State could not
assure the implementation of the revised
Criteria by the rule's effective date. The
Agency also realized that without State
oversight, the regulations as proposed ;
could not be effectively implemented,
because they relied upon a standard
that must be developed by the State
(e.g., the design standard). In summary,
were the revised Criteria promulgated
as proposed, F4PA determined that the
public would not be adequately assured
of the implementation of the revised
Criteria and the concomitant increases
in health and environmental protection
in States without approved programs.
In response to the above concerns, the
Agency has developed a final rule that
provides for effective implementation
not only in approved States, where State
oversight will be present, but also in
States without approved programs. For .
approved States, today's rule is based
on performance standards that allow
States to consider local conditions in
setting appropriate controls for '
-municipal landfills. This performance
standard approach preserves the
traditional State role in defining
appropriate standards to the greatest
extent possible, while having a
protective national standard.
Performance standards have been
incorporated throughout today's rule.
For example, the design criteria in • •
Section 258.40 provides that approved
States may approve-landfill, designs that
will ensure that the maximum : '
contaminant levels' will be met 'at the : •
relevant point of compliance in ground
water. Under this approach, approved
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Federal Register / VoL 56, No. 196 /- Wednesday, October 9. 1991 / Rules and Regulations 50991
materials or resource recovery facility
that may serve as a reasonable
substitute for the MSWLF currently
employed for disposal. EPA encourages
owners/operators to employ their
knowledge of the universe of solid
waste management options currently
and potentially available when
evaluating the merits of available '
practicable alternatives. Owners/
operators may also want to consider the
economic implications of long haul
distances. As an example, owners/
operators might want to consider how
much a community must increase its
percentage of total budget spent on solid
waste disposal to cover costs for waste
hauling to a regional facility. The
Agency believes that the determination
of whatliaul distances would be
considered unreasonable for a
community must be made considering
local or regional geographical and
climatic constraints.
For this second situation, EPA set the
25-inch cap on annual precipitation to
ensure that the exemption would be
available only to small MSWLFs where
the risk of ground-water contamination
is reduced because of lessened leachate
generation and slower contaminant
migration. In selecting a precipitation
cut-off, EPA considered comments on
the proposal, which used 40 inches of
precipitation as .the cut-off for the
categorical approach to the design
criteria. All commenters suggested that
the Agency use a precipitation cut-off
less than 40 inches of rainfall per year.
EPA considered precipitation cut-off
values greater than 25 inches per year,
but rejected them because EPA believes
that the risk of ground-water
contamination is too great in these ,
areas. The Agency decided on 25 inches,
which represents the lower range of
commenters' suggestions and offers a
conservative number for determining the
availability of the exemption. In
addition, this number is generally
supported by landfill case studies
derived from State data. These data
indicate that little leachate is .generated
in areas where the precipitation does
not exceed 25 inches annually, which
suggests that precipitation is an
indicator of the potential of a landfill to
contaminate ground water.
Today's small MSWLF exemption
applies to new as well as existing small
MSWLFs. Because logistical barriers to
regionalization will not likely change
over time for many communities, EPA
believes that small communities will
have as much difficulty meeting the
compliance costs for their new MSWLFs
as for their existing facilities. However,
the Agenpy considered allowing waivers
for new MSWLFs for only a limited
period of time {e.g., five years], but
rejected, this option for two reasons.
First, Alaskan villages likely will always
have seasonal interruptions of surface
transportation. Second, many western
communities and Indian Tribes will
continue to be geographically isolated
and continue to face long haul distances
to regional facilities. The Agency does
recognize that in some instances .the
practicability of regionalization will
change over time, improving as rural
areas develop and gain financial
resources.
The small community exemption in
today's rule exempts qualifying small
MSWLFs from the design, ground-water
monitoring, and corrective action
requirements of today's rule. The RIA
for this rule identified these
requirements as the biggest cost items of
the final rule for small MSWLFs. Small
MSWLFs will still have to comply with
the location standards, the operating
criteria, closure and post-closure care
requirements (excluding ground-water
monitoring), and the financial assurance
requirements appropriate to these
activities. The Agency believes that
even small MSWLFs should be subject
to these criteria because they are less
expensive [relative to other
requirements in today's rule] procedures
that protect human health and Ihe
environment.
EPA believes that exempting small
landfills from the ground-water
monitoring and-corrective action
requirements of today's rule comports
with the statute (i.e., section 4010 {c])
and the Congressional intent for a
number of reasons. First, to address
Congressional concern for ground-water
contamination, EPA has narrowly
drawn the exemption such that only
those small MSWLFs for which there is
no evidence of ground-water
contamination are eligible for the
exemption (in addition to one of the
other two criteriaJ.'Second, as stated
above, the exemption is a conditional
one such that the owner/operator is no
longer eligible for the exemption when
there is evidence of ground-water
contamination associated with the
facility. As such, the facility cannot
escape corrective action for known
releases. Third, the 25-inch cap on
annual precipitation contained in the
second criterion ensures that this
exemption will be limited to those small
MSWLFs where the risk of ground-water
contamination is considerably reduced.
Finally, both the surface transportation
difficulties and the "no practicable
waste management alternatives" criteria
for obtaining an exemption reflect the
. "practicable capabilities" evaluation
that the statutory language of section
4010[c] and the legislative history
indicate Congress intended EPA to
conduct when revising the criteria under
section 4004(a).
Small communities, including Indian
Tribes, whose small landfills do not
qualify fora waiver under today's rule
should consider regionalization to
mitigate costs. Due to economies of
scale, small landfills operate at higher
cost per ton than larger, regional
facilities.
B. Regulatory Structure
Under the regulatory structure of the
proposed rule, approval by or
interaction with the State regulatory
agency by the owner or operator was
necessary for implementation of many
requirements of the revised Criteria. For
example, the proposed design criteria
required the owner or operator to design
the\MSWLF to meet a design goal
established by the State. Also, the
closure criteria required the owner or
operator to close the MSWLF in
accordance with a closure plan
approved by the State. Although these
provisions did not propose an
alternative implementation scheme
where a State was unable or unwilling
to perform the necessary approvals or
establish particular standards such as
the design goal, the Agency anticipated
the limitations of an implementation
approach significantly reliant upon State
implementation. Under section X.D.I, of
the proposed rule preamble, the Agency
specifically requested comments on
"What is an appropriate and practical
EPA role if the States do not adopt and
implement the revised Criteria?" (S3 FR
33383.)
The proposed rule did suggest an
alternative implementation scheme for
certain of the revised criteria. Many of
the proposed standards were "self-
implementing," in that they could be
implemented directly by an owner or
operator without the supervision or
intervention of a State regulatory
authority. The self-implementing
provisions of the proposed rule were
discussed in section X.A.2, of the
proposal preamble in the context of a
discussion of a suggested two-stage
approach to effective dates whereby
"self-implementing" aspects of the
regulations would become effective in 8
to 12 months and those regulations
requiring the participation of a State
authority woiild become effective in 18
months. There the Agency listed the
self-implementing provisions of the rule
to include the "general operating criteria
such as the liquids management
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509941 FederalORegister''.'/ Vol. 56, No. 196 / Wednesday. October 9, 1991 / Rules and Regulations
.*.,•",' • .,,„.-,••,•- ~t • - . - ' =- i - - • ' t* '
to disapprove the petition because
insufficient informstion'was pfovidedV
Thus, as promulgated, every standard
in today's rule may be implemented by
the owner of operator without State
oversight or participation where a State
program has not been developed. A self-
implementing approach has also been
incorporated:into the revised Criteria for
the wetlands and unstable area location
restrictions, the daily cover '
requirements, explosive gas control
requirements, the groundwater
monitoring and corrective action
provisions, the closure and post closure
. care requirements, and theiinancial
assurance provisions.
EPA is promulgating self-
implementing standards because there
may be States which do not act to adopt
and implement an adequate program
within 24 months. Inmost States, EPA
does not expect this will be a problem.
Moreover, to facilitate the expeditious
preparation and approval of State
programs, the Agency as noted above,
will shortly propose a regulation
detailing the required elements of an
approvable State program. The next
section of today's preamble describes
the effort.
Despite the promulgation of self-
implementing standards in today's '
rulemaking, EPA continues to believe
that requirements .such as those
pertaining to landfill design, ground-
Water monitoring, corrective action, and
closure should optimally be
implemented under the oversight of a
State implementing agency. Today's rule
does not represent a shift away from the
longstanding Agency policy of requiring
regulatory oversight of such important
procedures. Rather, the inclusion of self-
implementing standards in today's rule
is a recognition-that, due to resource
limitations, States may not have
adequate programs in place by the
effective date of the revised Criteria.
This scheme will insure that in States ,
that do not act to establish adequate
programs, human health and the
environment will be protected and the
Federal requirements will be
enforceable. , ., .--""•.
EPA recognizes that self-implemented
standards possess certain drawbacks.
First, self-implemented standards, such
as corrective action plans, may be
lacking in certain detail because they
lack the input of a qualified and trained
State regulatory official. Second,
without qualified. State oversight,
owners and operators intent upon : .
circumventing the regulations may find
it easier to do so.
EPA has attempted to mitigate these
drawbacks as much.as possible in
today's self-implementing standards.
The final rule establishes, where
possible, specific self-implementing
requirements that are easy for the owner
and operator to interpret and citizeiis to
enforce through citizen suits. [For
example, the cover material
requirements of § 258.21 specify that
landfills must be covered with at least
six inches of earthen materials at the
end of each operating day, or more
frequent intervals if necessary to control
disease vectors, fires, odorsj blowing
lifter, arid scavenging]. This approach,
however, was not possible for certain
provisions, such as the number, spacing,
and location of ground-water wells,
where it was impossible for the Agency
to set uniform standards because the
appropriate approval was highly
dependent on site-specific conditions. In
these instances, the Agency has
established performance criteria that the
owner or operator must meet and, in
many cases, requires that the owner or
operator obtain third party certifications
that document the decisions made or
action taken to comply with the
performance criteria. This certification
must be placed in the operating record
and made available to the State upon
request. The Agency believes that to the
extent many of the functions performed
by the State under the proposed rule
were essentially technical in nature,
they may be performed by a third party
who is not necessarily employed by or
an agent of the State agency. EPA
believes that such third-party oversight
mitigates the danger of owners or
operators abusing the self-implementing
system. Finally, today's final rule
requires the owner or operator to
provide an opportunity for public review
of potential corrective action remedies
and to notify the State of the selected
remedy.
C, Implementation and Enforcement
Another major issue EPA considered
in today's rulemaking was the actual
implementation and enforcement of the
revised Criteria. This involves the •
procedures by which EPA will
determine the adequacy of State
programs for implementation of the
Criteria, public participation in these
programs, and enforcement
considerations. .
1. Procedures for State Program
Approval
As noted above, section 4005(c) of
RCRA requires that each State adopt
arid iinplement, not later than 18 months
after promulgation of the revised
Criteria, "a permit program or other
system of prior approval and :.-.
conditions" (State permit program)
adequate to assure that each facility "
that may receive HHW or SQG waste
will comply with the revised Criteria.
Under section 4005(c) the primary
responsibility for implementing and
enforcing the revised Criteria rests with
the States. EPA is required to
"determine whether each State has
developed an adequate program"
pursuant to section 4005(c).
EPA's approach to State program
approval recognizes the traditional State
role in implementing landfill standards
and protecting groundwater. EPA fully
intends that States will maintain the,
lead role in implementing this program.
EPA's goal is for all States to apply for
and receive approval of their programs.
Under this rule States will have the
flexibility to tailor standards to meet
their state-specific conditions. The rule's
standard requires that an approved
State's design be capable of protecting
ground water at the specified point of
compliance, In selecting a design to
meet this performance standard; an
approved State may adopt its own
performance standard, it may use the
rule's specific liner design, or it may use
any design it determines would be
capable of preventing contamination of,
ground water beyond the drinking water
standards. In short, whenever a State
develops a program to deal with local
conditions, the Federal liner design
alternative would have only the legal
status of "guidance" and would not be
mandatory. EPA will not require states
to obtain a "waiver" of the liner ,
requirement to obtain program approval.
EPA's State program approval rule
will also set forth the Agency's proposed
approach for implementing the revised
Criteria on Indian lands. EPA plans to
propose that Indian Tribes be eligible
for permit program approval. The full
discussion of this issue and rationale for
EPA's proposed approach will be
included hi EPA's proposed State
program approval rule. •'..
Z. Public Participation <
The proposal did not specifically
require States to afford interested
citizens the opportunity for a public
hearing with respect to most of the
elements of today's rule. (Consideration
of public concerns was proposed and
retained in today's final rule, however,
in the context of corrective action :
remedy selection.) Several commenters
criticized the proposal because it lacked .
public participation requirements for
MSWJLF permitting and closure plan
approval; they suggested that the
Agency require States to provide for
public participation in the '
. implementation of today's rule. The
Agency believes that public
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Federal Register / Vol.: 56, No.' 196 / Wednesday. October 9, 1991 / Rules and Regulations 50993
States may consider a wide range of
site-specific factors in determining the
appropriate design that meets the
performance standard. At sites where
ground water is vulnerable due to the- •
hydrogeologic conditions present, a
State may require a composite liner
system, similar to that required in
today's rule for, landfills located in
States without approved programs. On
the other hand, in areas where the
ground water is less vulnerable (e.g., in
arid areas), the State will likely
determine that a less comprehensive
design is fully protective of ground
water. In fact, under certain climatic and
hydrogeologic conditions, liner systems
may not be needed because the
hydrogeology at the site may provide ,
adequate protection of ground water..
The rule's standard requires that an
approved State's program be capable of
protecting ground water that is currently
used or reasonably expected to, be used
for drinking water at the relevant point
of compliance. In determining the
appropriate mix of prevention and
remediation strategies to incorporate
into their programs, States are expected
to consider the use, value, and
vulnerability of potentially affected
ground-water resources, as well as the
social and economic values of these
resources, ensuring that the
environmental and public health
benefits of each dollar spent are
• maximized. For landfills located where
ground water is currently used or
reasonably expected to, be used for
drinking water, the performance
standard requires States to prevent
contamination from exceeding drinking
water standards. In selecting a program
to meet this rule's performance
standard, an approved State may use
the rule's specific comprehensive design;
or it may use any program it determines
would be capable of meeting the
performance standard. In short,
whenever a State develops a program to
deal with local conditions, the Federal
comprehensive design alternative would
have only the legal status of "guidance"
and would not be mandatory. EPA will
" not require States to obtain a "waiver"
of the comprehensive design ' >
requirement to obtain program approval.
States are provided substantial ' ;
flexibility to consider local site-specific
conditions in determining how to
. address variable ground-water quality
or location. For example, if ground
; water is located several hundred feet
below a landfill, or the aquifer is
separated from the landfill by a .- ,,
substantial impermeable layer, the. State
may determine that the comprehensive
liner design is not necessary to meet the •
performance standard. The specific
criteria by which State programs will be
approved will be published in a separate
rule {the "State Implementation Rule").
That rule will set forth specific •
conditions where State flexibility is ;
appropriate.
As provided in section 4005(c)(l)(B), .
Within 18 months of the promulgation of
this rule, States must adopt and
implement a permit program or other
system of prior approval and conditions
that complies with the performance
standard announced today. As
discussed above, states need not adopt
the EPA comprehensive design
alternative, but may choose any design
or mix of designs that will secure
compliance with the rule's performance
standard.
In addition, under section
4005(c)(l)(C), EPA must determine
whether each State has developed an
adequate program to meet the
performance standard. As noted above,
in making this determination, EPA will
rely upon the specific criteria to be
published in the State Implementation
Rule. In order to ensure that States have
the necessary guidance to prepare their
submissions for EPA review, the Agency
will not require these submissions until
12 months following the promulgation of
the State Implementation Rule. Any
' State submission received before the
expiration of this 127inonth period will
be reviewed pursuant to EPA's authority
under section 4005(c)(l)(C), but will not
. be subject to section 4007(a). This 12-
month provision will be included in
EPA's proposed State Implementation
Rule.
The Agency believes that some States
may want to seek early EPA
determination that their State programs
comply with the performance standard
announced today. For example, some
States have chosen to adopt strict
design standards similar to EPA's •
comprehensive design. EPA fully
expects that these State programs will
comply with today's performance
standard irrespective of the specific
criteria to be developed in the State
Implementation Rule. Under these
circumstances, EPA expects to make
early determinations of State
compliance in order to expedite State
programs for which favorable EPA
determinations appear to be a mere
formality.
These early determinations, however,
should not be interpreted as implicit
guidelines, presumptions, or any other"
indication of the specific criteria that
EPA will use to evaluate State programs.
, Nor will EPA, in developing the State
Implementation Rule, rely upon the
standards of the State programs
represented in these early
determinations. States that have chosen
to adopt and implement programs that
go beyond the requirements of section
4005(c)(l)(B) are likely to be candidates
for early determinations, and do not
necessarily provide an appropriate
guide to the process that EPA will
ultimately use for making compliance
determinations under section
4005(c}(l)(C).
Unless and until EPA determines that
a State program is not adequate to
secure compliance with the performance
standard announced today, the State
will retain responsibility for
administering this Subtitle of the Act,
Today's rule also establishes
provisions that ensure effective and
protective implementation of this rule in
States without approved programs
where State oversight will not be
present. To address these situations, the
Agency has amended each standard
under the revised Criteria that required
State interaction under the proposed
rule to make that standard self-
implementing. For example, the design
standard (§ 258.40) contains in addition *
to the performance standard described
above for approved States, a self-
implementing requirement for landfill
design in States without approved
programs. This requirement specifics in
these cases landfills must be designed
with a composite liner meeting certain
minimum specifications.
However, § 258.40{e) provides a
backstop mechanism which will enable,
under certain conditions, owners or
operators to employ designs less
stringent than EPA's comprehensive
design in the unlikely event that the
upcoming State Implementation Rule
has not been promulgated on schedule.
First, the owner or operator of such a
facility would need to obtain
concurrence from the State that the
specific design meets the general
performance standard set forth in
§ 258.40{a)(l). The State would then
petition EPA to review its
determination. EPA has 30 days to
approve or disapprove the State's
petition. Unless EPA determined within
30 days of such a petition that the
State's determination was inadequate,
the alternative design would be deemed
to comply with the general performance
standard. States are encouraged to work
closely with the Regional Offices prior
to formal submittai of petitions. This
will allow the Agency to identify all
information needs and to work with the
State to resolve any difficult technical
issues. This will also serve to avoid
situations where the Agency would havo
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Federal Register / VoL .SeUNo. 196 /^ednesday.. QctoBer 9, 1991 / Rules and Regulations
90995
participation is an important element in
the permitting of MSWLFs because it
affords the permit writer the opportunity
to solicit and consider the views of the
public when writing permits. Therefore,
the Agency intends to propose public
participation requirements for permitting
decisions in the State program approval
rule. Public participation in the State
regulation development process is
already required by the public
participation requirements contained in
•40CFRpart256.
3. Enforcement Considerations
States that adopt programs meeting
the Federal minimum Criteria may
enforce, them hi accordance with. State
authorities. The preamble to the
proposed rule noted that EPA expected
the States to assume primary
responsibility for implementing and
enforcing the revised Criteria, consistent
with the solid waste management
, framework established by the statute in
Subtitle D. One commenter expressed
concern that by allowing States to,
enforce the revised Criteria there would
be variation in interpretation and
^enforcement of the revised Criteria from
State to State. This commenter
suggested that EPA assure uniformity in
the interpretation and enforcement of
the revised Criteria.
EPA believes that variation in the
control applied to landfills in different
States is appropriate to accdunt for site-
specific factors (e.g., hydrology,
precipitation). Therefore, today's rule
seta performance standards that allow
consideration of site-specific conditions.
EPA agrees that while the Federal
standards are flexible to allow different
site-specific controls in different States,
the Federal performance standards
should be consistently interpreted from
State to'State. To ensure that these
provisions are consistently interpreted,
EPA plans to develop technical guidance
for MSWLF owners and operators and
State regulatory officials to enhance
uniformity in interpretation of the
revised Criteria. ":
Citizens may seek enforcement of the
revised Criteria, independent of any
State enforcement program, by means of
citizen suits under section 7002 of '
RCRA. Section 7002 provides that any
person,may commence a civil action on
his own behalf against any person who
is alleged to be in violation of any ;
permit, standard, regulation, condition,
requirement, prohibition, or order that
hab become effective pursuant to RCRA.
Once the self-implementing criteria in
today's rule become effective, they
constitute the basis for citizen
enforcement actions brought in Federal
court against facilities that fail to *
comply. It is important to note, however,
that today's MSWLF Criteria offer
alternative regulatory approaches in..,,
States with approved programs. For
example, an approved State may use a :
performance standard in approving the
design of a landfill rather than rely on
the uniform liner standard in
§ 258.40(a)(2) of this rule. In approving
State programs, EPA will review and
explicitly approve the State's design or
performance standard approach. In view
of this approval, EPA expects that
owners or operators in approved States
. who use the State's standard will be
found by federal courts to have
complied with the design requirements
in part 258.
Under section 505 of the,CWA, any
person may commence a civil action
against any person alleged to be in
.violation of an effluent standard or
limitation under the CWA. "Effluent
standard or limitation" is defined to
include a regulation under section 405(d)
of the CWA. (Section 505(f), 33 U.S.C.
1365(f).) Because the part 258 Criteria
are also standards for sewage sludge
use and disposal promulgated under
section 405(d) of the CWA, citizen
enforcement action in Federal court is
authorized agains't non-complying
facilities accepting sewage sludge.
EPA invited public comment on the
overall role of EPA enforcement under
subtitle D, the proper elements of an
enforcement policy foe ensuring
compliance with the revised Criteria,
and strategies for targeting MSWLFs
that pose the greatest threat to human
.health and the environment. The Agency
received one comment on the issue of
Federal enforcement of the revised
Criteria. This commenter noted that the
legislative history of section 4005(cJ, the
section authorizing EPA to enforce
compliance with the revised Criteria,
reflected Congressional concern with
the poor record of State implementation
of the original provisions of subtitle D.
This commenter suggested that the
continuing inadequacy of State solid
waste program implementation and
enforcement, as noted in EPA's own
1988 Report to Congress, argues for a
vigorous Federal enforcement role. EPA
agrees with the commenter that
Congress intended EPA to enforce the
revised Criteria in States that have an
inadequate permit program. However,
the statute is clear that EPA has no
enforcement authority under section
4005 in approved States. EPA does,
however, retain authority under section
7003 for imminent hazards.
Commenters also questioned whether
EPA has authority to enforce the revised
Criteria on Indian lands within a State
without an approved permit program. ,
This issue will be addressed in the State
program approval rulemaking discussed
earlier in this preamble.
D. Ground-Water Policy
Another issue EPA had to address in
developing today's rule was its ground-
water protection policy. This involves
the role of ground-wafer resource
evaluation in implementing the revised
Criteria as well as additional controls
imposed by State wellhead protection
programs developed pursuant to the
Safe Drinking Water Act.
1. Differential Protection of Ground-
Water •''-.. '
Resource value refers to the current
and future; importance of ground water
as a water supply and as an ecological
resource. Highly saline ground water or
ground water with very low yield may
...have a low resource value. Pristine
ground water or ground water in high
demand that cannot easily be replaced
or restored similarly may have a high
resource value. As EPA was developing
the framework for the revised Criteria,
the Agency considered at length the
subject of differential protection of
ground water based on its resource
value. Specifically, EPA considered
applying different federal engineering
controls, monitoring, and corrective •
action requirements according to the
resource value of the ground water.
In 1984 EPA issued the Ground-Water
Protection Strategy, which established
the concept of differential protection of
ground water depending on its resource
value. Accordingly, three classes of
ground water were identified. Class I
ground waters are defined as special
ground waters that are highly vulnerable
,td contamination and that are either
irreplaceable sources of drinking water
or are ecologically vital. Class II ground
waters are defined as current and
potential sources of drinking water and
those having other beneficial uses. Class
III ground waters are defined as heavily
saline ground water or ground water
otherwise contaminated beyond the
level allowing cleanup through methods
commonly used by public water supply
treatments. In 1991, EPA issued its
Ground Water Task Force Report whicn
confirms the role of States in devising
ground-water protection strategies to
,meet State-specific needs. In devising
their solid waste programs, States are
expected to use ground-water
classification and resource evaluations
in making their State decisions.
The Agency's Ground-Water
Protection Strategy and the concept of
differential protection of ground water is
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50996 Federal Register /Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
incorporated throughout today's rule.
After the effective date and prior to
State program approval, this rule
requires the use of a specific design in
all environmental settings. Following
State approval, the rule provides States
the flexibility to consider the resource
value of ground water in determining
appropriate landfill design, ground-
water monitoring, and corrective action
requirements. For example, today's rule
allows States to approve less stringent
landfill designs based on the quality of
ground water, in addition to other
factors. The performance standard for
landfill design requires that landfills be
designed to meet drinking water
standards at a relevant point of
compliance hi ground water. Approved
States may consider the quality of
ground %vater, including whether the
ground water is currency used or
reasonably expected to be used as
drinking water, in setting a relevant
point of compliance. By establishing the
relevent point of compliance further
from the landfill in cases where the
ground water is not reasonably
expected to be used for drinking water,
an approved State may allow less
stringent landfill designs.
Subpart D of today's rule specifies
that the relevant point of compliance
may be up to 150 meters from the
boundary of the landfill and must be on
land owned by the owner of the landfill.
However, the Agency is currently
examining this issue as part of the
Agency's subtitle C corrective action
rule and if changes are made, they will
be incorporated into this rule.
Differential protection also is built
into today's corrective action
requirements. Today's rule allows an
approved State to determine that
remediation of a release of an appendix
II constituent is not necessary in
situations where the MSWLF is located
over an aquifer that is not currently or
reasonably expected to be a source of
drinking water, and that is not
interconnected with waters to which the.
hazardous constituents are migrating or
are likely to migrate in a
conccntration(s) that would exceed the
ground-water protection standards
established under § 258.55(h).
Furthermore, today's rule allows the
owner or operator to consider the value
of ground-water in setting the schedule
for initiating and completing corrective
action. For example, a tighter schedule
may be set for initiating and completing
remedial activities for ground water of
higher resource value than for ground
water of lower resource value.
Today's rule also incorporates ground-
water quality as a factor to be used by
approved States in setting the phase-in
schedule for ground-water monitoring.
EPA also is requiring that the frequency
of ground-water monitoring be specified
by an approved State based on site-
specific factors, including the resource
value of the ground water. This
approach, however, would not allow
complete exemptions from ground-water
monitoring for facilities located over low
value ground water. Even though today's
rule allows an approved State to waive
the cleanup of a particular appendix II
constituent in certain low value ground
waters, the Agency believes that at least
minimal ground-water monitoring is
necessary at all MSWLFs [with the
narrowly defined exception of small
landfills discussed above] to evaluate
the performance of facility design and
operation and to identify potential
threats to human health and the
environment. Furthermore, HSWA
specifically provides that the revised
Criteria should require ground-water
monitoring as necessary to detect
contamination at facilities that may
receive HHW or SQG waste.
Finally, EPA believes ground-water
resource value already plays an
important role in local and State
decisions regarding the siting of
MSWLFs. In this rule EPA has not
established Federal siting Criteria
specifically based on resource value
because EPA believes that, due to the
number and nature of MSWLFs
regulated under Subtitle D of RCRA,
resource value considerations in
MSWLF siting are more appropriately
made at the State and local levels.
2. Well Head Protection Programs
Section 1428 of the Safe Drinking
Water Act (SDWA) contains
requirements for the development and
implementation of State wellhead
protection (WHP) programs to protect
wells and wellfields that are used, or
may be used, to provide drinking water
to public water systems. Under section
1428, each State is to adopt and submit
to EPA for approval a WHP program
that, at a minimum:
(1) Specifies the duties of State
agencies, local governments, and public
water systems in the development and
implementation of the WHP program;
(2) For each wellhead, determines the
wellhead protection area (WHPA), as
defined in section 1428(e) of SDWA,
based on all reasonably available
hydrogeologic information on ground-
water flow, recharge, and discharge and
other information the State deems
necessary to adequately determine the
WHPA;
(3) Identifies within each WHPA all
potential human sources of
contaminants that may have any
adverse health effects;
(4) Describes provisions for technical
assistance, financial assistance,
implementation of control measures,
and education, training, and
demonstration projects to protect the
water supply within WHPAs from such
contaminants;
(5) Includes contingency plans for the
location and provision of alternate
drinking water supplies for each public
water system in the event of well or
wellfield contamination by such
contaminants;
(6) Requires that consideration be
given to all potential sources of human
contamination within the expected
wellhead area of a new water well that
serves a public water system; and
(7) Requires public participation in
developing the WHP program.
EPA believes that today's rule
complements the resource protection
goals of State wellhead protection
programs. The specific criteria for the
location and monitoring of MSWLFs in
this rule will help protect ground waters
used by public water systems. Under an
EPA-approved State WHP program, the
State may impose more stringent or
additional controls and requirements for
MSWLFs than are included in today's
rule. Any owner or operator of a
MSWLF, in addition to meeting the
requirements under today's rule, must
also be in compliance with the State's
WHP program. Therefore, meeting the
requirements of this rule alone will not
ensure that an owner or operator of an
MSWLF is in compliance with a State's
WHP program.
E. Issues Pertaining to Sewage Sludge
As noted above, today's rulemaking
fulfills a portion of the CWA section
405(d) mandate that EPA promulgate
regulations governing the use and
disposal of sewage sludge. For this
reason, the part 258 Criteria for
MSWLFs are jointly promulgated under
CWA and RCRA authorities and apply
to all MSWLFs in which sewage sludge
is co-disposed with household wastes.
EPA believes today's rulemaking fully
" addresses this widely-used sewage
sludge disposal practice.
The Agency received comments on
two general issues pertaining to sewage
sludge—pollutant limits for sewage
sludge and removal credits. The
• preamble discussion below addresses
these issues and presents the Agency's
general rationale for using Part 258 to
regulate sewage sludge disposal in
MSWLFs.
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Federal Register / Vol. 56,
. 1. Pollutant Limits for Sewage Sludge
In choosing to regulate sewage sludge
disposal in MSWLFs by the part 258
Criteria, EPA decided not to establish
pollutantspecific, numerical criteria for
each toxic pollutant of concern in the
sewage sludge for this sludge disposal
practice. This decision is consistent with
CWA section 405(d)(3), which permits
EPA to promulgate alternative standards
for protection of public health arid the
environment where EPA determines it is
not feasible to prescribe numerical
limits for pollutants of concern.
• Congress clearly recognized that
circumstances would arise where it
would not be technically feasible or
scientifically justifiable for EPA to
prescribe numerical limits for pollutants
in sludge for certain sludge use and
disposal practices. •
EPA concluded it was not technically
feasible to develop specific numeric
limitations for pollutants in sewage
sludge that are co-disposed with
municipal solid waste for the following
reasons. In developing numerical
limitations for specific pollutants for the
February 6,1989 sewage sludge rule,
EPA assessed risk to human health and
the environment associated with
individual pollutants when used or
disposed in five different ways
(incineration, land application,
distribution and marketing, disposal hi
surface disposal units or disposal in
sludge-only landfills). For its
assessment, EPA relied on detailed
ma thematic models to simulate the
movement of pollutants through the
environment to environmental endpoints
at potential risk from these use and
disposal methods. A full discussion of .
this process is found in the proposal at
54 FR 5764-78. However, EPA cannot
use its current models to describe the
movement of sewage sludge pollutants
from a co-disposal facility because of
significant scientific uncertainties that
confound any modelling effort.
The same mathematical processes
used to model pollutant movement from
a sludge-only facility cannot be used to
establish numerical limitations for the
pollutants in sewage sludge that is
disposed of with municipal solid waste.
The primary reason for this is chemical
interaction between the pollutants in
sewage sludge and those in municipal
solid waste when disposed together in a
landfill. The decomposition of garbage
in the landfill results in the production
of water-soluble, organic fatty acids „ •
(acetic, propionic and butyric) that
promote the leaching of metals and
other substances from the garbage.
Sewage sludge; however, slows this
process down, the sludge matrix acting
October 9, 1991 / Rules and Regulations 50997
to bhid metals in insoluble form,
significantly reducing their potential for
leaching from the. landfill, .....
Understanding of this phenomenon is
still preliminary and at this juncture, the
Agency cannot measure the extent to
which sewage sludge reduces the
mobility of metals in landfills. Until it '
has some scientific basis for quantifying
this process, the -Agency cannot
calculate appropriate limitations for the
pollutants in the sludge that is disposed
of in the landfill. Compounding the
difficulty is the absence of data that
would form the basis for conclusion
about typical levels of organics and
metals in garbage in order to select
appropriate parameters for these
components of any model. Sludge
represents only about five percent of the
volume of the total mass being disposed
of hi the landfill. Without knowledge
about the character of the municipal
solid waste component to potential
leaching, it is impossible to calculate
limitations for the sludge pollutants.
Because of the interactive effect it
would not be scientifically defensible
simply to apportion some percentage of
the pollutants to the sludge contribution.
While EPA decided that numerical
limitations for co-disposed sewage
sludge were not feasible, the Agency
determined that the design standards
applicable to MSWLFs were adequate to
protect human health and the
environment. The design and
engineering standards will prevent the
migration of harmful pollutants from the
waste leachate. Further, the rule
prescribes corrective measures in the
event of migration of pollutants. In these
circumstances, EPA concluded that
these requirements met the protection
standard of section 405.
2. Removal Credits
Many industrial facilities discharge
large quantities of pollutants to POTWs,
where their wastes mix with
wastewater from other industrial
facilities, domestic wastes from private
residences and run-off from various
sources prior to treatment and discharge
by the POTW. Industrial discharges
frequently contain pollutants that are
generally not removed as effectively by
POTWs as by the industries themselves.
The introduction of pollutants to a
POTW from industrial dischargers
potentially poses several problems. The
discharges may .interfere with a POTW's
operation, resulting in inadequate
treatment of domestic wastes and
sewage. Pollutants may pass through the
POTW into navigable waters if they are
inadequately treated. Finally, even if
partially or fully treated by the POTW
and removed from the POTW
wasteatream prior to discharge, these
pollutants may settle in and
contaminate the sludges produced by a
POTW, causing a sludge disposal
problem.
In order to prevent these potential
problems, Congress has directed EPA hi
sections 307(b)-(d) of the GWA (33
U.S.C. 1317[b)-(d)) to establish
pretreatment standards to "prevent the
discharge of any pollutants through
(POTWs), which pollutant interferes
with, passes through, or otherwise is
incompatible with -such works." (33
U.S.C. 1317(bj.) Pretreatment standards
limit the amount of a pollutant that
facilities hi an industrial category may
introduce into a POTW. (Section 307[dl,
33 U.S.C. 1317(d).)
Congress recognized that in certain
situations POTWs could provide some
or all of the treatment of an industrial
user's waste stream that would be
required pursuant to the pretreatment
standards. Consequently, Congress
established a discretionary program for
POTWs to grant "removal credits" to
the indirect discharger. (33 U.S.C.'
1317(b).) The credit, in the form of a less
stringent pretreatment standard, allows
an increased amount of pollutants to
flow from the indirect discharger's plant
.to the POTW.
Section 307(b) of the CWA establishes
a three-part test for obtaining removal
credit authority. Removal credits may be
awarded only if (i) the POTW "removes
all or any part of such toxic pollutant,"
(2) the POTW's ultimate discharge
would "not violate that effluent
limitation or standard which would be.
applicable to such toxic pollutant if it
were discharged by such source other
than through a POTW, and.does not
prevent sludge use or disposal by such
(POTW) in accordance with section
(405). ; ." (Section 307(b), 33 U.S.C.
1317b.)
EPA has promulgated removal credit
regulations in 40 CFR part 403. On April
30,1986, me United States Court of
Appeals for the Third Circuit
invalidated certain portion of the then-
effective removal credit regulations.
NRDC v. EPA, 790 F.2d 289, 292 (3rd Cir.
1986), cert, denied, 107 S.Gt. 1285 (1987).
Among other determinations, the Third
Circuit held that, under section 307(b),
EPA may not authorize any POTW to
grant removal credits to any indirect
discharger vmtil EPA promulgates the
comprehensive regulations addressing
sewage sludge required by section 403 of
the CWA. NRQC v. EPA. 790 F.2d 289.
292 (3rd Cir. 1986).
Congress made this prohibition
explicit in the Water Quality Act of 1987
(WQA). While temporarily staying the
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50938 Federal Regibter / Vol. 56, No. 196 / Wednesday, October 9, 1991 /Rules and Regulations
effect of the Third Circuit's decision
until August 31,1987, section 406(e) of
the WQA provides that, after that date,
EPA shall not authorize any other
removal credits until EPA issues the
sewage sludge use and disposal
regulations required by CWA section
405fd)(2Kap).
EPA considers the part 258 regulations
promulgated today to respond
adequately to the Third Circuit's
decision and section 406{e) of the WQA
In the case of POTWs that dispose of all
their sewage sludge through co-disposal
to MSWLFs. These regulations
comprehensively regulate this sludge
disposal method. Consequently, the
POTWs that dispose of all their sludge
to co-disposal MSWLFs may apply to
EPA for removal credits authority after
the effective date of today's rule. EPA
may grant such authority to any POTW
that complies with the procedural and
substantive requirements of the removal
credits regulations.
Section 4Q3.7(a)(3) of EPA's removal
credits regulations provides that a
POTW may be authorized to grant
removal credits only if "the granting of
removal credits will not cause the
POTW to violate the local, State, and
Federal sludge requirements which
apply to the sludge management method
chosen by the POTW." "Sludge
requirements" are defined in 40 CFR
403.7(a)(l)(ii) to include regulatory
requirements under section 405 of the
CWA. In the case of sludge co-disposed
with municipal solid waste, these
requirements are spelled out in today's
rule.
As previously stated, today's rule
satisfies CWA section 405 requirements
through a combination of design and
operational criteria in association with
monitoring wells and corrective action
in the effect of failure. However, in
consideration of the practicable
capability of facilities to implement the
requirements in the rule, the part 258
rule allows MSWLFs to phase in
compliance wilh certain requirements.
Thus, while the MSWLFs must comply
with most of today's requirements
within 24 months of publication, a
MSWLF has 30 months to meet the
financial responsibility requirements
and up to five years after the publication
date of today's rule to comply with the
rule's groundwater monitoring
provisions. Consequently, it is likely that
some POTWs will, during the phase-in
period, send sewage sludge to MSWLFs
that have not yet implemented some of
the substantive requirements of the rule.
While such a phase-in is appropriate for
MSWLFs, EPA has determined that
POTWs should not be authorized to
grant removal credits until the MSWLF
to which the POTW sends its sludge is
in compliance with all the part 258
requirements.
The statutory scheme of section 307(b)
requires sludge use and disposal
standards under section 405 before EPA
may authorize removal credits. These
standards are the predicate to a
determination that an indirect discharge
to a POTW is not preventing disposal in
accordance with these standards as
required by section 307(b). But the mere
publication of standards does not entitle
a POTW to removal credit
authorization. EPA's conclusion that
today's rule protects public health and
the environment against reasonably
anticipated adverse effects—the
statutory standard of section 405 of the
CWA—is based on the assumption that
all the part 258 requirements are in
place. Consequently, removal credits are
not authorized before the statutory
protective level is implemented. As
Senator Stafford, one of the sponsors of
the Water Quality Act of 1987 has
pointed out (132 Cong. Rec. S 16427,
daily ed. Oct. 16,1986):
* * * Congress intended the existence of
sludge regulations, and compliance with
those regulations, to be a precondition to the
granting of removal credits.
Therefore, under today's rule, in order to
obtain removal credits authority, the
POTW must send its sludge to an
MSWLF that has in place all of today's
requirements.
Thus, any co-disposal POTW seeking
to obtain removal credits authority must
demonstrate that it is disposing of its
sewage sludge in an MSWLF that meets
all the substantive requirements
specified today, including all financial
responsibility, ground water monitoring,
and corrective action requirements.
During the period when an MSWLF is
phasing into compliance with the
substantive part 258 requirements, a
POTW relying on such a facility could
not obtain authorization to grant
removal credits.
It should be noted that while it is the
POTWs responsibility to demonstrate
the MSWLFs compliance with part 258,
such a demonstration may include a
statement from the State or regulatory
authority certifying that the MSWLF has
implemented all part 258 requirements,2
* On February 6,1889, EPA proposed standards
(to be codified at 40 CFR part 503) for sewage
sludge use and disposal under section 405 of the
Clean Water Act, 33 U.S.C. 1365. 54 FR 5745.
Specific standards were not proposed for sewage
sludge disposed in MSWLFs. Rather, the.proposal
explained that co-disposed sludge would be
regulated under the part 258 criteria .that would
Include requirements for the disposal of sewage
sludge in an MSWLF. In the part 503 standards, the
including remedial requirements where
the need for remediation has been
triggered. Removal credits regulations
. do not preclude an industrial user or
other interested party from assisting in
preparing and presenting the' •
information required in the POTW's
application for removal credits
authorization. (40 CFR 403.7(e)[7)). ;
V. Summary oft Amendments to Part 257
Today's final rule specifies
amendments to 40 CFR part 257 that
include conforming changes to part 257
that make it consistent with the
proposed part 258, including an update
to the maximum contaminant levels
listed in appendix I of part 257. This
section describes these amendments
and the Agency's response to major
comments received on the proposal.
A. Conforming Changes to Part 257
Today's action adds municipal solid
waste landfills to the list of exceptions
to the part 257 Criteria contained in
§ 257.1(c). Because MSWLFs will now
be covered by the part 258 Criteria, they
are no longer subject to the part 257
Criteria that are generally applicable to
solid waste disposal facilities and
practices. The part 257 Criteria are
otherwise unchanged with respect to
their applicability, and remain in effect
for all other facilities and practices.
Today's rule also amends part 257 to
include definitions of the types of solid
waste disposal facilities regulated by
the part 257 Criteria: Landfills, surface
impoundments, land application units,
and waste piles. These new .definitions
clarify that these types of solid waste ,
disposal facilities are subject to part 257.
Finally, today's action makes certain
conforming changes to § 257.3-4, .which
currently specifies that a facility or
practice shall not contaminate
underground drinking water sources
beyond the solid waste boundary. For
purposes of this requirement,
contamination is defined as
concentrations of substances exceeding
maximum contaminant levels, contained
in appendix I to part 257, developed by
EPA under section 1412 of the Safe
Drinking Water Act. Today's action
revises appendix I to incorporate
additional MCLs established by EPA.
Pursuant to the 1986 amendments to the
SDWA, EPA is in the process of
promulgating more MCLs. Part 257 will
be revised again in conjunction with
promulgation of these new MCLs. This
Agency proposed and requested comment on a
requirement that co-disposing POTWs send their '
sludge to State-permitted MSWLFs.
-------
^Federal Register / Vtil'56,'No. 196 /^Wednesday, October 9,'1-991 /llulesTaiid Regulations 50993;
' same approach will be used to update
theMGLs used^today in part'258.
:Today's rule (both part 257 and part
258} uses the current Maximum ,
Contaminant .Level for Ie6d of 50 ppb.
The Agency recognizes that today's rule
does not incorporate changes to the lead
MCL established by EPA in a recently
promulgated drinking water regulation
(56 FR 26460; June 7,1991). This
regulation rescinds the current MCL of .
50 ppb for lead as of November 9,1992,
and establishes a'technology-based
treatment standard. It does not establish
a new MCL for lead. The Agency is
.currently evaluating how to incorporate
this recent change in this and other :;
Agency rules that use the current lead:
MCL of 50 ppb. EPA will propose
necessary changes to today's rule once •
this evaluation is completed.
B, Notification and Exposure
Information Requirements . '
The proposed amendments to part 257
(53 FR 33328; August 30,1988) included a
notification and exposure information
requirement for certain solid waste
disposal facilities. Under this proposed
requirement, EPA intended to obtain
, notification and exposure information
from a set of industrial solid waste
disposal facilities that are of concern,
including: Industrial landfills, surface
impoundments, land application units,
waste piles, and construction/,
demolition waste landfills. For reasons
set forth below, EPA intends tp proceed
immediately with an alternative - , .
information gathering strategy that more
clearly defines potential problems by ~
seeking more useful information than
was proposed in the notification
requirement. The Agency is currently
developing the components of that
strategy. It may include, for example: An
industry-wide statistical survey that will
help set priorities for government action.
EPA will pursue this information
gathering strategy in lieu of the
proposed notification requirement.
These facilities are of concern to the
Agency because they represent a large
and diverse set of solid waste disposal
facilities that may receive quantities of '
small quantity generator and household '•
hazardous waste, and some may pose a
threat to human, health and the ;" , •
environment Evaluation of the potential l
, threats at these facilities is'further
compounded because of limited facility'.
design and monitoring criteria. The, ;
scope of the industrial nonhazardous
waste problem is dis<3ussed in more :
"detailinEPA's 3,988'Repprt to Congress.
on Solid Waste Disposal in'the'ynited
..States., - ,. . , ' .',•: '''/' :.%'-'\, \
...-'•; The mfprmafion.that EPA proposed to
require from these facilities in the '.,
' notification consisted; oftwo parts, *'•
including: ;.
(1} A one-time notification that ;
solicited information about facility.
owners, locations, ahipunts and types of
wastes handled, and waste disposal
practices applicable to existing
facilities, and
(•2) Exposure information indicating
the number'of households located within
one .mile of the facility and the number
or ground-water monitoring wells at the
facility.; , .•'....
, • •. The.notification requirement was to
be a preliminary step in assembling
information that would enable EPA to
identify the universe of facilities, and at •
the same time serve to remind the
owners and operators of industrial solid-
waste disposal facilities that they are
still subject to the ^existing part 257
criteria. The results of the notification
requirements would also be used to
design subsequent more specific
information collection .strategies for the
development of any future program
actions covering these facilities. .
The notification and. exposure
, infprmation_requirements were intended
to update and supplement information
that EPA had previously collected on, the
identity of facilities and their waste
management practices. For example, in
1987 EPA conducted a stratified survey
of 18,051 establishments from 17
different standard industrial categories
fSlCs), (see draft EPA report, Screening
Survey of Industrial Subtitle D
Establishments, available in the.RCRA
docket). This survey was based on
information obtained from Dun's
Marketing, Inc., -which included
establishment name, location, SIC .
codes, and other financial information.
The result of this survey provided EPA
with national and industry-specific
estimates on:
• The number of establishments that
manage industrial subtitle D waste on
site;, •
• The number of establishments that
manage subtitle D waste on site in
landfills, surface impoundments, land
application units, and waste piles;
• The number of landfills, surface
impoundments, land application units,
and waste.piles used to manage
industrial subtitle D waste; and
" • The'quantity of industrial Subtitle D
waste managed on site in: land-based
waste'management units.
EPA,estimated that 72,400 '
establishments managed about 7 billion
metric tons of industrial solid waste in
.1985, and an estimated 20 percent of
12,OpQ establishments used at least one
type of land-based waste disposal unit "
to manage waste. Further, about 99
percent of the industrial solid waste is
generated and managed on site by .,'
: facilities within the 17 SICs surveyed.
In its Report to Congress (Ref. 1), EP/
stated its belief that, based on the :
information EPA collected to date,
industrialhazardous waste facilities as
a class may pose a threat to human
health and the environment. However,
.additional information would be needed
to evaluate the nature and extent of that
threat. In the proposal, EPA proposed to
begin the process of collecting
_. additional information on these facilities
iby first establishing a baseline facility
inventory through the proposed facility
notification requirement. The -
'notification was planned as a first step
in an uifofmatidn collection process.
EPA would use information received
. from the notification requirement to
update and supplement facility
inventory data that were already
available to EPA to more accurately
define the size of the nonhazardous
. waste management facility universe.
The inventory would aid EPA in .
targeting categories of facilities for more
detailed information collection that may
be needed for the development of future
waste management or other Agency
program actions.
As a result of public comments on the
proposed notification requirement, and
additional information that has become, ;
. available since the proposed '
rulemaking, EPA has changed its
thinking on how best to collect needed
information to characterize problenls
and set priorities for addressing this '
diverse universe of waste handlers.
Some commenters argued that, because
of the diverse nature of industrial solid
waste, more detailed information about
the physical, and chemical
characteristics of the waste would be
needed to assess potential risks and
support any development of waste
management guidelines,, than was ,
present on the proposed notification
form. More detailed information might
include specific data on hazardous
constituents contained in the waste,
, disposal-facility size and location,
ground-water monitoring information,
and other detailed facility-specific
: information. The Agency agrees with the,
commenters arguments concerning the
scope of data elements necessary. " .
In addition to this information, the:
General Accounting Office (GAO)
completed a repent report 3 (Ref. 10) that
8 GAQ-examined ground-water monitoring data,
from 112 industrial soM waste disposal facilities in
California andNew.fersey. State officials reported'
that6B'(61'percentj of the 112 faciimes studied
Indicated grpundrwater contamination (i.e.,
constituents at leyels.al?o've the.'State's'standards or"
-• ' ' - '.-• '''•', " ' ' ; :' : Continued
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§1000 Federal Register / Vol. 56, No. 196 /Wednesday, October 9,^991 / Rules and Regulations
confirmed the assessment of
environmental threats made earlier by
EPA In its Report to Congress (Ref. 1).
This GAO report further emphasizes
these findings using the results of an
analysis of a study of 112 facilities in
two states.
EPA believes the public comments
received on the proposed notification,
together with EPA's earlier findings
concerning health threats and the
findings in GAO's report, provide a
compelling case to move forward more
expeditiously than was previously
proposed toward a more comprehensive
information collection strategy to better
understand the risks posed by these
facilities and to assess the need for any
future program actions by the Agency.
EPA believes that, while the
notification requirement proposed in the
1088 proposal would provide EPA with
better information than it currently has
on the baseline inventory of facilities, it
would not provide sufficient information
needed to characterize potential
problems and evaluate the need for
future Agency action. Further, the time
and resources required to complete this
notification process would delay EPA's
ability to accelerate a more detailed
information collection effort for
industrial nonhazardous waste
management facilities. EPA would have
to expand the notification requirements
significantly to gather data that are
believed to be needed.
Instead of expanding the data
requirements of the notification, the
Agency has, therefore, chosen to
eliminate the notification and exposure
information requirements in § 257.5 of
today's final rule in order to move
proscribed IteilU.) At 32 (28 percent) of the 112
facilities, lie knowrt or suspected source of ground-
wnlcr contamination was an Industrial landfill.
itirfacc Impoundment, or construction/demolition
debris landfill
forward expeditiously on a more
comprehensive information collection
effort. As mentioned in the introduction
to this section, the elements under
consideration include:
—An industry-wide statistical survey
that will help set priorities for
government action
—Facility specific case studies to better
. understand facility operations, waste
generation and waste management
practices, and
—An understanding of State program
requirements and accomplishments,
since States will undoubtedly remain
the front-line government agencies in *
day to day environmental
management.
EPA anticipates that this approach
will provide the Agency with the
flexibility and capability to better
understand the specific relative health
and environmental risks posed by the
broad range of facilities and wastes
under study.
VL Summary of Part 253
The following is a summary of each
subpart of part 258. A detailed
discussion of major comments received
on each subpart of the proposal and the
Agency's response to these comments is
contained hi Appendices B-H.
A. Subpart A-^General
Subpart A contains the purpose,
scope, applicability, and effective,date
of part 258 (§ 258.1). It provides
definitions necessary for the proper
interpretation of the rule (§ 258.2), and
indicates that there are other Federal
laws and regulations with which an
owner or operator of a MSWLF must
comply (§ 258.3).
The purpose of part 258 is to establish
minimum national criteria for municipal
solid waste landfills, including MSWLFs
used for sludge disposal and disposal of
nonhazardous municipal waste
combustion (MWC) ash (whether the
ash is co-disposed or disposed of to an
ash monofill). Part 258 sets forth
minimum national criteria for the
location, design, operation, cleanup, and
closure of MSWLF units. The rule
provides that States will have flexibility
in implementing these criteria, where
States wish to run the program. A
MSWLF unit that does not meet the part
258 Criteria will be considered to be
engaged hi the practice of "open
dumping" in violation of section 4005 of
RCRA. MSWLF units that receive
sewage sludge and fail to satisfy these ,
criteria will be deemed to be in violation
of sections 309 and 405(e) of the Clean
Water Act.
Figure 1 depicts the decisionmaking
process that owners and operators of
MSWLF units should use to determine
the applicability of part 258
, requirements to MSWLF units. As
indicated in the figure, the Criteria do
not apply to owners and operators of
MSWLFs that have stopped receiving
waste prior to October 9,1991 (see
§ 258.1(c)). Owners and operators of
MSWLFs that stop receiving waste
between October 9,1991 and Octobers,
1993 are exempt from all of the
requirements of part 258 except the final
cover requirements cited in § 258.1(d).
Finally, MSWLFs that receive waste on
or after the effective date of today's rule
October 9,1993 must comply with all
provisions of part 258 on the effective
date with two exceptions. They are (1)
the ground-water monitoring provisions
of subpart E, which are phased in over a
five-year period beginning on the date of
publication of today's Rule,, and (2) the
financial responsibility provisions of
subpart G, which are effective 30
months after the date of publication of
today's Rule.
BILLING CODE 6560-50-M
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Federal RegisteE | Voh 5&» No. 19® / Wednesday October a 1991 | Rtfes aaid^R^&tfain® 53fl8t
.;;•-•.'',-;:'.; Figure 1 •'' .- " '.'.••;:•.;
•'What requirements,app^f to my MSWLF?
Is your facility
anything other
than a MSWLF?
Part 258 does not
apply to you
Did your MSWLF
stop receiving
waste prior to
today?
Part 258 does not
apply to you
Wilf your
MSWLF stop
receiving waste
during the next
24 months?
You must comply only with the
final cover requirements of
§258.60 (a)(2)
Will your
MSWLF be
receiving waste
on or after 24
months from
today?
You must comply with all of
Part 258
OT110006L
BILLING CODE 6560-S«-«
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51002 Federal Register / Vol. 56. No. 196 /Wednesday, October 9, 1991 / Rules and Regulations
B, Subpart B—Location Restrictions
Subpart B of today's rule establishes
six location restrictions applicable to
MSWf.F units. As shown in Figure 2,
certain of these location restrictions are owner or bperator'must place' thes'e ;
applicable to existing units. All of demonstrations in the operating record
today's location restrictions require the and notify the State Director. ' '
owner or operator to demonstrate that
the meet the s .-ecific criteria. TV
BILLING CODE 6560-50-M
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Federal Register / Vol. 56. No. 196 / Wednesday, October 9,1991I Rules and Regulations 51003
Units and
Lateral Expansions
1. Airports
2. Floodplains
3. Unstable Areas
4. Wetlands
5. Seismic Impact Zones
6, Fault Areas
Which Location Restrictions Apply to my
Existing Units
1. Airports
2. Floodplains
3. Unstable Areas
BILLING CODE 6560-50-C
OTH0011L
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S1QQ4 Federal Register / Vol. 56, No. 196 / Wednesday, October 9. 1991 / Rules and Regulations
1. Section 258.10 Airport Safety
Under today's rule, owners or
operators of new MSWLF units, existing'
MSWLF units, and lateral expansions
located within 10,000 feet (3,048 meters)
of any airport runway end used by
turbojet aircraft or within 5,000 feet
(1,524 meters) of any airport runway end
used only by piston-type aircraftmust
demonstrate that the unit does not pose
a bird hazard to aircraft. The owner or
operator must notify the State Director
(as with all of today's demonstrations)
that the demonstration has been placed
in the operating record.
In addition, today's rule requires that
owners or operators proposing new
MSWLF units or lateral expansions
within a five-mile radius of any airport
runway end used by turbojet or piston-
type aircraft must notify the affected
airport and the appropriate Federal
Aviation Administration (FAA) office.
This procedural requirement is
consistent with existing FAA Order
5200.5A.
2, Section 258.11 Floodplains
The floodplaln provision applies to
new MSWLF units, lateral expansions,
and existing MSWLF units located in
100-year floodplains. These MSWLF
units may not restrict the flow of the
100-year flood, reduce the temporary
water storage capacity of the fioodplain,
or result in the washout of solid waste
so as to pose a hazard to human health
or the environment.
3. Section 258.12 Wetlands
Today's wetland provisions apply
only to new units and lateral expansions
of existing units; they do not apply to
existing units. New MSWLF units or
lateral expansions of MSWLF units are
barred from wetlands unless the owner
or operator can make the following
demonstrations to the Director of an
approved State. First, the owner or "
operator must rebut the presumption
that a practicable alternative to the
proposed landfill is available that does
not involve wetlands. Second, the owner
or operator must show that the
construction or operation of the landfill
will not cause or contribute to violations
of any applicable State water quality
standard, violate any applicable toxic
effluent standard or prohibition.
Jeopardize the continued existence of
endangered or threatened species or
critical habitats, or violate any
requirement for the protection of a
marine sanctuary. Third, the owner or
operator must demonstrate that the
MSWLF unit will not cause or contribute
to significant degradation of wetlands.
To this end, the owner or operator must
ensure the integrity of the MSWLF unit,
minimize impacts on fish, wildlife, and
other aquatic resources and their habitat
from release of the solid waste, and ,
assure that the ecological resources in
the wetland are sufficiently protected.
Fourth, the owner or operator must
demonstrate that steps have been taken
to attempt to achieve no net loss of
wetlands by first avoiding impacts to
wetlands to the maximum extent
practicable, then minimizing
unavoidable impacts to the maximum
extent practicable, and finally offsetting
remaining unavoidable wetland impacts
through all appropriate and practicable
compensatory mitigation actions.
Because this demonstration must be
approved by the Director of an approved
State, this provision effectively bans the
siting of new MSWLF units and lateral
expansions in wetlands in States that do
not have an EPA-approved permitting
program.
On August 9,1991, the Administrator
announced a comprehensive plan for the
protection of the Nation's wetlands.
Included were a number of actions to
improve the workability of the Clean
Water Act section 404 regulatory
program, which regulates the discharge
of dredged or fill material into wetlands.
Among these changes will be the
development of wetlands categories by
an interagency technical committee
based on wetland value. After such a
categorization scheme is developed, the
mitigation sequence (i.e., avoidance,
minimization, and then compensation)
will be retained for the high value
wetlands category, and projects in other
wetland categories will be required to
offset wetlands losses through
compensatory mitigation. When such
wetlands categories are identified, the
above changes to the section 404
permitting program will be implemented
through amendment of applicable legal
authorities. Section 258.12 of today's
rule is consistent with regulatory
provisions currently governing the
section 404 program. When the section
404 regulatory program is modified in
accordance with the Administrator's
wetlands protection program, relevant
portions of this rule will be modified
accordingly.
Furthermore, four agencies have
recently published proposed revisions to
a technical guidance document
implementing the current regulatory
definition of wetlands, and the agencies
will shortly be proposing to codify
portions of that document in the Code of
Federal Regulations. See 56 FR 40446
(Aug. 14,1991). The definition of
wetlands contained in § 258.12 of
today's rule reflects the Agency's
current definition under the section 404
program. See 40 CFR 232.2(r). When the
agency proposes amendments to the
definition of wetlands under the section
404 program, such changes will also be
proposed for the definition contained in
§ 258.12 of today's rule.
4. Section 258.13 Fault Areas
Today's rule bans the location of new
MSWLF units and lateral expansions"
within 200 feet (60 meters) of faults that
have experienced displacement during
the Holocene Epoch. In States with
approved programs, the owner or
operator may site within the 200-foot
zone if the owner or operator
demonstrates to the Director of an
approved State that an alternative
setback distance of less than 200 feet
will prevent damage to the structural
integrity of the MSWLF unit and will be
protective of human health and the
environment.
5. Section 258.14 Seismic Impact Zones
Today's rule bans the location of new
MSWLF units and lateral expansions in
seismic impact zones. In States with
approved programs, owners or operators
may locate new MSWLF units and
lateral expansions in a seismic impact
zone if they successfully demonstrate to
the Director of an approved State that
the unit is designed to resist the
maximum horizontal acceleration in
lithified material for the site. The design
features to be protected include all
containment structures (i.e., liners,
leachate collection systems, and surface
water control systems). For purposes of
this requirement, seismic impact zones
are defined as areas having a 10 percent
or greater probability that the maximum
expected horizontal acceleration in hard
rock, expressed as a percentage of the
earth's gravitation pull (g), will exceed
0.10g in 250 years,
6. Section 258.15 Unstable Areas
Owners or operators of new MSWLF
units, lateral expansions, and existing
MSWLF units located in unstable areas
must demonstrate to the State Director's
satisfaction that the integrity of the
structural components of the unit will
not be disrupted. The demonstration
must show that the structural
components of the MSWLF can
withstand the impacts of establishing
events, such as landslides. The
structural components include liners,
leachate collection systems, final cover
systems, run-on and run-off control
systems, and any other component used
hi the construction and operation of the
MSWLF unit that is necessary for
-------
'.'.•! .:i •'... ^.'.j ,"s :'' i:.'\ ; ' /• i* <„ ,-.,' _-' '•* -. '<•,-." ,. "i; -.; =,,_ U -... . «•"*•'.; *.,'.« =./ > i -. - ., ',. ..'..,. 3 • '") ,. - , 1 .. i' _ •
Federal Register /Vol. 56. No. 196 / Wednesday, October 9, 1991 / Rules and Regulations 51005
protection of human health and the
environment. >
7. Section 258.16 Closure of Existing
Units :
Today's rule requires owners and
operators of existing MSWLF units that
cannot make the airport safety, : ;; .
floodplain, or unstable area ,;.
demonstrations required under ! ' "•
§§ 258,10fa\ 258.11fal, or 258.15(k) to
close the MSWLF unit within five years i
of the date of publication of ttis rule ,
unless the Director of an approved State
extends the deadline. The Director of an
approved State may extend the deadline
for up to two years, but only after
considering the availability of -
alternative waste disposarcapacity and
the potential risk to human health and
.the environment. - I
C. Subpart C—Operating Criteria. .
Subpart C of today's rule establishes
( operating requirements for new MSWLF
units; existing MSWLFs, and lateral :':
expansions..Figure 3 lists :these
operating requirements, each of which is
explained briefly below.
BILLING CODE 6S6P-SO-M '
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51006 Federal Register / Vol. 56, No. 196 / Wednesday, October 9,1991 / Rules and Regulations
Figure 3
OPERATIONAL REQUIREMENTS
All owners/operators must:
• Exclude the receipt of hazardous waste
• Provide daily cover
• Control on-site disease vectors
• Provide routine methane monitoring
• Eliminate most open burning
• Control public access
• Construct run-on and run-off controls
• Control discharges to surface water
• Cease disposal of most liquid wastes
• Keep records that demonstrate compliance
BU.UNQ CODE 6560-50-C
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Federal Register/ Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations 51007
1, Section 258.20 Procedures for
.Excluding the Receipt of Hazardous
Waste - . •-.-;-,;• ;.„,< ;,,, :
Today's rule requires owners or
operators of all MSWLF units to
implement a program at the facility for
detecting and preventing the disposal of
regulated quantities of hazardous
wastes and polychlorinated biphenyl
(PCS) wastes. This program must
include random inspections of incoming
loads, records of any inspections, and
training of facility personnel to
recognize regulated hazardous waste
and PCB wastes, and notification to
States with authorized RCRA subtitle C
programs or the EPA Regional
Administrator in an unauthorized State
if-a regulated hazardous waste or PCB
wastes are discovered at the facility.
2. Section 258.21 Cover Material
Requirements .
Today's rule requires owners or ,
operators of all MSWLF units to cover
disposed solid waste with at least six
inches of earthen materials at the end'of
each operating day. Daily cover is
necessary to control disease vectors,
fires, odors, blowing litter, and
scavenging. The Director of an approved
State can temporarily waive the daily
cover requirement during extreme
seasonal climate conditions .and may
allow alternative materials to be used as
daily cover material.
3. Section'258.22 Disease Vector
Control
Today's rule requires owners or
operators of all MSWLF units to prevent
or control on-site disease vector
populations using appropriate
techniques to protect human health and
the environment. .
4. Section 258.23 Explosive Gases
Control
Today's rule requires the owners or
operators of all MSWLF units to ensure
that the concentration of methane
generated by the MSWLF not exceed 25
percent of the lower explosive limit
(LEL) in on-site structures, such as scale
houses, or the LEL itself at the facility
property boundary. The owner or
operator must implement a routine
methane monitoring program, with at
least a quarterly monitoring frequency.
If the methane concentration limits are
exceeded, the owner or operator must
notify the State Director within seven
days that the problem exists and submit
and implement a remediation plan
within 60 days. .-..-.-
5. Section 258.24 Air Criteria
Section 258?24(a) requires owners or
operators of all MSWLF units to comply
with applicable requirements of State
Implementation Plans (SIPs) developed1
under section 110 of the Clean Air Act
CCAA). Open burning is prohibited ,
except in limited circumstances, which
indude the infrequent burning of
agricultural wastes, silvicultural wastes,
land-clearing debris, diseased trees, or
debris from emergency clean-up
operations. '•
6. Section 258.25 Access Requirements
Section 258.25 requires owners or
operators of all MSWLF units to control
public access to MSWLF units and to
prevent illegal dumping of wastes,
public exposure to hazards at MSWLFs,
and unauthorized vehicular traffic.
7. Section 258.26 Run-on/Run-off Control
Systems
Section 258.26 requires owners or
operators of all MSWLF units to design,
construct, and maintain run-on and run-
off control systems to prevent flow onto
and control flow from the active portion
of the MSWLF unit. Run-off from the
active portion of the unit must be
handled in accordance with the surface
water requirements of today's rule.
8. Section 258.27 Surface Water
Requirements
Under today's rule, all MSWLF units
must be operated in compliancewith
National Pollutant Discharge : . .
Elimination System (NPDES)
requirements, established pursuant to
section 402 of the Clean Water Act. Any
discharges of a nonpoint source of
pollution from an MSWLF unit into
waters of the United States must be in
conformance with any established water
quality management plan developed .
under the Clean Water Act. ...
9. Section 258.23 Liquids Restrictions
In today's rale, the disposal of bulk or
noncontainerized liquid wastes in
MSWLF units is prohibited, with two
exceptions: (1) The waste is household
waste (other than septic waste) and (2)
the 'waste is leachate or.gas condensate
that is derived from the MSWLF unit,
and the MSWLF unit is equipped with a
composite liner and leachate collection
system.
Containers of liquid waste can be
placed in MSWLF units only when thp
containers (1) are small containers
'similar in size to that typically found n
• household waste; (2) are designed to
hold liquids forjise other than storage;
or (3) hold household waste. "Liquid
waste" is defined in today's rule as any
waste material determined to contain
free liquids as defined by Method 9095
"Paint Filter Liquids Test".
10. Section 258.2&Recordkeeping
Requirements r
Today's rule requires that the
documents arid records required under
this Part be retained near the facility in
an operating record by the owner or
operator of each MSWLF unit. (An
alternative location may be approved by
the Director of an approved State.)
These documents are listed in
§ 258.29(a) of today's rule. Upon
completion of each document required ;
in the operating record, the owner or
operator must notify the State Director
of its existence and its addition to the
operating record^Furthermbre, all
information contained in this operating
record must be furnished upon request
or be made available at all reasonable
times for inspection by the'State
Director.
Today's rule allows the Directo. :M«... '
approved State to set alternative
schedules for the recordkeeping and
notification requirements specified in ;
the rule except the notification
requirements in § 258.10(b)"pertaining tp
the notification of the FAA by owner/
operators planning to site a new or
lateral expansion of a MSWLF within a
5-niile radius of an airport, and
§ 258.55(g)(l)(iii) pertaining to the
notification of. persons who own land or
reside on land overlying a plume of
ground-water contamination.
D. Subpart D-^Design Criteria
Subpart D of today's rule establishes
facility design requirements applicable
to new MSWLF units and lateral
expansions. These requirements do not
apply to existing units.
Today's final design criteria provide
owners and operators with two basic
; design options: A site-specific design
that meets the performance standard in
today's rule and is approved by the .
Director of an approved State or a
composite liner design. These two
design options are depicted graphically
in Figure 4.
BIU.&M3 CODE 6560-SO-IS
-------
Figure 4
DESIGN CRITERIA
New MSWLF units and lateral expansions must have one
of the following designs:
COMPOSITE LINER AND LEACHATE
COLLECTION SYSTEM DESIGN
Leachate
Collection
System
\
o o o o o o
Flexible
Membrane
Liner
L
Compacted Soil
(permeability
js.1 x 10 "7 cm/sec)
DESIGN THAT MEETS PERFORMANCE STANDARD AND
APPROVED BY AN APPROVED STATE
Approved
Design
Relevant Point of
Compliance
Less than Allowable Constituent
Concentration
.Uppermost Aquifer
BILLING CODE 6560-50-0
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Federal Register / VoL 56. No. 196 / Wednesday, October 9, 1991 / Rules and Regulations •< 51*W9
: The first option, wjiich is available in
'approved States, allows owners or
operatorsHp-consider site-specific
conditions in developing a design that
; must be approved by the Director of an
approved State. This design must meet
, the performance standard in § 258.40,
which requires that the design ensure
; that the MCLs (Table 1 of today's rule)
will not be exceeded at the relevant
point of compliance. ; ,
When evaluating whether designs
meet the performance standard, the
approved States must consider a
number of site-specific factors, such as
the climate and hydrogeology -of the site.
For example, in areas where ground
water is vulnerable, the State may
require a composite.linef system. In
other areas where ground water is less
vulnerable, the State may determine that
a less comprehensive design meets the
performance standard. State program
approvals will be established in
accordance with the "State
Implementation Rule," expected to be
proposed in early 1992.
The second option, the_ composite
liner system, is required only for
landfills located in States without EPA
approved programs. The composite liner
system is designed to be protective in all
locations, including poor locations. It
consists of a composite liner, including a
flexible membrane liner and a
compacted soil component, and a
leachate collection and removal system.
EPA is concerned that certain owner/
operators of new units or lateral
expansions may be forced to use the
design standard in § 258.40(a)(2) in
situations where the composite liner
specified in that section is not necessary
to protect human health and the
environment, and their state does not
have program approval. In these cases
the performance standard under
§ 258.40(aKl) may be more appropriate
since it would potentially avoid an.
unnecessarily stringent design.
Therefore, the Agency has established a
petition process in § 258.40(e). This
process allows the owner/operator to
use the performance standard in
§ 258.40(a)(l) if the State determines
that the owner/operator's design meets
the performance standard, and the State
petitions EPA to review its
determination, and EPA either approves
the design or does not disapprove the
design within 30 days of receipt.
Additional discussion regarding
today's design criteria can be found in
sections IV.B and IV.C and appendix D
of this preamble., , , .
E, SubpartE-—Ground-Water Monitoring
and Corrective Action *
a. To Whom Does This Requirement
Apply?
Today's rule requires a system of
monitoring wells to be installed at new
units, lateral expansions, and existing
. MSWLF units. Owners and operators of
landfills that qualify for the small
community exemption are riot required
. to comply with the requirements of this
subpart. In addition, today's rale
provides for limited waivers for owners
or operators who can demonstrate to the
Director of an approved State that the
MSWLF unit is located above a
hydrogeologic setting that will prevent
hazardous constituent migration to
ground water during the active life of the
unit,, as well as during facility closure
and throughout the post-closure period
(§ 258.50(b)).
b. When Must Ground-Water
Monitoring be hi Place?.
,New MSWLF units must have ground-
watermonitoring systems in place prior
to accepting waste. The schedule for
installing the ground-water monitoring
system at existing MSWLF units and
lateral expansions is dependent upon
the location of the landfill with respect
to the nearest drinking water intake
{§258.50(c)).
Today's rule allows the Director of an
approved State to establish ah • ..
alternative compliance schedule for
phasing in the ground-water monitoring
requirements at existing MSWLF units.
This alternative schedule provides:that
all existing MSWLF units will be
required to have ground-water
monitoring systems by October 9,1996
(§ 258.50(d)).
c. What Criteria Must the Ground-Water
Monitoring System Meet?
The ground-water monitoring system
must consist of a sufficient number of
appropriately located wells able to yield
ground-water samples from the
uppermost aquifer that represent the
quality of background ground water and
the quality of ground water passing the
relevant point of compliance as
specified by the Director of an approved
State (§ 258.51). Each MSWLF unit is
required to have a separate ground-
water monitoring system unless the
Director of an approved State allows
multi-unit ground-water monitoring
systems based on consideration of
several factors. Monitoring wells must
be cased in a manner maintaining the
integrity of the bore hole and must.be
maintained so as to meet design
specifications. The number, spacing, and
depths of monitoring wells may be.
based on site-specific characteristics,
but each ground-water monitoring ;
system must be certified as adequate by
a qualified ground-water scientist or
approved by the Director of an approved
State. ,:•
d. What are the Procedures for Sampling
arid Analysis?
The rule provides procedures for :
sampling monitoring wells and methods
for the statistical analysis of ground-
water monitoring of hazardous
constituents released from the MSWLF
(§ 258.53). Requirements are included for
determination of ground-water
elevations, background ground-water
quality, and the number of samples to be
collected.
e. What are the Steps in the Ground-
Water Monitoring and Corrective Action
Programs? '
Todayte monitoring and corrective
action provisions include three steps,
which are depicted hi Figure 5. In the
first step, today's rule requires owners
or operators of MSWLFs to establish"
background concentrations and sample
at least semiannuajly during the active
life of the facility, closure, and post-
closure periods for a set of detection
monitoring indicator parameters
(§ 258.54). These indicator parameters
include 47 volatile organic compounds
and 15 metals (see Appendix I). The
Director of an approved State may
delete any of the constituents in
Appendix I if it can be determined that a
constituent is not reasonably expected
to be contained in or derived from the
waste contained in the unit. In addition,
the Director of an approved State may
establish an alternative list of inorganic
indicator parameters for a MSWLF unit,
in lieu of some or all of the heavy metals
(constituents 1-15 hi Appendix I), if the '
alternative parameters provide a
reliable indication of inorganic releases
from the MSWLF unit to the ground
water. The Director of an approved
State also may specify an alternate
frequency for repeated sampling of
Appendix I constituents during the
active life of the MSWLF, and during
post-closure. The alternative frequency
during the active life must be no less
than annual. ;
BILLING CODE 6560-SO-H . > ,
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51010 Federal Register /Vol. 56. No. 196'/ Wednesday, October 9,1991 / Rules and Regulations
1 '.;.'.;..., . Figures '.'.;.... . '' ''.'' .!','•'.
Ground-Water Monitoring and Corrective Action
Ground-Water
Monitoring Program
Install Monitoring System
(258.51)
Establish Sampling and
Analysis Program (258.53)
Detection
Monitoring (258.54)
Begin Semi Annual
Detection Monitoring for
Appendix I Constituents
Is
There a
Statistically
Significant Increase
in Appendix I
Constituents
Assessment Monitoring (258.55)
• Sample for All Appendix II Constituents .'•
• Set Ground-Water Protection Standard for Detected
Appendix II Constituents
• Resample -SO-C
-------
Federal Register / Vol. 56, No. 196 A Wednesday. October 9, 1991 / Rules and Regulations 51011
If any of the detection monitoring
parameters are detected at a <
statistically significant level over the
established background concentrations,
the owner or operator must move to the
second step, assessment monitoring, and
notify the State Director. After
determining a statistically significant
increase over background
concentrations, the owner or operator <
must establish an assessment .
monitoring program unless he or she can
demonstrate, based on certification by a
qualified ground-water scientist (or
approval of the Director of an approved
State), that the contamination has
: -resulted from a source other than the
landfill or that the increase resulted
, from an error in sampling, analysis,
statistical evaluation, or natural
variation in ground-water quality.
Assessment monitoring (§ 258.55)
requires annual analysis for 'the full list
of hazardous constituents included in
appendix II. However, the Director of an
• approved State may specify an
alternative frequency for annual
sampling and analysis of the full list of
appendix II constituents, and may
specify an appropriate subset of wells
for the annual appendix II analysis. The
Director of an approved State also may
modify the list of constituents in
appendix n if it can be determined that
a constituent is not reasonably expected
to be in or derived from the waste
contained in the unit.
If any appendix n constituents are
detected, in either the initial or repeated
appendix II analyses, the owner or
operator must notify the State Director
and continue to monitor, at least
semiannually, for those constituents in
appendix II that were detected. The
Director of an approved State may
specify an alternative frequency -other
than semiannual. If the owner or
operator demonstrates, at any time
during assessment monitoring, that all of
the detected appendix II constituents
are at or below background values for
two consecutive sampling events, he
must notify the State and may return to
detection monitoring.
For each appendix II constituent that
is detected, background concentrations
and a ground-water protection standard
(GWPS) must be set. The GWPS inust be
' the MCL or background concentration
level for the detected constituent.
However, the Director of an approved
State may set an alternative GWPS
based on criteria defined in today's rule.
• The Downer or operator must compare
; the levels of those detected appendix H •
constituents'to the appropriate GWPS. If
(subsequent monitoring indicates a• •• • :,.•
statistically significant increase over the
GWPS, the owner or operator is " r
required to notify the State Director and
local officials and characterize the
nature and extent of contamination. The
owner or operator must make a best
effort to characterize the nature and
extent of the plume, including the
delineation of the plume off site. As part
of characterizing the nature and extent
of the release, the owner or operator
must install additional wells, if <
necessary. At least one well, however,
must be installed at the facility
boundary in the direction of
contaminant migration in Order to
ascertain whether or not the
contaminants have migrated past the
facility boundary. If contamination has
migrated off-site, the owner or operator
must notify individuals who own land or
reside on land overlying the plume.
The owner or operator must then
evaluate alternative corrective measures
(§ 258.56) and select the appropriate
remedy (§ 258.57). During this phase, the
owner or operator is required to
continue at least semiannual monitoring,
(or an alternative frequency no less than
annual) for all appendix I constituents
(or an alternative list approved by the ••'.
Director of an approved State) and for
those appendix II constituents
exceeding the GWPS. As part of
evaluating potential remedies, the owner
or operator must hold a public meeting
to discuss the remedies under
consideration (prior to selecting affinal
remedy). Once the owner or operator
has selected a remedy, he must place a
description of the selected remedy in the
operating record and notify the State
Director.
The Director of an approved State ,
may determine, however, that
remediation of a release is .not
necessary if: (1) The ground water is
contaminated by multiple sources and
cleanup of the contamination resulting
from the MSWLF will provide no
significant reduction in risk; (2) the
contaminated ground-water is not
currently or reasonably expected to be a
source of drinking water and is not
hydraulically connected to other waters;
(3) remediation is not technically
feasible; or (4) unacceptable cross-
media impacts would result from
remediation.
After the remedy has been selected,
the owner or operator is required to
implement the corrective measure,
establish a corrective action ground-
water monitoring program, and take any
necessary interim measures (§258.58).
During implementation of the corrective '
measure,'the owner or operator may • '• i
^determine that a requirement for the
remedy cannot be met. In this situation,
the owner or operator must obtain
certification of a qualified ground-water
scientist (or approval of the Director of
an approved State) that the requirement
.cannot be met, notify the State Director,
and implement an alternate measure. "
Once, implemented, corrective action •
must .continue until the owner or ' • i. .
operator achieves compliance with the-'
GWPS for a period of three consecutive.
years or an alternate period of time
determined by the Director of an
approved State. Upon completion, the
owner or operator must obtain
certification that the remedy is complete
. from a qualified ground-Water scientist
(or approved by the Director of an
approved State) and notify the State
Director.
F. Subpart F—Closure and Post Closure-
Care
Today's rule requires owners or
operators qf new MSWLF units, lateral
expansions, and existing MSWLF units
to close each unit in accordance with
• specified standards and to monitor and
maintain the units after closure. In
addition, the rule requires all owners or
operators to prepare closure and post-
closure plans describing these activities ,
and to Comply with a minimum set of
procedural requirements.
1. Closure Requirements . :
All owners or operators of MSWLF
units must install a final cover designed
to minimize infiltration and erosion. The
infiltration layer must be a minimum of
18 inches of earthen material that has a
permeability less than or equal to the
permeability of the bottom liner system
or natural subsoils, or no greater than
1X10—5 cm/sec, whichever is less. The
erosion layer must be a minimum of six
inches of'earthen material that can
sustain native plant growth. The
Director of an approved State may allow
an alternative cover design if the cover
layers achieve the same objectives as '
the specified design in the final rule.
2. Post-Closure Care Requirements
Today's rule requires all owners or
operators to conduct post-closure care
activities for a period of 30-years after
the closure of each MSWLF unit. The
Director of an approved State may
either reduce the 30-year post-closure
period if the Director determines a
shorter period will be protective of
human health and the environment or
increase the post-closure care period if
he/she determines that a lengthened
period is necessary to protect human
'health and the environment. During the, •
post-closure care period,'all owners or
operators of MSWLF units must
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§1012 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
maintain the integrity and effectiveness
of the final cover, and continue ground-
water monitoring, gas monitoring, and
Icachate management.
3. Planning Requirements
Today's rule also requires owners or
operators of MSWLF units to prepare
closure and post-closure plans
describing activities that will be
undertaken to properly close each
MSWLF unit and maintain them after
closure. These plans must be prepared
and placed in the facility operating
record no later than the effective date of
today's rule, or by the initial receipt of
waste, whichever is later.
The closure and post-closure care
standards also include certain
procedural requirements. First, prior to
closing each landfill unit, an owner or
operator must notify the State Director
and Include the notification in the
facility operating record. Second, the
owner or operator must begin closure of
a landfill unit within 30 days after the
final receipt of waste and complete
closure within 180 days. Extensions of
both of these deadlines may be granted
only by the Director of an approved
State and only if certain criteria are met
Third, following closure of the last
landfill unit, owners or operators of aU
MSWLF units must record a notation in
the deed to the property, that indicates
that the property has been used as an
MSWLF unit and that its use is
restricted. Finally, owners or operators
of all MSWLFs must notify the State
Director and place in the facility
operating record a certification signed
by an independent registered
professional engineer (or approved by
the Director of an approved State) that
verifies that closure and post-closure
care activities have been conducted in
accordance with the closure and post-
closure plans.
G. Subpart G—Financial Assurance
Criteria
Today's rule requires owners or
operators of all new MSWLFs, lateral
expansions, and existing MSWLF units,
except those owned or operated by
State or Federal government entities, to
demonstrate financial responsibility for
the costs of closure, post-closure care,
and corrective action for known
releases.
Today's rule requires owners or
operators of MSWLF units to
demonstrate financial responsibility for
closure, post-closure care, and
corrective action for known releases in
an amount equal to the cost of a third
party conducting these activities. The
cost estimates must be updated annually
for Inflation and whenever operation or
design changes increase the costs at the
MSWLF unit An owner or operator may
reduce his cost estimates and the
amount of financial responsibility
provided he places a justification for the
reduction hi the estimate in the
operating record and notifies the State
Director.
Today's rule includes a list of specific
financial mechanisms that may be used
to demonstrate financial responsibility,
as well as criteria for judging whether ,
other mechanisms are acceptable. The
rule permits the use of a trust fund with
a pay-in period, surety bond, letter of
credit insurance, State-approved
mechanism, and State assumption of
responsibility.
Today's rule releases an owner or
operator from closure, post-closure care,
or corrective action financial
responsibility when he or she has
notified the State Director that he has
placed in the facility operating record a
certification signed by an independent
registered professional engineer (or
approved by the Director of an approved
State) that the specific activities (i.e.,
closure, 30 years of post-closure care,
corrective action) have been completed
in accordance with the appropriate plan.
In addition, to be released from financial
responsibility closure, an owner or
operator must file the required notation
to the deed that the land has been used
as an MSWLF unit
The financial responsibility
requirements are effective 30 months
after the publication of today's rule to
allow time for rule development and
implementation.
VBL Implementation of Today's Rule
States and owners and operators will
need to undertake a number of steps to
implement today's- rule. As discussed
below, many of these steps, such as
State program upgrades and owner or
operator compliance planning, need to
be initiated well before the effective
date of the rule.
A. State Activities
As indicated earlier, States will play a
key role in implementing today's rule.
RCRA requires States to adopt and
implement within 18 months of the
promulgation of this rule, a permit
program or other system of prior
approval to ensure that MSWLFs are in
compliance with the revised Criteria.
EPA is required to determine whether
States have developed adequate
programs.
To implement the above statutory
mandate, States need to move quickly to
review their existing permitting program
to determine where their program must
be upgraded and to complete the
necessary program changes, if any are
needed. States should work closely with
the appropriate EPA Regional Office
during this process and in developing
the appropriate program information fo*
EPA review and approval. The process
and criteria EPA will use in evaluating
the adequacy of State programs will be
set forth in a separate rule, the "State
Implementation Rule," to be issued
shortly. The Agency recognizes the
traditional role of States in
implementing landfill standards and
fully intends that the States will
maintain the lead role in implementing
today's program. Therefore, EPA's goa'
is for all States to apply for and receive
approval of their programs.
Once a State is approved by EPA, the
State will implement its revised subtitle
D program (or continue with their
current program if no changes were
needed). As part of this effort, States
will need to review arid modify existing
permits as necessary and incorporate
the revised Criteria into new permits.
Approved States may establish
alternative compliance schedules for
ground-water monitoring at existing
landfills and approve alternative
methods of compliance for selected
requirements. Finally, approved States
will need to conduct inspection and
enforcement activities.
B. Owner or Operator Activities
Owners or operators are responsible
for compliance with today's rule by the
effective date regardless of the status of
the State's program. In fact, today's rule
is structured to facilitate self-
implementation by the owner or
operator. However, if the facility is
located in an approved State, the owner
or operator has the opportunity for
increased flexibility in complying with
today's rule. As mentioned above,
approved States may approve, under
certain conditions, alternative
compliance schedules and methods or
procedures. The owner or operator
should contact the State to determine
the status of the State program.
Owners and opeFators should begin
planning immediately for compliance
with today's rule. A key first step is
determining which requirements, if anj,
will apply. Figure 1 in Section VI of
today's preamble provides a decision-
making process to assist in this process.
Figure 1 indicates, for example, that if
your MSWLF will not receive waste
after the effective date, only the final
cover requirements of § 258.60(a)(2) will
apply. If the community plans to phase
out its existing MSWLF* it will need to
identify an alternative waste
-------
Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 /Rules and Regulations 51013
management arrangement for the
community.
If the MSWLF will receive waste after
the effective date of today's rule, all or
some of the Part 258 requirements will
apply. The specific requirements
applicable to your MSWLF unit depend .
on whether your MSWLF unit is an •
existing unit, lateral expansion, or a new
MSWLF unit All requirements apply to
new units and lateral expansions; ail
requirements, excent certain location
restrictions and the design criteria,
apply to existing MSWLF units. Section
VI of this preamble summarizes the
major requirements in-today's rule and
their applicability to various types of
MSWLF units* ' . - •
Once an owner or operator has
determined which requirements will
apply to her/his MSWLF unit, the owner
or operator should begin to take steps to
ensure compliance by the effective date
of the requirement. Figure 6 provides an
overview of today's requirements and
when they will become effective. All
requirements are effective in 24 months,
except ground-water monitoring (for
existing units and lateral expansions)
and financial responsibility. Ground-
water monitoring is phased in over a
five-year period for existing MSWLF
units and lateral expansions, and
.owners and operators must comply with
financial assurance in 30 months.
BILLING CODE 6560-SO-M
-------
Figure 6
EFFECTIVE DATE OF PART 258 REQUIREMENTS
DAY 24 MONTHS 30 MONTHS 3 YEARS 4 YEARS 5 YEARS
1 Location Restrictions
I Design Criteria (New Units and Lateral E
Operating Criteria
'Ground-Water Monitorina and Correetiv
L^ New Units I
Existing Units or Lateral Expansions Less than JL
1 Mile from Drinking Water Intake jjp—i—
Existing Units or Lateral Expansions Less than j
2 Miles from Drinking Water Intake *
.-.- .- - ... • ' • f I
Existing Units or Lateral Expansions Gr
2 Miles from Drinking Water Intake
L Final Cover Requirement ^ Closure and' Post-Closure Care
r f i i •
| 1 Financial Assi
r ! i ! A
xpansions)
3 Action:
i • - ,
eater than L
•
jrance
_7V
_^^
b— *-;
r .
.
BILLPNS COnp occn tn /. ^f • • ^f
at
8
a,
-------
51016
Register / Vol. 56. No. 196 / Wednesday. October'^ 1991 I Ruleli a^ Regulations
. (7) U.S. EPA, QSWER, Report to Congress,
Methods to Manage and Control Plastic
Wastes. EPA/530-SW-89-051. February. 1990.
1 (8)U,.S. EPA, OSW, Summary of Data on
Municipal Solid Waste Landfill Leachate
Characteristics-:-Criteria for Municipal Solid
Waste Landfills (40 CFR part 258)--Subtitle D
of the Resource Conservation and Recovery
Act (RCRA). July 1988. (draft). EPA/53<«'W-
88-038, PEI88-242441. ...
(9) U.S. EPA, OSWER, Characterization of
Municipal Solid Waste in the United States:
1990 Update. EPA/530-SW-90-042. June 1990.
(10) U.S. GAO, Nonhazardous Waste:
Environmental Safeguards for Industrial
Facilities Need to be Developed. GAO/
RCED-90-92. April 1990. _ •. ' -
XL List of Subjects
40 CFR Part 257
Reporting"and recordkeeping
requirements, Waste disposal.
40 CFR Part 258 ''-'.--
Corrective action, Household
hazardous waste, Liner requirements,
'Liquids in landfills, Reporting and
recordkeeping requirements, Security
measures, Small quantity generators,
Waste disposal, Water pollution control.
Dated: September 11,1991.
winiamK.Reuly,
Administrator^ ;
For reasons set out in the preamble,
title 40 of the Code of Federal
Regulations is amended as set forth
below:
PART 257—CRITERIA FOR
CLASSIFICATION OF SOLID WASTE
DISPOSAL FACILITIES AND
PRACTICES
1. The authority citation for part 257 is
revised to read as follows:
Authority: 42 U.S.C. 6907(a)(3), 6944(a) and
6949a(c), 33 U.S.C. 1345 (d) and (e).
2. Section 257.1 is amended by adding
paragraph (c)(10) to read as follows:
§257.1 Scope and purpose.
* * * * *
(C)* * *
(10) The criteria of this part do not
apply to municipal solid waste landfill"
. units, which are subject to the revised
criteria contained in part 258 of this
chapter. ,
3. Section 257.2 is amended by
revising the definition for "facility" and
adding definitions in alphabetical order
for "land application unit," "landfill,"
"municipal solid waste landfill unit,"
"surface impoundment," and "waste :
pile" to read as follows: , ;
§257,2 Definitions. :
* *-. * * '••*.. '' '" ' '
Facility means all contiguous land
and structures, other appurtenances,
and improvements o4 the land used for
the disposal of solid waste.
; Land application unit means an area
where wastes are applied onto or ; .
incorporated into the soil surface
(excluding manure spreading
operations] for agricultural purposes or
for treatment and disposal.
Landfill means an area of land or an
excavation in which wastes are placed
for permanent disposal, and that is not a
land application unit, surface
impoundment, injection well, or waste
'pile.
* * *. * *
Municipal solid waste landfill
(MSWLF) unit means a discrete area of
land or an excavation that receives
household waste, and that is not a land
application unit, surface impoundment,
injection well, or Waste pile, as those
terms are defined in this section. A
MSWLF unit also may receive other •
types of RCRA Subtitle D wastes, such
as commercial solid waste,
nonhazardous sludge, and industrial
solid waste. Such a landfill may be
publicly or privately owned. Ari MSWLF
unit may be a new MSWLF unit, an
existing MSWLF unit or a lateral
expansion.
* * * * *
Surface impoundment or
impoundment means a facility or part of
a facility that is'a natural topographic
depression, human-made excavation, or
diked area formed primarily of earthern
materials (although it may be lined with
human-made materials), that is designed
to hold an accumulation of liquid wastes
or wastes containing free liquids and
that is not an injection well. Examples of
surface impoundments are holding
storage, settling, and aeration pits,
ponds, and lagoons. •
* *..».*. *
Waste pile or pile means any :
noncontainerized accumulation of solid,
nonflowing waste that is used for
treatment or storage.
*****
4. In 40 CFR part 257, Appendix I is
revised to read as follows:.'-
Appendix Ito 40 CFR Part 257—•
Maximum Contaminant Levels (MCLs)
: ••••-? . -'--'.
MAXIMUM CONTAMINANT LEVELS (MCLs)
PROMULGATED UNDER THE SAFE
DRINKING WATER ACT .
MAXIMUM CONTAMINANT LEVELS'(MCLs)
PROMULGATED UNDER THE SAFE
DRINKING WATER ACT—Continued
Chemical
Chromium (hexavalerit) ....
2,4-Dichlqrophenoxy acetic
i,4-Dichlorobenzene ....
1,2-Dichloroethane
1 ,1-Dichloroethylene ..
Lead «•»•
Silver •
1 ,1 ,1 -Trichloroethane ....
2,4,5-Trichloirophenoxy
Vinyl chloride ........
CAS No. r
7440-47-3
94-75^7
106-46-7
107-06-2
75-35-4
75-20-8
7
58-89-9
7439-92-1
7439-97-6
72-43-5
7782-49-2
7440-22-4
8001-35-2
71-55-6
79-01-6
93-76-5
75-01-4
MCL
(mg/D
0.0&
0.1
0.075
0.005
0.007
0.0002
4.0
0.004
0.05
0.002 '
0.1
10.0
0.01
0.05
0.005
' 0.2
0.005
Os.01
0.002
Chemical
Carbon tatrachtorida .....;........
CAS No.
7440-38-2
7440^39-3
71-343-2
7440-43-9
•56^23^5'
MCL
(mg/l)
0.05
10
0005
,0,01
0005
5. A new part 258 is added to read as
follows: .
PART 258—CRITERIA FOR MUNICIPAL
SOLID WASTE LANDFILLS
Subpart A—^Senesral . - • -
.Sec. .. ' •'", ' •'• ' -• ' '. .- :
258.1 Purpose, scope, and applicability.
258.2 Definitions'.
258.3 Consideration of other Federal laws.' j
258.4-258.9 [Reserved]. •
Subpart B—Location Restrictions
Sec. . " ; ']'.•'••'
258.10 Airport safety. : ,
258.11 Floodplains.
258.12 Wetlands.
258.13 Fault areas. •
258.14 Seismic impact zones.
258.15 Unstable areas.
258.16 Closure of existing municipal solid
waste landfill units.
258.17-258.19 [Reservedl' • ,
Subpait C—Operating Criteria
Sec..
258.20 Procedures for excluding the receipt
of hazardous waste.
258.21 Cover material requirements.
258.22 Disease vector control. :
258.23 Explosive gases control. •
258.24 Air criteria.
258.25 Access requirements. ,
258.26 Run-on/run-off control systems. •
258.27 Surface water requirements.
258.28 Liquids restrictions.
258.29 Recordkeeping requirements';
258.30-258.39 ; [Reserved].
Subpart D—Design Criteria
Sec '
258 40 Design criteria.
258;41-258.49 [Reserved].
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Federal Register / Vol. 58. No. 196 / Wectnesday.jctober 9, 1991 / Rulea and Regulations 51015
Owners or operators should examine
each of the applicable requirements to
identif^ steps necessary to ensure
compliance. First, the owner or operator
, should (jvaluate the characteristics of
the landfill site to determine if it
complies with the location restrictions in
today's rule. Certain restrictions apply
for areas near airports, floodplains,
unstable areas, wetlands, seismic
impact zones, and fault areas. Some
operational or design modifications may
be needed at existing MSWLFs or for
new MSWLFs that are planned.
Today's final design requirements do
not apply to existing units. However,
owners or operators of new MSWLF
units or lateral expansions should
review their design plans to ensure that
they will meet the specifications of the
final rule (i.e., a design that meets the
performance criteria in subpart D of
today's rule and is approved by the
Director of an approved State or a
composite'liner design).
Owners or operators of MSWLFs
should review the current operating
procedures (or planned procedures if a
new unit or a lateral expansion) of the
landfill to determine if all required
operational procedures are currently
being carried out at the facility. For
example, the owner or operator will
need to have a routine methane
monitoring program in place, control
disposal of liquids, and establish a
program for detecting and preventing
disposal of regulated hazardous waste
and PCB wastes. All of today's
operating requirements are summarized
in Section VI above.
As part of examining and upgrading
the operation of the landfill, the owner
or operator will need to begin steps to
establish a ground-water monitoring
program at the facility or upgrade the
existing monitoring program. These
steps include characterizing the
hydrogeology of the site, installing wells.
and establishing a sampling and
analysis program. As indicated in Figure
6, the date monitoring must be in place
depends on the location of the landfill
with respect to drinking water intakes.
Approved States may set an alternative
schedule so owners and operators
should contact their States for
information on the status of the State
program.
Owners and operators will also need
to develop and have in place within 24
months closure and post-closure care
plans for the landfill. These plans must
describe the various activities and
procedures the owner or operator will
follow in closing and carrying out post-
closure care at the landfill.,
Finally, the owner or operator should
begin early planning for implementation
of the financial assurance requirements
in today's rule. During the next 30
months, EPA plans to propose and
finalize a special test for local
governments. Therefore, owners and
operators, particularly local
governments, should track this effort
and provide input to the Agency on the
proposal.
Vm. EPA Training on Final Rule
As part of the implementation
program for this rule, EPA is planning to
conduct technical training for owners
and operators, local government, and
States. This training, which will be held
at several locations throughout the
country, will provide guidance on
interpreting the technical provisions of
today's rule/This training will be based
on a comprehensive technical guidance
document the Agency is currently
developing for this rule. EPA expects
that the guidance and the training
programs will be available within the
next six months. Specific information
regarding the dates and locations of
these programs will be announced in the
Federal Register in the near future.
EX. Paperwork Reduction Act
The information collection
requirements in this rule have been
submitted for approval to the Office of
Management and Budget (OMB] under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. The requirements are not
effective until OMB approves them and
a technical amendment to that effect is
published in the Federal Register.
The total annual public reporting
burden for this collection of information
is esh'mated to be 204,400 hours with an
average of 50 hours per response,
including time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch, PM-
223Y, U.S. Environmental Protection
Agency, 401M Street, SW., Washington,
DC 20460; and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
X. References
A. Comment Response Documents
The following comment response
documents have been prepared and
placed in docket number F-91-CMLF-
FFFFF.
• U.S. EPA, QSW. Comment Response
Document on the Proposed Solid Wast*
Disposal Facility Criteria—Notification
Requirements (40 CFR part 257) August 1W5U
• U.S, EPA, OSW. Comment Responsa
Document on the Proposed Solid Watte
Disposal Facility Criteria—General
Provisions (40 CFR part 258—subpart A)
August 1891.
• U.S. EPA, OSW. Comment Regponto
Document on the Proposed Solid Wast*
Disposal Facility Criteria—Location
Restrictions (40 CFR part 258—«ubpart B)
August 1991.
• U.S. EPA. OSW. Comment Response
Document on the Proposed Solid Waste
Disposal Facility Criteria—Operating Criteria
(40 CFR part 258—subpart C) August 1931.
• U.S. EPA, OSW. Comment Response
Document on the Proposed Solid Waste
Disposal Facility Criteria—Design Criteria (40
CFR part 258—subpart D) August 1991.
• U.S. EPA, OSW. Comment Response
Document on the Proposed Solid Waste
Disposal Facility Criteria—Ground-water
Monitoring and Corrective Action (40 CFR
part 258—subpart E) August 1991.
• US. EPA, OSW. Comment Response
Document on (he Proposed Solid Wast*
Disposal Facility Criteria—Closure and Post-
Closure Care (40 CFR part 258—subpart F)
August 1991. -
• U.S. EPA. OSW. Comment Responsa
Document on the Proposed Solid Waste
Disposal Facility Criteria—Financial
Assurance (40 CFR part 258—«ubpart G)
August 1991.
B. Regulatory Impact Analysis
• U.S. EPA, OSW, Regulatory Impact
Analysis (RIA) for the Final Criteria for
Municipal Solid Waste Landfills—(40 CFR
part 258)—Subtitle D of RCRA—December
1990.
• U.S. EPA, OSW, Addendum to RIA for
the Final Criteria for Municipal Solid Waste
Landfills—(40 CFR part 258)—Subtitle D of
RCRA—August 1991.
• U.S. EPA, OSW, Comment Response
Document on the Proposed Solid Waste
Disposal Facility Criteria—RIA—Auguit
1991.
C. Other References
(1) U.S. EPA, OSWER. Report to Congress,
Solid Waste Disposal in the United States.
EPA/530-SW-88-011B. October 1988.
(2) U.S. EPA, OSW, Survey of Solid Waste
(Municipal) Landfill Facilities, August 1088,
(3) US. EPA, OSWER, The Solid Waste
Dilemma: An Agenda for Action. EPA/530-
SW-89-019, February 1889.
(4) U.S. EPA, OSWER, Decision-Makers
Guide to Solid Waste Management EPA/
530-SW-89-072, November 1988.
. (5) World Wildlife Funds The
Conservation Foundation, Getting at the
Source: Strategies for Reducing Municipal
Solid Waste. 1991.
(6) U.S. EPA, OSW, Characterization of
Products Containing Lead and Cadmium In
Municipal Solid Waste in the United States,
1970 to 2000. EPA/530-SW-B9-015, January
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Federal Register /Vol. 5g. No. 196 / Wednesday, October 9, 1991 / Rules and^Regulations
Subpart E—Ground-Water Monitoring and
Corrective Action
, Sec, •.-••.- i • . .• -..'.'•-•• .-. • .'•• ••'• ' •;'•--
258.50 Applicability.
258.51 Ground-water monitoring systems. •
258.52 [Reserved]. ., v
258.53 -Ground-water sampling and analysis
requirements^ . •'•
, 258.54 Detection monitoring program.
253.55 Assessment monitoring program.
258.56 Assessment of corrective measures.
': 258157 Selection of remedy. .• .. -•'•••
258.58 Implementatibn of the corrective
action program. • - - •
258.59 [Reserved].
Subpart F—Closure and Post-closure Care
Sec. .--. " . ' ' - ' ' :.-;V- '•• ':'" '-"-••. •
258.60 Closure criteria. , ; ; ;-'
258.61 Post-closure care requirements. '
258.62-258.69 [Reserved]'.-'• ; -' ,
Subpart G—Financial Assurance Criteria
258.70 Applicability arid effective date. :.
258.71 Financial assurance for closure.
258.72 Financial assurance for post-closure
care. :- , . -...- ,.- •-. ..' • • :, ''• '.-•,"- ••
258.73 Financial assurance for corrective
. action.
258.74 Allowable mechanisms.
Appendix I to Part 258—Constituents for
Detection Monitoring
Appendix II to Part 258—list of Hazardous
and Organic Constituents
Authority: 42 U.S.C. 6907Ca}(3), 6944(aj and
6949(c); 33 U.S.C. 1345 (d) and (e}.
Subpart A—Genera!
§ 258.1 Purpose, scope, and applicability.
(a) The purpose of this part is to
, establish minimum national criteria
under the Resource Conservation and
Recovery Act (RCRA or the Act), as
amended, for all municipal solid waste
landfill (MSWLF) units and under the
Clean Water Act, as amended, for
municipal solid waste landfills that are
used to dispose of sewage sludge. These
minimum national criteria ensure the
protection of human health and the
environment.
(b) These Criteria apply to owners
and operators of new MSWLF units,
existing MSWLE units, and lateral
.expansions, except as otherwise
specifically provided in this part; all
other solid waste disposal facilities and
practices that are not regulated under
Subtitle C of RCRA are subject to the
criteria contained in part 257 of this
chapter.
(cj These Criteria do not apply to
municipal solid waste landfill units that
do not receive waste after October'9,
1991.
(d) MSWLF units that receive waste :
after October 9,1991 but stop receiving '
waste before October 9,1993 are exempt
from all the requirements of this part
258, except the final coyer requirement
specified in § 258.60(a). The final cover
must be installed within six months of
last, receipt of wastes. Owners or '
operators of MSWLF units described in
this paragraph that fail to complete
coyer installation within this six month
period wilfEe subject to alTthe '
requirements of this part 258, unless
otherwise specified. ••..•••
(e] All MSWJLF units that .receive
waste on or sifter October 9*1993 must
comply with all requirements of this part
258 unlessotherwisespecified.
(f){l) Owners or operators of new
; MSWLF units, existing MSWLF units,
and lateral expansions that dispose of
less than twenty (20) tons rof municipal
solid waste daily, based on an annual
.. average are exempt from.subparts-D and
E of this parti so long as there is no
evidence of existing ground-water '
contamination from the MSWLF unit, .
and the MSWLF unit serves: '
[i] A community that experiences an
.artnual interruption of at least three
consecutive months of surface
transportation that prevents access to a
regional waste management facility, or
(ii) A community that has no
practicable waste management
alternative and the landfill unit is-
located in an area that annually receives
less than or equal to 25 inches of
precipitation. •"
(2) Owners or operators of new
MSWLF units, existing MSWLF units,
and lateral expansions that meet the
criteria in paragraph (f)(l)(i) or (f)(l)(ii)
of this section must place in the ;
operating record information
demonstrating this. : .
,(3) If the owner or operator of a new
MSWLF unit, existing MSWLF unit, or
lateral expansion has knowledge of
ground-water contamination resulting
from the unit that has asserted the ..
exemption in paragraph (f)(l)(i) or
(f}(l)(ii) "of this section, the owner or
operator must notify the State Director
'of such contamination and, thereafter,
comply with subparts D and E of this
part.
(g) Municipal solid waste landfill units
failing to satisfy these criteria are
considered open dumps for purposes of
State solid waste management planning
under RCRA.
(h) Municipal solid waste landfill
units failing to satisfy these criteria
constitute open dumps, which are
.prohibited under section 4005 of RCRA.
4 (i) Municipal solid waste landfill units
containing sewage sludge and failing to
satisfy these Criteria violate sections
309 and 405(e) off the Clean Water Act.
(j) The effective date of this part is
October 9,1993, except subpart G of this
part 258 is effective April 9,1994.
§258.2 Definitions. . .-•'.,„'
Uhles.s'otherwise noted, all terms ;, ,-.
.•contained in^this^part are defined-by '.
^ thek plain meaning. This section - .--.
contains definitions for terms that :
appear throughout this" part; additipnal
definitions appear in the specific;
sections to which they apply. ,, ,
.Active life'meansithe period of, ' -,
operation beginning with the initial
receipt of solid waste arid ending at
completion of closure activities in
accordance with § 258.60 of this part.
Active portion means that part-'of-a
facility or unit that has received or is
receiving wastes and that has not been.
.closed in accordance with § 258.60 of
-".•this.part,' ;,. f'. -.'."..:'.. ''' ,, .
Aqiiifer means a.geological formation,.
group of formations,1 or portori of a ;..
formation capable of yielding significant
'quantities of jground water to wells or
:• springs. -
.'.-'•• Commercial solid waste means all ,
types of solid waste generated by stores,;
offices, restaurants; warehouses, and
other nonmanufacturing activities,
excluding residential and industrial
wastes. , ' '"•''-'-'
• Director of an approved State means
the chief adniinistrative officer of a
State agency responsible for ."• •'"-•'
implementing the State municipal solid
waste permit program or other system of
- prior approval that is deemed to be
[adequate by EPA under regulations'
•published pursuant to sections 2002 and •
4005 of RCRA.
Existing MSWLF unit means any ;
municipal solid waste landfill unit that
is receiving solid waste as of the
effective date of this part (October 9,
; 1993). Waste placement in existing units
must be consistent with past operating
practices or modified practices to ensure
good management. • • -
Facility means all contiguous land
". and structures, other appurtenances,
and improvements on the land used for
• the disposal of solid waste. ' ':
Ground water means water below the .
land surface in ia zone of saturation.
Household waste' means any solid
waste (including garbage, trash, and
sanitary waste in septic tanks) derived
from liouseholds (including single and .
multiple residences, hotels and motels, :
bunkhouses, ranger stations, crew
.. quarters, campgrounds, picnic grounds,
and day-use recreation areas).
Industrial solid waste means solid
waste generated by manufacturing or.
industrial processes that is not a
hazardous waste regulated under
subtitle C of RCRA. Such waste may
include, but is not limited to, waste •
resulting from the following
manufacturing processes: Electric power
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51018 Federal Register / VoL 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
generation; fertilizer/agricultural
chemicals; food and related products/
by-products; inorganic chemicals; iron
and steel manufacturing; leather and
leather products; nonferrous metals
manufacturing/foundries; organic
chemicals; plastics and resins
manufacturing; pulp and paper industry;
rubber and miscellaneous plastic
products; stone, glass, clay, and
concrete products; textile
manufacturing; transportation
equipment; and water treatment. This
term does not include mining waste or
oil and gas waste.
Lateral expansion means a horizontal
expansion of the waste boundaries of an
existing MSWLF unit.
Lcachate means a liquid that has
passed through or emerged from solid
waste and contains soluble, suspended,
or misdble materials removed from such
waste.
Municipal solid waste landfill unit
means a discrete area of land or an
excavation that receives household
waste, and that is not a land application
unit, surface impoundment, injection
well, or waste pile, as those terms are
defined under § 257.2. A MSWLF unit
also may receive other types of RCRA
subtitle D wastes, such as commercial
solid waste, nonhazardous sludge, small
quantity generator waste and industrial
solid waste. Such a landfill may be
publicly or privately owned. A MSWLF
unit may be a new MSWLF unit, an
existing MSWLF unit or a lateral
expansion.
New MSWLF unit means any
municipal solid waste landfill unit that
has not received waste prior to the
effective date of this part (October 9,
1993).
Open burning means the combustion
of solid waste without:
(1) Control of combustion ait to
maintain adequate temperature for
efficient combustion,
(2) Containment of the combustion
reaction in an enclosed device to
provide sufficient residence time and
mixing for complete combustion, and
(3) Control of the emission of the
combustion products.
Operator means the person(s)
responsible for the overall operation of a
facility or part of a facility.
Owmrmeans the person(s) who owns
a facility or part of a facility.
Run-off'means any rainwater,
Icachate, or other liquid that drains over
land from any part of 6. facility.
Run-on means any rainwater,
leachate, or other liquid that drains over
land onto any part of a facility.
Saturated zone means that part of the
earth's crust In which all voids are filled
with water.
Sludge means any solid, semi-solid, or
liquid waste generated from a
municipal, commercial, or industrial •
wastewater treatment plant, water
supply treatment plant, or air pollution
control facility exclusive of the treated
effluent from a wastewater treatment
plant.
Solid waste means any garbage, or
refuse, sludge from a wastewater
treatment plant, water supply treatment
plant, or ah- pollution control facility
and other discarded material, including
solid, liquid, semi-solid, or contained
gaseous material resulting from
industrial, commercial, mining, and
agricultural operations, and from
community activities, but does not
include solid or dissolved materials in
domestic sewage, or solid or dissolved
materials in irrigation return flows or
industrial discharges that are point
sources subject to permit under 33
U.S.C. 1342, or source, special nuclear,
or by-product material as defined by the
Atomic Energy Act of 1954, as amended
(68 Stat. 923).
State means any of the several States,
the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa,
and the Commonwealth of the Northern
Mariana Islands.
State Director means the chief
administrative officer of the State
agency responsible for implementing the
State municipal solid waste permit
program or other system of prior
approval.
Uppermost aquifer means the geologic
formation nearest the natural ground
surface that is an aquifer, as well as,
lower aquifers that are hydraulically
interconnected with this aquifer within
the facility's property boundary.
Waste management unit boundary
means a vertical surface located at the
hydraulically downgradient limit of the
unit. This vertical surface extends down
into the uppermost aquifer.
§ 258.3 Consideration of other Federal
laws.
The owner or operator of a municipal
solid waste landfill unit must comply
with any other applicable Federal rules,
laws, regulations, or other requirements.
§§258.4-258.9 [Reserved]
Subpart B—Location Restrictions
§253.10 Airport safety.
[a) Owners or operators of new
MSWLF units, existing MSWLF units,
and lateral expansions that are located
within 10,000 feet (3,048 meters) of any
airport runway end used by turbojet
aircraft or within 5,000 feet (1,524
meters) of any airport runway end used
by only piston-type aircraft must
demonstrate that the units are designed
and operated so that the MSWLF unit
does not pose a bird hazard to aircraft.
(b) Owners or operators proposing to
site new MSWLF units and lateral
expansions within a five-mile radius of
any airport runway end used by turbojet
or piston-type aircraft must notify the
affected airport and the Federal
Aviation Administration (FAA).
(c) The owner or operator must place
the demonstration in paragraph (a) of
this section in the operating record and
notify the State Director that it has been
placed in the operating record. "
(d) For purposes of this section:
(1) Airport means public-use airport
open to the public without prior
permission and without restrictions
within the physical capacities of
available facilities.
(2) Bird hazard means an increase in
the likelihood of bird/aircraft collisions
that may cause damage to the aircraft or
injury to its occupants.
§258.11 Floodplalns.
(a) Owners or operators of new
MSWLF units, existing MSWLF units,
and lateral expansions located in 100-
year floodplains must demonstrate that
the unit will not restrict the flow of the
100-year flood, reduce the temporary
water storage capacity of the floodplain,
or result in washout of solid waste so as
to pose a hazard to human health and
the environment. The owner or operator
must place the demonstration in the
operating record and notify the State
Director that it has been placed in the
operating record.
(b) For purposes of this section:
(1) Floodplain means the lowland and
relatively flat areas adjoining inland and
coastal waters, including flood-prone
areas of offshore islands, that are
inundated by the 100-year flood.
(2) 100-year flood means a flood that
has a 1-percent or greater chance of
recurring in any given year or a flood of
a magnitude equalled or exceeded once
hi 100 years on the average over a
significantly long period.
(3) Washout means the carrying away
of solid waste by waters of the base
flood.
§258.12 Wetlands.
(a) New MSWLF units and lateral
expansions shall not be located in
wetlands, unless the owner or operator
can make the following demonstrations
to the Director of an approved State:
(1) Where applicable under section
404 of the Clean Water Act or applicable
State wetlands laws, the presumption
that practicable alternative to the
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Federal Register/ Vol. 56. No. 196 /Wednesday] October 9, 1991 / Rules and Regulations 51019
proposed landfill is available which
does not involve wetlands is clearly
rebutted;
(2) The construction and operation of
the MSWLF unit will not:
(i) Cause or contribute to violations of
any applicable State water quality
standard,
(ii) Violate any applicable toxic
effluent standard or prohibition under
Section 307 of the Clean Water Act,
(iii) Jeopardize the continued •
existence of endangered or threatened
species or result in the destruction or
adverse modification of a critical
habitat, protected under the Endangered
Species Act of 1973, and
(iv) Violate any requirement under the
Marine Protection, Research, and
Sanctuaries Act of 1972 for the
protection of a marine sanctuary;
(3) The MSWLF unit will not cause or
contribute to significant degradation of
wetlands. The owner or operator must
demonstrate the integrity of the MSWLF
unit and its ability to protect ecological
resources by addressing the following
factors:
(i) Erosion, stability, and migration
potential of native wetland soils, muds
and deposits used to support the
MSWLF unit;
(ii) Erosion, stability, and migration
potential of dredged and fill materials
used to support the MSWLF unit;
(iii) The volume and chemical nature
of the waste managed in the MSWLF
unit;
(iv) Impacts on fish, wildlife, and ;
other aquatic resources and their habitat
from release of the solid waste;
(v) The potential effects of
catastrophic release of waste to the
wetland and the resulting impacts on the
environment; and
(vi) Any additional factors, as
necessary, to demonstrate that
ecological resources in the wetland are
sufficiently protected.
(4) To the extent required under
section 404 of the Clean Water Act or
applicable State wetlands laws, steps
have been taken to attempt to achieve
no net loss of wetlands (as defined by
acreage and function) by first avoiding
impacts to wetlands to the maximum
extent practicable as required by
paragraph (a)(l) of this section, then
minimizing unavoidable impacts to the
maximum extent practicable, and finally
offsetting remaining unavoidable
wetland impacts through all appropriate
and practicable compensatory
mitigation actions (e.g., restoration of
existing degraded wetlands or creation
of man-made wetlands); and •
(5) Sufficient information is available
to make a reasonable determination
vith respect to these demonstrations.
(b) For purposes of this section,
wetlands means those areas that are
defined in 40 CFR 232.2~(r).
§ 258.13 Fault areas.
(a) New MSWLF units and lateral
expansions shall not be located within
200 feet (60 meters) of a fault that has
had displacement in Holocene time
unless the owner or operator
demonstrates to the Director of an
approved-State that an alternative
setback distance of less than 200 feet (60
meters) will prevent damage to the
structural integrity of the MSWLF unit
arid will be protective of human health
. and the environment.
(b) For the purposes of this section:
(l) Fault means a fracture or a zone of
fractures in any material along which
strata on one 'side have been displaced
with respect to that on the other side:
(2) Displacement means the relative
movement of any two sides: of a fault
measured in any direction. .-'...'
(3) Holocene means the most recent
epoch of the Quaternary period,
extending from the end of the
Pleistocene Epoch to the present.^
§253.14 Seismic impact zones.
(a) New MSWLF units and lateral
expansions shall not be located in
seismic impact zones, unless the owner
or operator demonstrates to the Director
of an approved State/Tribe that all
containment structures, including liners,
leachate collection systems, and surface
water control systems, are designed to
resist the maximum horizontal
acceleration in lithified earth material
for the site. The owner or operator must
place the demonstration in the operating
record and notify the State Director that
it has been placed in the operating
record.
(b) For the purposes of this section:
(l) Seismic impact zone means an
area with a ten percent or greater
probability that the maximum horizontal
acceleration in lithified earth material,
expressed as a percentage of the earth's '
gravitational pull paragraph (g) of this
section, will exceed O.lOg in 250 years.
(2) Maximum horizontal acceleration
in lithified earth material means the
maximum expected horizontal
acceleration depicted on a seismic
hazard map, with a 90 percent or greater
probability that the acceleration will not
be exceeded in 250 years, or the
maximum expected horizontal
acceleration based on a site-specific
seismic risk assessment
(3) Lithified earth material means all
rock,,including all naturally occurring
and naturally formed aggregates or
masses t>f minerals or small particles of -
older rock that formed by crystallization
of magma or by induration of loose
sediments. This term does not include
man-made materials, such as fill,
concrete, and asphalt, or unconsolidated
earth materials, soil, or regolith lying at
or near the earth surface.
§253.15 Unstable areas.
(a) Owners or operators of new
MSWLF units, existing MSWLF units,
and lateral expansions located in an
unstable area must demonstrate that
engineering measures have been
incorporated into the MSWLF unit's
design to ensure that the integrity of the
structural components of the MSWLF
unit will not be disrupted. The owner or
operator must place the demonstration
in the operating record and notify the
State Director that it has been placed in
the operating record. The owner or
operator must consider the folio whig
factors, at a minimum, when
determining whether an area is
unstable:
(1) On-site or local soil conditions that
may result in significant differential
settling;
(2) On-site or local geologic or
geomorphologic features; and
(3) On-site or local human-made
features or events (both surface and
subsurface).
(b) For purposes of this section:
(1) Unstable area means a location
that is susceptible to natural or human-
induced events or forces capable of
impairing the integrity of some or all of
the landfill structural components
responsible for preventing releases from
a landfill. Unstable areas can include
poor foundation conditions, areas
susceptible to mass movements, and
Karst terranes.
(2) Structural components means
liners, leachate collection systems, final
covers, run-on/run-off systems, and any
other component used in the
construction and operation of the
MSWLF-that is necessary for protection
of human health and the environment.
(3) Poor foundation conditions means
those areas where features exist which
indicate that a natural or man-induced
event may result in inadequate
foundation support for the structural
components of an MSWLF unit.
(4) Areas susceptible to mass
movement means those areas of
influence (i.e., areas characterized as
having an active or substantial
possibility of mass movement) where
the movement of earth material at,
beneath, or adjacent to the MSWLF unit,
because of natural or manrinduced
events, results in-the downslope
transport of soil and rock material by
means of gravitational influence. Areas
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51020 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rtues and Regulations
of mass movement include, but are not
limited to, landslides, avalanches, debris
slides and flows, soil fluction, block
sliding, and rock fall.
(5) Karst terrenes means areas where
karst topography, with its characteristic
surface and subterranean features, is
developed as the result of dissolution of
limestone, dolomite, or other soluble
rock. Characteristic physiographic
features present in karst terranes
include, but are not limited to, sinkholes,
sinking streams, caves, large springs,
and blind valleys,
§ 258.16 Closure of existing municipal
•olid waste landfill units.
(a) Existing MSWLF units that cannot
moke the demonstration specified in
§ 258.10(a), pertaining to airports,
§ 258.11(a), pertaining to floodplaihs, or
§ 258,15(a), pertaining to unstable areas,
must close by October 9,1996, in
accordance with § 258,60 of this part
and conduct post-closure activities in
accordance with § 258.61 of this part.
(b) The deadline for closure required
by paragraph (a) of this section may be
extended up to two years if the owner or
operator demonstrates to the Director of
an approved State that:
(1) There is no available alternative
disposal capacity;
(2) There is no immediate threat to
human health and the environment
Note to Subpart B: Owners or operators of
MSWLF* should be aware that a State in
which their landfill is located or is to be
located, may have adopted a state wellhead
protection program in accordance with
section 1428 of the Safe Drinking Water Act.
Such state wellhead protection programs may
Impose additional requirements on owners or
operators of MSWLFs than those set forth in
this part.
1258.17-258.19 [Reserved].
Subpart C—Operating Criteria
§258.20 Procedures for excluding the
receipt of hazardous waste.
(a) Owners or operators of all MSWLF
units must implement a program at the
facility for detecting and preventing the
disposal of regulated hazardous wastes
as defined in part 261 of this chapter and
polychlorinated biphenyls (PCS) wastes
as defined in part 761 of this chapter.
This program must include, at a
minimum:
(1) Random inspections of incoming
loads unless the owner or operator takes
other steps to ensure that incoming
loads do not contain regulated
hazardous wastes or PCB wastes;
(2) Records of any inspections;
(3) Training of facility personnel to
recognize regulated hazardous waste
and PCB wastes; and
(4) Notification of State Director of
authorized States under Subtitle C of
RCRA or the EPA Regional
Administrator if in an unauthorized
State if a regulated hazardous waste or
PCB waste is discovered at the facility.
(b) For purposes of this section,
regulated hazardous waste means a
solid waste that is a hazardous waste, '
as defined hi 40 CFR 261.3, that is not
excluded from regulation as a hazardous
waste under 40 CFR 261.4(b) or was not
generated by a conditionally exempt
small quantity generator as defined hi
§ 261.5 of this chapter.
§ 258.21 Cover material requirements.
(a) Except as provided in paragraph
(b) of this section, the owners or
operators of all MSWLF units must
cover disposed solid waste with six
inches of earthen material at the end of
each operating day, or at more frequent
intervals if necessary, to control disease
vectors, fires, odors, blowing litter, and
scavenging.
(b) Alternative materials of an
alternative thickness (other than at least
six niches of earthen material) may be
approved by the Director of an approved
State if the owner or operator
demonstrates that the alternative
material and thickness control disease
vectors, fires, odors, blowing litter, and
scavenging without presenting a threat
to human health and the environment.
(c) The Director of an approved State
may grant a temporary waiver from the
requirement of paragraph (a) and (b) of
this section if the owner or operator
demonstrates that there are extreme
seasonal climatic conditions that make
meeting such requirements impractical.
§258.22 Disease vector control.
(a) Owners or operators of all MSWLF
units must prevent or control on-site
populations of disease vectors using
techniques appropriate for the
protection of human health and the
environment.
(b) For purposes of this section,
disease vectors means any rodents,
flies, mosquitoes, or other animals,
including insects, capable of
transmitting disease to humans.
§ 258.23 Explosive gases control.
(a) Owners or operators of all MSWLF
units must ensure that:
[1] The concentration of methane gas
generated by the facility does not
exceed 25 percent of the lower explosive.
limit for methane in facility structures
(excluding gas control or recovery
system components); and
(2) The concentration of methane gas
does not exceed the lower explosive
limit for methane at the facility property
boundary.
(b) Owners or operators of all MSWLF
units must implement a routine methane
monitoring program to ensure that the
standards of paragraph (a) of this
section are met.
(1) The type and frequency of
monitoring must be determined based .
on the following factors:
(i) Soil conditions;
(ii) The hydrogeologic conditions
surrounding the facility;
(iii) The hydraulic conditions
surrounding the facility; and
(iv) The location of facility structures
and property boundaries.
(2) The minimum frequency of
monitoring shall be quarterly.
(c) If methane gas levels exceeding
the limits specified in paragraph (a) of
this section are detected/the owner or
operator must:
(1) Immediately take all necessary
steps to ensure protection of human
health and notify the State Director;
(2) Within seven days of detection,
place in the operating record the
methane gas levels detected and a
description of the steps taken to protect
human health; and
(3) Within 60 days of detection,
implement a remediation plan for the
methane gas releases, place a copy of
the plan in the operating record, and
notify the State Director that the plan
has been implemented. The plan shall
describe the nature and extent of the
problem and the proposed remedy.
(4) The Director of an approved State
may establish alternative schedules for
demonstrating compliance with
paragraphs (c) (2) and (3) of this section.
(d) For purposes of this section, lower
explosive limit means the lowest
percent by volume of a mixture of
explosive gases in ah- that will
propagate a flame at 25°C and
atmospheric pressure.
§258.24 Air criteria.
(a) Owners or operators of all
MSWLFs must ensure that the units not
violate any applicable requirements
developed under a State Implementation,'
Plan (SIP) approved or promulgated by
the Administrator pursuant to section
110 of the Clean Air Act, as amended.
(b) Open burning of solid waste,
except for the infrequent burning of
agricultural wastes, silvicultural wastes,
landclearing debris, diseased trees, or
debris from emergency cleanup
operations, is prohibited at all
units: - '. . • ' • .'•.'••,'••,.••
-------
J - ' ,- ' - - . ., " '
§259.25 Access requirements.
Owners or operators of all MSWLF
units must control public access and
prevent unauthorized vehicular traffic
and illegal dumping of wastes by using
artificial barriers, natural barriers, or
both, as appropriate to, protect human
health and the environment.
§ 258.25 Run-on/run-off control systems.
(a) Owners or operatprs of all MSWLF
units must design, construct, and
maintain: /
(1) A run-on control system to prevent
flow onto the active portion of the
landfill during the peak discharge from a
25-year storm;
(2) A run-off control system from the
active portion of the landfill to collect
and control at least the water volume
, resulting from a 24-hour, 25-year storm.
(b) Run-off from the active portion of
the landfill unit must be handled in
accordance with § 258.27(a) of this part
§258.27 Surface water requirements.
MSWLF units shall not:
(a) Cause a discharge of pollutants
into waters of the United States,
including wetlands, that violates any
requirements of the Clean Water Act,
including, but not limited to, the
National Pollutant Discharge
Elimination System (NPDES)
requirements, pursuant to section 402.
{b) Cause the discharge of a nonpoint
source of pollution to waters of the :
United States, including wetlands, that
violates any requirement of an area-
wide or State-wide water quality
management plan that has been
approved under section 208 or 319 of the
Clean Water Act, as amended.
§258.28 Liquids restrictions.
(a) Bulk or noncontainerized liquid
waste may not be placed in MSWLF
units unless:
(1) The waste is household waste
other than septic waste; or
(2) The waste is leachate or gas
condensate derived from the MSWLF
unit and the MSWLF unit, whether it is a
new or existing MS WLF, or lateral
expansion, is designed with a composite
liner and leachate collection system as
described in § 258.40(a)[2) of this part
The owner or operator must place the
demonstration in the operating record -
and notify the State Director that it has
been placed in the operating record.
[b] Containers holding-liquid waste
may not be placed in a MSWLF unit ;
unless:- - • '; >. .-.•-: -.-.•.,--;:.--• • „ ,:'., ... . ,
(1) The container is a small containpr
similar in size to that normally found hi
household waste;;.
,. KITte container is designed to hold
liquids for use other than storage; or
(3) The waste is household waste.
(c) For purposes of this section: •
(1) Liquidwastemeans any waste
material that jg, determined tb: contain
"free liquids"!s defined by Method 9095
(Paint Filter Liquids Test), as described
in "Test Methods for Evaluating Solid
Wastes, Physical/Chemical Methods"
(EPA Pub. No. SW-846).
(2) Gas cotidensate means the liquid
generated as a result of gas recovery
processes] at the MSWLF unit.
Subpart D—Design Criteria
§258.29 Recordkeeping requirements.
(a) The owner or operator of a
MSWLF unit must record and retain
near the facility in an operating record
or in an alternative location approved
by the Director of an approved State the
following information as it becomes
available: .
(1) Any location restriction -
demonstration required under subpart B
of this part;
(2) Inspection records, training'
procedures, and notification procedures
required in § 258.20 of this part;
(3) Gas monitoring results from
monitoring and any remediation plans
required by § 258.23 of this part;
(4) Any MSWLF unit design
documentation for placement of
leachate or gas condensate, in a MSWLF
unit as required under | 258.28(a)f2) of
this part; ,
(5) Any demonstration, certification,
finding, monitoring, testing, or analytical
data required by subpart E of this part:
(6) Closure and post-closure care
plans and any monitoring, testing, or
analytical data as required by §§ 25860
and 258.61 of this part; and
(7) Any cost estimates and financial
assurance documentation required by
subpart G of this part.
(8) Any information demonstrating
compliance with small community
exemption as required by § 258.1 (f)(2j.
[b) The owner/operator must notify
the State Director when the documents
from paragraph (a) of this section^have
been placed or added to the operating
record, and all information contained in
the operating record must be furnished
upon request to the State Director or be
made available at all reasonable times
for inspection by the State Director.
(c) The Director of an approved State ,
can set alternative schedules .for .
recordkeeping and notification
requirements as specified in paragraphs
(a) and (b) of this section, except for the
notification requirements in § 258.10fb)
and § 258.55(g)(lJCiiij.
§ 258.40 Design criteria.
[a] New MSWLF units and lateral
expansions shall be constructed:
(1) In accordance with a design
approved by the Director of an approved
State or as specified in § 258.40[e) for
unapproved States. The design must
ensure that the concentration values
listed in Table 1 of this section will not
be exceeded in the uppermost aquifer at
the relevant point of compliance, as
specified by the Director of an approved
State under paragraph (d) of this
section, or
(2) With a composite liner, as defined
in paragraph {b) of .this section and a
leachate collection system that is
designed and constructed to maintain
less than a 30-cm depth of leachate over
the liner.
(b) For purposes of this section,
composite liner means a system
consisting of two components; the upper
component must consist of a minimum
30-mil flexible membrane liner (FML),
and the lower component must consist
of at least a two-foot layer of compacted
soil with a hydraulic conductivity of no
more than lx 10"7 cm/sec. FML
components consisting of high density
polyethylene (HOPE) shall be at least
60-mil thick. The FML component must
be installed in direct and uniform
contact with the compacted soil
component. "
(c) When approving a design that
complies with paragraph (a)(l) of this
section, the Director of an approved
State shall consider at least the
following factors:
(1) The hydrogeologic characteristics
of the facility and surrounding land;
(2] The climatic factors of the area; ;
and
(3) The volume and physical and
chemical characteristics of the leachate.
(dj The relevant point of compliance
specified by the Director of an approved
State shall be no more than 150 meters
from the waste management unit
boundary and shall be located on land
owned by the owner of the MSWLF unit.
In determining the relevant point of
compliance State Director shall consider
at least the following .factors: ,
(1) The hydrogeologic characteristics
of the facility and surrounding land;
(2) The volume and physical and
chemical characteristics of the leachate;
(3) The quantity, quality, and
direction, of flow of graund water;
{4) The proximity and withdrawal rate
of the,ground-water users;
-------
(5) The availability of alternative
drinking water supplies;
(6) The existing quality of the ground
water, Including other sources of
contamination and their cumulative
impacts on the ground water, and
whether the ground water is currently
used or reasonably expected to be used
for drinking water;
(7) Public health, safety, and welfare
effects; and
(8) Practicable capability of the owner
or operator.
(e) If EPA does not promulgate a rule
establishing the procedures and
requirements for State compliance with
RCRA section 400S(c)(l)(B) by October
fl, 1903, owners and operators in
unapproved States may utilize a design
meeting the performance standard in
| 258.40(a)(l) if the following conditions
are met: .
(1) The State determines the design
meets the performance standard in
§ 258,40{a)(l);
(2) The State petitions EPA to review
its determination; and
(3) EPA approves the State
determination or does not disapprove
the determination within 30 days.
Note to aubpart D: 40 CFR part 239 is
reserved to establish the procedures and
requirements for State compliance with
RCRA section 4005(c)(l]tB).
TABLE 1
Cherrical
Arwmte
.
CajbontiUaeWofide.
CJvowJum (bexmvalenl) .—
2,4-DleNorophoncxy «cetfc add
1,4-OScWorobanzene....,
1,2-Qichio«>athan8
1,1 -Oichloroathytooe
Endrfn
Fkxxkte...,, .,
Toxtpbene. <
1,1,1-TricWonxnothana
2,4,5.Trichtofophenoxy acatic add.,
•Vinyl Chtorida... -
MCL
(ma/0
0.05
1.0
0.005
0.01
0.005
0.05
0.1
0.075
0.005
0.007
0.0002
4
0.004
0.05
0.002
0.1
0
0.01
0.05
0.005
0.2
0.005
0.01
0.002
Subpart E—Ground-Water Monitoring
and Corrective Action
§258.50 Applicability.
(a) The requirements in this part apply
to MSWLF units, except as provided in
paragraph (b) of this section.
(b) Ground-water monitoring
requirements under § 258.51 through
§ 258.55 of this part may be suspended
by the Director of an approved State for
a MSWLF unit if the owner or operator
can demonstrate that there is no
potential for migration of hazardous
constituents from that MSWLF unit to
the uppermost aquifer (as defined in
| 258.2) during the active life of the unit
and the post-closure care period. This
demonstration must be certified by a
qualified ground-water scientist and
approved by the Director of an approved
State, and must be based upon:
(1) Site-specific field collected
measurements, sampling, and analysis
of physical, chemical, and biological
processes affecting contaminant fate
and transport, and
(2) Contaminant fate and transport
predictions that maximize contaminant
migration and consider impacts on
human health and environment.
(c) Owners and operators of MSWLF
units must comply with the'ground-
water monitoring requirements of this
part according to the following schedule
unless an alternative schedule is
specified under paragraph (d) of this
section: ,
(1) Existing MSWLF units and lateral
expansions less than one mile from a
drinking water intake (surface or
subsurface) must be in compliance with
the ground-water monitoring
requirements specified in § § 258.51-
258.55 by October 9,1996;
(2) Existing MSWLF units and lateral
expansions greater than one mile but
less than two miles from a drinking
water intake (surface or subsurface)
must be in compliance with the ground-
water monitoring requirements specified
in §§ 258.51-258.55 by October 9,1995;
(3) Existing MSWLF units and lateral
expansions greater than two miles from
a drinking water intake (surface or
subsurface) must be in compliance with
the ground-water monitoring
requirements specified in §§ 258.51-
258.55 by October 9,1996.
(4) New MSWLF units must be in
compliance with the ground-water
monitoring requirements specified in
§§ 258.51-258.55 before waste can be
placed in the unit.
(d) The Director of an approved State
may specify an alternative schedule for
the owners or operators of existing
" MSWLF units and lateral expansions to
comply with the ground-water
monitoring requirements specified in
§§ 258.51-258.55. This schedule must
ensure .that 50 percent of all existing
MSWLF units are hi compliance by
October 9,1994 and all existing MSWLF
units are in compliance by October 9,
1996. In setting the compliance schedule,
the Director of an approved State must
consider potential risks posed by the
unit to human health and the t
environment. The following factors
should be considered in determining
potential risk:
(1) Proximity of human and
environmental receptors;
(2) Design of the MSWLF unit;
(3) Age of the MSWLF unit;
(4) The size of the MSWLF unit; and
(5) Types and quantities of wastes
disposed including sewage sludge; and
(6) Resource value of the underlying
aquifer, including:
(i) Current and future uses;
(ii) Proximity and withdrawal rate of
users; and \_
(iii) Ground-water quality and
quantity.
(e) Once established at a MSWLF
unit, ground-water monitoring shall be
conducted throughout the active life and
post-closure care period of that MSWLF
unit as specified hi § 258.61.
(f) For the purposes of this subpart, a
qualified ground-water scientist is a
scientist or engineer who has received a
baccalaureate or post-graduate degree
in the natural sciences or engineering
and has sufficient training and
experience in groundwater hydrology
and related fields as may be
demonstrated by State registration,
professional Certifications, or.
completion of accredited university
programs that enable that individual to
make sound professional judgements
regarding ground-water monitoring,
contaminant fate and transport, and
corrective-action.
(g) The Director of an approved State
may establish alternative schedules for
demonstrating compliance with
§ 258.51(d)(2), pertaining to notification
of placement of certification in operating
record; § 258.54(c)(l), pertaining to .
notification that statistically significant
increase (SSI) notice is in operating
record; § 258.54(c) (2) and (3), pertaining
to an assessment monitoring program;.
§ 258.55(b), pertaining to sampling and
analyzing Appendix II constituents;
§ 258.55(d)(l), pertaining to placement of
notice (Appendix II constituents
detected) in record and notification of
notice in record; i 258.55(d)(2),
pertaining to sampling for appendix I
'and II to this part; § 258.55(g), pertaining
to notification (and placement of notice
in record) of SSI above ground-water
protection standard; §§ 258.55(g)(l)(iv)
and 258.56(a), pertaining to assessment^
of corrective measures; § 258.57(a), ,
pertaining to selection of remedy and
notification of placement in record;
§ 258.5#(c}(4), pertaining to notification
of placement in record (alternative
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Federal Register ./• Vol. 56, No. 196 /Wednesday, October 9,1991 / Rules and Regulations 51023
corrective;action measures); and ."-..-..
§ 258.58(f), pertaining to-notification of
placement in record (certification of
remedy completed].
§258.51 Ground-water monitoring
.systems. . . ... ',; ' ; ' . .,....' •.'-•' -
(a) A ground-water monitoring system
must be installed that consists of a
sufficient number of wells, installed at
appropriate locations and depths, to.
yield ground-water samples from the '.'
'uppermost aquifer (as defined in § 258.2)
that: : . "'••;:: / ' "
(1) Represent the quality of '
background ground water that'has not
been affected by leakage from a unit. A
determination of background quality
may include sampling of wells that are
not hydraulically upgradient of thes -
waste management area where:
(i) Hydrogeologic conditions do not
allow the owner, or operator to
determine what wells are hydraulically
upgradient; or
,{ii) Sampling at other wells will . ;.
provide an indication of background
ground-water quality,that is, as ,
representative of more representative
than that provided by the upgradient
wells; and
(2) Represent the quality; of ground
water passing the relevant point of
compliance specified by Director of an
approved State under § 258.40(d) or at
the waste management unit boundary in
unapproved States. The downgradient
monitoring system must be installed at
the relevant point of compliance
specified by the Director of an approved
State under § 258.40(d) or at the waste
management unit boundary in
unapproved States that ensures
detection of ground-water
contamination in the uppermost aquifer.
When physical ob'stacles preclude
installation of ground-water monitoring
wells at the relevant point of compliance
at existing units, the down-gradient
monitoring system may be installed at
the closest practicable distance
hydraulically down-gradient from the
relevant point of compliance specified"
by the Director of an approved State
under § 258.40 that ensure detection of
groundwater contamination in the
uppermost aquifer. •
(b) The Director of an approved State
may approve a multiunit ground-water
monitoring system instead of separate
ground-water monitoring systems for
each MSWLF unit when the facility has
several units, provided the multi-unit
ground-water monitoring system meets
the requirement of § 258.5l(a) and will
be as protective of human health and
the environment as individual
monitoring.systems for each MSWLF
unit, based on the following factors:
(1) Number, spacing, and orientation
of the, IMSW£F,units; .'.--
(2) Hydrpgeologic setting; ,:^ ,..!"..
.(3) Site history; -"?^v-"'
(4) Engineering design of the MSWLF
units, and h ..^i. , .-,;••
(5) Type of jvaste accepted at the
MSWLF unitsV;
(c) Monitoring wells must be cased in
a manner that maintains the mtegrity of
;the monitoring well bore hole. This
casing must be screened or perforated
and packed with gravel or sand, where
, necessary, to enable collection of
ground-water samples. The annular
space (i.e., the space between the bore
hole and well casing) above the
sampling depth must be sealed to
: prevent contamination of samples and/
the ground water.
(1) The owner or operator must notify
the State Director that the design,
installation, development, and
decommission of any monitoring wells,
piezometers and other measurement,
sampling, and analytical devices -,''..
documentation has been placed hi the
operating record; and •' -
(2) The monitoring wells, piezometers,
and other measurement, sampling, and
analyticaldevices must be operated and
maintained so that they perform to
design specifications throughout the life
of the monitoring program.
(d) The number, spacing, and depths
of monitoring systems shall be:
(1) Determined based upon site-
specific technical information that must
include thorough characterization of:
(i) Aquifer thickness, ground-water
flow rate, ground-water flow direction
including seasonal and temporal
fluctuations in ground-water flow; and
(ii) Saturated and unsaturated
geologic units and fill materials •
overlying the uppermost aquifer, :
materials comprising the uppermost
aquifer, and materials comprising the
confining unit defining the lower
boundary of the uppermost aquifer;
including, but not limited to:
Thicknesses, stratigraphy, lithology,
hydraulic conductivities, porosities and
effective porosities.
' (2) Certified by a qualified ground-
water scientist or approved by the
Director of an approved State. Within 14
days of this certification, the owner or •
operator must notify the State Director
that the certification has been placed in
the operating record.
§258.52 [Reserved].
§258.53 Ground-water sampling and
analysis requirements.
(a) The ground-water monitoring
program must include consistent
sampling and analysis procedures that
are designed to ensure monitoring • '
results that provide an accurate
representation of ground-water quality
at the,background and downgradient
wells installed in compliance with
'§ 258.51(a) of this part.. The. owner or
operator must notify the State Director
that the sampling and analysis program
documentation has been placed in the
operating record and the program must
include procedures arid techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures;
(4^ Chain of custody control; and
(5) Quality assurance and quality . - ' •
control.
(b) The ground-water monitoring
program must include sampling and
analytical methods that are appropriate
for ground-water sampling and that
accurately measure hazardous ..''.",
constituents and other monitoring
parameters in ground-water samples. •
Grounds-water samples shall not be
field-filtered prior to laboratory
analysis. . . ;
(c) The sampling procedures and
frequency must .be protective of human
• health and the environment.
(d) Ground-water elevations must be
measured in each well immediately
prior to purging, each time ground water
is sampled. The owner or operator must
determine the rate-and direction of
ground-water flow each time ground
water is sampled. Ground-water -
elevations in wells which monitor the
same waste management area must be
measured within a period of time short
enough to avoid temporal variations to
ground-water flow which could preclude
accurate determination of ground-water
flow rate and direction. '
(e) The owner or operator must
• establish background ground-water
quality in a hydraulically upgradient or
background well(s) for each of the
monitoring parameters or constituents •,
required in the particular ground-water
monitoring program that applies to the
MSWLF unit, as determined underr
§ 258.54(a) or § 258.55(a) of this part.
Background ground-water quality may ;
be established at wells that.are not
located hydraulically upgradient from
the'.MSWLF unit if it meets the
requirements of § 258.51(a)(l).
(f) The number of samples collected to
establish ground-water quality data
must be consistent with the appropriate
statistical procedures determined
pursuant to paragraph (g) of this section.
The sampling procedures shall be those
specified under § 258.54(b) for detection
monitoring, § 258.55 (b) and (d) for
assessment monitoring, and § 258,56(b)
of corrective action/ •
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§3L02f Federal Register / Vol. 56, No. 196 / Wednesday* October 9, 1991 / Rules and Regulations
(g) The owner or operator must
specify in the operating record one of
the following statistical methods to be
used in evaluating ground-water
monitoring data for each hazardous
constituent. The statistical test.chpsen
shall he conducted separately for each
hazardous constituent in each well.
(!) A parametric analysis of variance
(ANOVA) followed by multiple
comparisons procedures to identify
statistically significant evidence of
contamination. The method must i
include estimation and,testing of the
contrasts between each compliance
well's mean and the background mean
levels for each constituent.
(2) An analysis of variance (ANOVA)
based on ranks followed by multiple
comparisons procedures to identify
statistically significant evidence of
contamination. The method must
include estimation and testing of the
contrasts between each compliance
well's median and the background
median levels for each constituent.
(3) A tolerance or prediction interval
procedure in which an interval for each
constituent is established from the.
distribution of the background data, and
the level of each constituent in each
compliance well is compared to the
upper tolerance or prediction limit
(4) A control chart approach that gives
control limits for each constituent.
(5) Another statistical test method
that meets the performance standards of
f 258.53{hj. The owner or operator must
place a justification for this alternative
in the operating record and notify the
State Director of the use of this
alternative test. The justification must
demonstrate that the alternative method
meets the performance standards of
§ 2S8.53(h).
(h) Any statistical method chosen
under § 258.53(g) shall comply with the
following performance standards, as
appropriate:
fl) The statistical method used to
evaluate ground-water monitoring data
shall be appropriate for the distribution
of chemical parameters or hazardous
constituents. If the distribution of the
chemical parameters or hazardous-
constituents is shown by the owner or
operator to be inappropriate for a
normal theory test, then the data should
be transformed or a distribution-free
theory test should be used. If the
distributions for the constituents differ,
more than one statistical method may be
needed.
(2) If an individual well comparison
procedure is used to compare an
individual compliance well constituent
concentration with background
constituent concentrations or a ground-
water protection standard, the test shall
be done at a Type 1 error level no less
than 0-01 for each testing period. If a
multiple comparisons procedure is used,
the Type I experiment wise error rate for
each testing period shall be no less than
0.05; however, the Type I error of no less
than 6.01 for individual well
comparisons must be maintained. This^
performance standard does not apply to
tolerance intervals, prediction intervals,
or control charts..
(3) If a control chart approach is used
to evaluate ground-water monitoring
daia, the specific type of control chart
and its associated parameter values
shall be protective of human health and
the environment. The parameters shall
be determined after considering the
number of samples in the background-
data base, the data distribution, and the
range of the concentration values for
each constituent of concern.
(4) If a tolerance interval or a
predictional interval is used to evaluate
ground-water monitoring data, the levels
of confidence and, for tolerance
intervals, the percentage of the
population that the interval must -
contain, shall be protective of human
health and the environment These
parameters shall be determined after
considering the number of samples in
the background data base, the data
distribution, and the range of the
concentration values for each "
constituent of concern.
(5) The statistical method shall
account for data below the limit of
detection with one or more statistical
procedures that are protective of human
health and the environment Any
practical quantitation limit (pql) that is
used in the statistical method shall be
the lowest concentration level that can
be reliably achieved within specified
limits of precision and accuracy during
routine laboratory operating conditions
that are available to the facility.
(6) If necessary, the statistical method
shall include procedures to control or
correct for seasonal and spatial
variability as well as temporal
correlation in the data.
(i) The owner or operator must
determine whether or not there is a
statistically significant increase over
background values for each parameter
or constituent required in the particular
ground-water monitoring program that
applies to the MSWLF unit, as
determined under § § 258.54(a) or
258.55(a) of this part
(1) In determining whether a
statistically significant increase has
occurred, the owner or operator must
compare the ground-water quality of
each parameter or constituent at each
monitoring well designated pursuant to
§ 25S.51(a)(2) to the background value of
that constituent, according to the
statistical procedures and performance
standards specified under paragraphs
(g] and (h) of this section.
(2) Within a reasonable period of time
after completing sampling and analysis, .
the owner or operator must determine
whether there has been a statistically
significant increase ovet background, at
each monitoring well.
§ 258.54 Detection monitoring program.
(a) Detection monitoring is required at
MSWLF units at all ground-water
monitoring wells defined under
§ § 258.51 (a)(l) and (a)(2) of this part. At
a minimum, a detection monitoring
program must include the monitoring for
the constituents listed in appendix I to
this part.
(1) The Director of an approved State
may delete any of the appendix I
monitoring parameters for a MSWLF
unit if it can be shown that the removed
constituents are not reasonably
expected to be in or derived from the
waste contained in the unit
(2) The Director of an approved State-
may establish an alternative list of
inorganic indicator parameters for a
MSWLF unit, in lieu of some or all of the
heavy metals [constituents 1-15 in
appendix I to this part)* if the: alternative
parameters provide a reliable indication
of inorganic releases from the MSWLF'
unit to the ground water. In determining
alternative parameters, the Director
shall consider the following factors:
(i) The types, quantities, and
concentrations of constituents in wastes
managed at the MSWLF unit;
. pi) The mobility, stability, and
persistence of waste constituents or
then- reaction products in the
unsaturated zone-beneath the MSWLF
unit;
(iii) The detectability of indicator
parameters, waste- constituents, and
reaction products in the ground wafer,
and
(iv) The concentration or values and .
coefficients of variation of monitoring
parameters or constituents in the
groundwater background.
(b) The monitoring frequency for all
constituents listed in appendix: I to this
part, or in the alternative list approved
in accordance with paragraph (a)f2) of
this section, shall be at least semiannual
during the active life of the facility
(including closure) and the post-closure
period. A minimum of four independent
samples from each well (background
and downgradient) must be collected
and analyzed for the appendix I
constituents, or the alternative list
approved in accordance with paragraph
(a}(2) of this section, during the first
-------
Federal Rester
gg Nb>> 196 / Wednesday. October. 9. Mat / Rules and Regalatic
semiannual sampling event. At least one
sample from each well (background and
downgradient), must be collected and
analyzed during subsequent semiannual,
sampling events. The Director of an
'approved State may specify an,
appropriate alternative frequency for
repeated sampling and analysis for
appendix I constituents, or the
alternative list approved in accordance
with paragraph (a}(2) of this section,
during the active life [including closure)
and the post-closure care period. The
alternative frequency during the active
life [including closure) shall be no less
than annual. The alternative frequency
shall be based on consideration of the
following factors:
(1) Lithology of the aquifer and
unsaturated zone; -•-.
(2) Hydraulic conductivity of the
:'aquifer and unsaturated zone;
• (3) Ground-water flow rates;
'[4] Minimum distance between
upgradient edge of the MSWLFuoit and
downgradient monitoring well screen
(minimum distance of travel); and'.
(5) Resource value of the aquifer.
(c) If the owner or operator '
determines, pursuant to f 258;53(gJ of "
this'part, that there is a statistically
significant increase over background for
one or more of the constituents listed to
appendix I to this part or in the : -
alternative list approved in accordance
with paragraph fa}(2} of this section, at
any monitoring well at the boundary
specified under § 258.51(a}(2), the owner
or operator: : ., , - ••
(1) Must, within 14 days of this
finding, place a notice ha the operating
record indicating which constituents
have shown, statistically significant
- changes from background levels, and .
notify the State director that this notice
was placed in the opera ting, record; and
(2) Must establish an assessment
monitoring program meeting the
requirements of f 258.55 of this part
withm 90 days except as provided for in
paragraph {c){3} of this section.
(3) The owner/operator may
demonstrate that a source other than a
MSWLFunit caused the contamination
or that the statistically significant
increase resulted from error in sampling.
analysis, statistical evaluation, of
natural variation in ground-water '
quality. A report documenting this
demonstration must be certified by a
qualified ground-water scientist or '
approved by the Director of an approved
State and be placed in the operating
record^ If a successful demonstration is
made and documented, the owner or
operator may.continue detection
monitoring as specified in this section.
If, after 90 days, a successful
demonstration is not made, the owner or
operator must initiate an; assessment ;
monitoring program as required fn
§25a55. - •;•• .. .'.:.....
§ 258.55 Assessment monRaring program.
(a) Assessment monitoring is required
whenever a statistically significant
increase over background has been
detected for one or more of the
constituents listed in the appendix i to
. this part or in the alternative li.s't
approved in accordance with
§ 258.54(a)(2).
(b) Within 90 days of triggering an
assessment monitoring program, and
annually thereafter, the owner or
operator must sample and analyze the
ground water for all constituents
identified to appendix H to this part A
minimum of one sample from each
downgradient well must be collected '
and analyzed during each sampling
event. For any constituent detected in
the downgradient wells as a result of the
complete appendix n analysis* a
minimum of four independent samples
from each well (background and
downgradient) must be collected and
analyzed to establish background for the
constituents. The Director of an. .
approved State may specify an ,.
appropriate subset of wells to be -.,
.sampled and analyzed for appendix I!
constituents during assessment
monitoring. The Director of an approved
State may delete any of the appendix II
monitoring parameters for a MSWLF
unit if it can be shown that the removed
constituents are not reasonably
expected to be in or derived from the
waste contained in the, unit
[c) The Director of an approved State
may specify an appropriate alternate
frequency for repeated sampling, and ,
analysis for the full set of appendix U
constituents required by § 258.55(b) of
this part,, during the active life (including
closure) and post-closure care of the unit
considering the following factors: •'
(1) Lithology of the aquifer and
unsaturated zone; • . - •
[2) Hydraulic conductivity of the
aquifer and unsaturated zone;
(3) Ground-water flow rates;
(4) Minimum distance between
upgradient edge of the MSWLF unit and
downgradienf monitoring welt screen
(minimum distancie of travel);
(5) Resource value of the aquifer; and
(6) Nature (fate and transport) of any
constituents detected in response to this
section. • •
, (d) After obtaining the results from the
initial or subsequent sampling events-
required in paragraph {b} of this section.
the owner or operator must:
(1) Within 14 days, place a notice; in ,
the operating record identifying the
appendix II constituents that have been*
ons 51025
detected and notify the State Director
that this noitice has been placed in the
operating record; -
(2) Within 99 days, and on at least a
semiannual basis thereafter,, resample
all wells specified by § 258.51(3),
conduct analyses for all constituents in
appendix I to this part or in the'
alternative list approved in accordance'
with § 258^4(a)f2J, and for those
constituents in appendix II to this part
that are detected in response to
paragraph (b) of this section, and record
their concentrations in the facility
operating record. At least one sample '
from each weir (background and
downgradient) must be collected and
analyzed during these sampling events.
The Director of an approved State may
specify an alternative monitoring
. frequency during the active life
(including closure) and the post-closure
period for the constituents referred to in
this paragraph. The alternative
frequency for appendix I constituents, OE
the alternative list approved in
accordance with §: 258.54{a}(2), during
the active life [including closure) shall
be no less than annuat Thealternative
frequency shaD be based on
consideration of the factors specified; in
paragraph (cj of this section?
(3) Establish background,
concentrations for any constituents
detected pursuant to paragraph (bj or
(d)(2) of this section? and
(4) Establish ground-water protectioa-
standards for all constituents detected
pursuant to paragraph (b) or (d) of this
section. The ground-water protection
standards shall be established in
accordance with paragraphs (h) OF (i) of
.this section, • ;. , • ,
(e) If tfee concentrations of all
appendix II constituents are shown to be
at or below background values, using
the statistical procedures in § 258.53{g),
for two consecutive sampling events, the
owner or opera tor must notify the State
Director of this finding and may return
to detection monitoring. ,.'-
(f) If the concentrations of any
appendix II constituents are above
background values, but all
concentrations are below the ground-
water protection standard established*
under paragraphs (h) or fi} of this
section, using the statistical procedures
in § 258.53fg), the owner or operator
mu'st continue assessment monitoring in.
accordance with this section. . .-
(g) If one or more appendix II
constituents are detected at statistically
significant levels above the ground-
water protection standard.established
under paragraphs (h) or pj of this
section in any sampling event, the •
owner or operator must.'within 14 days
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51026 Federal Register / Vol. 56, No. 196 / Wednesday, October 9. .1991 / Rules and Regulations
of this finding, place a notice in the
operating record identifying the
appendix II constituents that have
exceeded the ground-water protection
standard and notify the State Director
and all appropriate local government
officials that the notice has been placed
in the operating record. The owner or
operator also:
(l)(i) Must characterize the nature and
extent of the release by installing
additional monitoring wells as
necessary;
(ii) Must install at least one additional
monitoring well at the facility boundary
in the direction of contaminant
migration and sample this well in
accordance with § 258.55Cd}(2);
(iii) Must notify all persons who own
the land or reside on the land that
directly overlies any part of the plume of
contamination if contaminants have
migrated off-site if indicated by
sampling of wells in accordance with
§ 258.55 (g)(l); and
(iv) Must initiate an assessment of
corrective measures as required by
§ 255.56 of this part within 90 days; or
(2) May demonstrate that a source
other than a MSWLF unit caused the
contamination, or that the SSI increase
resulted from error in sampling,
analysis, statistical evaluation, or
natural variation in ground-water
quality. A report documenting this
demonstration must be certified by a
qualified gfound-water scientist or
approved by the Director of an approved
State and placed in the operating record.
If a successful demonstration is made
the owner or operator must continue
monitoring in accordance with the
assessment monitoring program
pursuant to § 258.55, and may return to
detection monitoring if the appendix II
constituents are at or below background
as specified in § 258.55(e). Until a
successful demonstration is made, the
owner or operator must comply with
§ 258.55(g) including initiating an
assessment of corrective measures.
(h) The owner or operator must
establish a ground-water protection
standard for each appendix II
constituent detected in the ground-
water. The ground-water protection
standard shall be:
(1) For constituents for which a
maximum contaminant level (MCL) has
been promulgated under section 1412 of
the Safe Drinking Water Act (codified)
under 40 CFR part 141. the MCL for that
constituent;
(2) For constituents for which MCLs
have not been promulgated, the
background concentration for the
constituent established from wells in
accordance with § 258.51(a)(l); or
(3) For constituents for which the
background level is higher than the MCL
identified under paragraph (h)(l) of this
section or health based levels identified
under § 258.55(i)(l], the background
concentration.
(i) The Director of an approved State
may establish an alternative ground-
water protection standard for
constituents for which MCLs have not
been established. These ground-water
protection standards shall be
appropriate health based levels that
satisfy the following criteria:
(1) The level is derived in a manner
consistent with Agency guidelines for
assessing the health risks of
environmental pollutants (51 FR 33992,
34006, 34014, 34028, Sept. 24,1986];
(2) The level is based on scientifically
valid studies conducted in accordance
with the Toxic Substances Control Act
Good Laboratory Practice Standards (40
CFR part 792) or equivalent;
(3) For carcinogens, the level
represents a concentration associated
with an excess lifetime cancer risk level
(due to continuous lifetime exposure)
with the lX10~4to lXlO~6range; and
(4) For systemic toxicants, the level
represents a concentration to which the
human population (including sensitive
subgroups) could be exposed to on a
daily basis that is likely to be without
appreciable risk of,deleterious effects
during a lifetime. For purposes of this
subpart, systemic toxicants include
toxic chemicals that cause effects other
than cancer or mutation.
(j) In establishing ground-water
protection standards under paragraph (i)
of this section, the Director of an
approved State may consider the •
following:
(1) Multiple contaminants in the
ground water;
. (2) Exposure threats to sensitive
environmental receptors; and
(3) Other site-specific exposure or
potential exposure to ground water.
§ 258.56 Assessment of corrective
measures.
(a) Within 90 days of finding that any
of the constituents listed in appendix II
to this part have been detected at a
statistically significant level exceeding
the ground-water protection standards
defined under § 258.55 (h) or (i) of this
part, the owner or operator must initiate
an assessment of corrective measures.
Such an assessment must be completed
within a reasonable period Of time.
(b) The owner or operator must
continue to monitor in accordance with
the assessment monitoring program as
specified in § 258.55.
(c) The assessment shall include an
analysis of the effectiveness of potential
corrective measures in meeting all of the
requirements and objectives of the
remedy as described under § 258.57,
addressing at least the following:
(1) The performance, reliability, ease
of implementation, and potential
impacts of appropriate potential
remedies, including safety impacts,
cross-media impacts, and control of
exposure to any residual contamination;
(2) The time required to begin and
complete the remedy;
(3) The costs of remedy
implementation; and ,
(4) The institutional requirements such
as State or local permit requirements or
other environmental or public health
requirements that may substantially
affect implementation of the remedy(s).
(d) The owner or operator must
discuss the results of the corrective
measures assessment, prior to the
selection of remedy, in a public meeting
with interested and affected parties.
§258.57 Selection of remedy.
(a) Based on the results of the
corrective measures assessment .
conducted under § 258.56, the owner or
operator must select a remedy that, at a
minimum, meets the standards listed in
paragraph (b) of this section. The owner
or operator must notify the State
Director, within 14 days of selecting a
remedy, a report describing the selected
remedy has been placed in the operating
record and how it meets the standards
in paragraph (b) of this section.
(b) Remedies must:
(1) Be protective of human health and
the environment;
(2) Attain the ground-water protection
standard as specified pursuant to
§§ 258.55 (h) or (i);
(3) Control the source(s) of releases so
as to reduce or eliminate, to the
maximum extent practicable, further
releases of appendix II constituents into
the environment that may pose a threat
to human health or the environment; and
(4) Comply with standards for
management of wastes as specified in
§258.58(d).
(c) In selecting a remedy that meets
the standards of § 258.57(b), the owner
or operator shall consider the following
evaluation factors: , .
(1) The long-and short-term . _-
effectiveness and protectiveness of the
potential remedy(s), along with the
degree of certainty that the remedy will
prove successful hased on consideration .
of the following: ,
(i) Magnitude of reduction of existing
risks; '
(ii) Magnitude of residual risks in
terms of likelihood of further releases
-------
196 / Wednesday, October 9, 1991 /Rules and'.Regulations 51027
*VBWi~^M-!r^inmmMasG&iisrNam'mMnasaaB3mmfBai^^m^*«~™™' 'iiurnHM^^mHTrv^vmr*™! ii • na^^m^a^.^
due to-waste remaining following
implementation of a remedy; •'..'-•
(iii) The type and degree of long-term:
management required, including
.monitoring, operation^ and maintenance;
(iv) Short-term risks that might be
posed to the community, workers, or the
environment during implementation of
such a remedy, including potential
threats to human health and the •
environment associated with
excavation, transportation, and
redisposal of containment;
(v) Time until full protection is
achieved;
(vi) Potential for exposure of humans
arid environmental receptors to
remaining wastes, considering the
potential threat to human health and the
environment associated with
excavation, transportation, redisposal,
or containment; ..''-.
(yii) Long-term reliability of the
engineering and institutional controls;
•and
fviii) Potential need for replacement of
the remedy.
(2) The effectiveness of the remedy in,
controlling the source to reduce further
releases based on consideration of the
following factors:'. -
0) The extent to \vhich containment
practices will reduce further releases; -
(ii) The extent to which treatment
technologies may be used.
(3) The ease or difficulty of
implementing a potential remedy(s)
based on consideration of the following
types of factors:
• p) Degree of difficulty associated with
constructing the technology;
pi) Expected operational reliability of
the-technologies; •
(iii) Need to coordinate with and
obtain necessary approvals and permits
from other agencies; , ,
(iv) Availability of necessary
equipment and specialists; arid
(v) Available capacity and location of
needed treatment, storage, and disposal
services.
(4) Practicable capability of the owner
or operator, including a consideration of
the technical and economic capability.
(5) The degree to which community
concerns are addressed by a potential
remedy(s).
(d) The owner or operator shall
specify as part of the selected remedy a
schedules) for initiating and completing
remedial activities. Such a schedule
must require the initiation of remedial
activities within a reasonable period of
time taking into consideration the
factors set forth in paragraphs (d) |;I}-{8}
of this section. The owner or operator
must consider the following factors in
determining the schedule of remedial
activities: .
(X) Extent and nature of .
contamination; '
(2) Practical capabilities of remedial
technologies in achieving compliance
with ground-water protection standards
established under § 258.55 (g) or (h) and
other objectives of the remedy;
(3) Availability of treatment or
disposal capacity for wastes managed
during implementation of the remedy;
(4) Desirability of utilizing
technologies that are not currently
available, but which may offer
significant advantages over already
available technologies in terms of
effectiveness, reliability, safety, or
ability to achieve remedial objectives;
(5) Potential xislcs to human health
and the environment from exposure to
contamination prior to completion of the
remedy;
(6) Resource value of the aquifer
including: - -,."''-
(i) Current and future uses;
(ii) Proximity and withdrawal rats of
users;
(iii) Ground-water quantity and
quality;
(iv) The potential damage to wildlife,
crops* vegetation, and physical
structures caused, by exposure to waste
constituent;
(v) The hydrogeologic characteristic of
the facility and surrounding land;
(vi) Ground-water removal and
treatment costs; and
(vii)-The cost and availability of
alternative water supplies. >
. (7) Practicable capability of the owner
or operator.
(8) Other relevant factors.
(e) The Director of an approved State
may determine that remediation of a
release of an appendix II constituent:
from a MSWLF unit is not necessary if
the owner or operator demonstrates to
the satisfaction of the Director of tiSie
approved State that: '
(lj The ground-water is additionally
.contaminated by substances that have
originated from a source .other than a
MSWLF unit and those substances are
present in concentrations such that
cleanup of the release from the MSWLF
unit would provide no significant '".-'•
reduction in risk to .actual or potential
receptors; or '
(2) The constituents) is present in
ground water that:
(i) Is not 'currently or reasonably
.expected to be a source of drinking
water; and :: .-
pi) Is not hydraulically connected
with waters to which the hazardous
constituents are migrating or are likely
to migrate in a concentratiori(s) that
would exceed the ground-water
protection standards established under
I 258.55 (h) or p); or
(3) Remediation of the releasefs) is
technically.impracticable; or
(4) Remediation results in
unacceptable cross-media impacts. .
(f) A determination by the Director of
an approved State pursuant to
paragraph (e) of this section shall not
affect the authority of the State to
require the owner or operator to
undertake source control measures or
other measures that may be necessary
to eliminate or minimize further releases
to the ground-water, to prevent exposure
to the ground-water, or to remediate the
ground-water to concentrations that are
technically practicable and significantly
reduce threats to human health or the
environment.
§253.58 Implementation of the corrective
action program.
(a) Based on the schedule established
under § 258.57(d) for initiation and
completion of remedial activities the
owner/operator must: •
[1) Establish and implement a
corrective action ground-water
, monitoring program that:
(i) At a minimum, meet the
requirements of an assessment
monitoring program under § 258.55;
(ii) Indicate the effectiveness of the
corrective action remedy; and
(iii) Demonstrate compliance with
ground-water protection standard
pursuant to paragraph (e) of this section.
(2) implement the corrective action
remedy selected under § 258.57; and
(3) Take any interim measures
necessary to ensure the protection of
human health and the environment.
Interim measures should, to the greatest
extent practicable, be consistent with
the objectives of and contribute to the
performance of any remedy that may be
required pursuant to § 258.57. The
fpllowing factors, must be ^considered by
an owner or operator in determining
whether interim measures ai^e
necessary:
p) Time required to develop and
implement a final remedy;
. (ii) Actual or potential exposure of :,
nearby populations or environmental
receptors to hazardous constituents; - ,
(iii) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems; .'•..-•.-
(iv) Further degradation of the ground-
water that may occur if remedial action
is not initiated expeditiously;
(v) Weather conditions that may
cause hazardous constituents to migrate
or be released; ,
(vi) Risks of fire or explosion, or :
potential for exposure to hazardous
constituents as a result of an accident or
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51028
Federal Register / Vol. 56, No. 196 / Wednesday, October 9* 1991 /Rules and Regulations
failure of a container or handling
system; and
(vii) Other situations that may pose
threats to human health and the
environment.
(b) An owner or operator may
determine, based on information
developed after implementation of the
remedy has begun or other information,
that compliance with requirements of
§ 258.57(b) are not being achieved
through the remedy selected. In such
cases, the owner or operator must
Implement other methods or techniques
that could practicably achieve
compliance with the requirements,
unless the owner or operator makes the
determination under § 258.58(c). ,
(c) If the owner or operator
determines that compliance with
requirements under § 258.57(b) cannot
be practically achieved with any
currently available methods, the owner
or operator must:.
(1) Obtain certification of a qualified
ground-water scientist or approval by
the Director of an approved State that
compliance with requirements under
§ 258.57(b) cannot be practically
achieved with any currently available
methods;
(2) Implement alternate measures to
control exposure of humans or the
environment to residual contamination,
as necessary to protect human health
and the environment; and
(3) Implement alternate measures for
control of the sources of contamination,
or for removal or decontamination of
equipment, units, devices, or structures
that are:
(i) Technically practicable; and
(HJ Consistent with the overall
objective of the remedy.
(4) Notify the State Director within 14
days that a report justifying the
alternative measures prior to
implementing the alternative measures
has been placed in the operating record.
(d) All solid wastes that are managed
pursuant to a remedy required under
§ 258.57, or an interim measure required
under § 258.58(a)(3). shall be managed in
a manner:
(i) That is protective of human health
and the environment; and
(2) That complies with applicable
RCRA requirements.
(e) Remedies selected pursuant to
§ 258.b7 shall be considered complete
when:
(1) The owner or operator complies
with the ground-water protection
standards established under
§§ 258.55{h) or (i) at all points within the
plume of contamination that lie beyond
the ground-water monitoring well
system established under § 258.51(a).
(2) Compliance with the ground-water
protection standards established under
§ § 258.55(h) or [i] has been achieved by
demonstrating that concentrations of
appendix II constituents have not
exceeded the ground-water protection
standard(s) for a period of three
consecutive years using the statistical
procedures and performance standards
in § 258.53(g) and (h). The Director of an
approved State may specify an
alternative length of time during which
the owner, or operator must demonstrate
that concentrations of appendix II
constituents have not exceeded the
ground-water protection standard(s)
taking into consideration:
(i) Extent and concentration of the
release(s);
(ii) Behavior characteristics of the
hazardous constituents in the ground-
water;
(iii) Accuracy of monitoring or
modeling techniques, including any
seasonal, meteorological, or other
environmental variabilities that may
affect the accuracy; and
(iv) Characteristics of the ground-
water.
(3) All actions required to complete
the remedy have been satisfied.
(f) Upon completion of the remedy, the
owner or operator must notify the State
Director within 14 days that a
certification that the remedy has been
completed in compliance with the
requirements of § 258.58(e) has been
placed in the operating record. The
certification must be signed by the
owner or operator and by a qualified
ground-water scientist or approved by
the Director of an approved State.
(g) When, upon completion of the
certification, the owner or operator'
determines that the corrective action
remedy has been completed in
accordance with the requirements under
paragraph (e) of this section, the owner
or operator shall be released from the
requirements for financial assurance for
corrective action under § 258.73.
§ 258.59 [Reserved]
Subpart F—Closure And Post-Closure
Care
§ 258.60 Closure criteria.
(a) Owner or operator of all MSWLF
units must install a final cover system
that is designed to minimize infiltration
and erosion. The final cover system
must be comprised of an erosion layer
underlain by an infiltration layer as
follows:
• (1) The infiltration layer must be
comprised of a minimum of 18 inches of
earthen material that has a permeability
less than or equal to the permeability of
any bottom liner system or natural
subsoils present, or a permeability no
greater than 1 x 10~5 cm/sec, whichever
is less, and
(2) The erosion layer must consist of a
minimum of 6 inches of earthen material
that is capable of sustaining native plant
growth.
(b) The Director of an approved State
may approve an alternative final cover
design that includes:
(1) An infiltration layer that achieves
an equivalent reduction in infiltration as
the infiltration layer specified in
paragraph (a)(l) of this section, and
(2] An erosion layer that provides
equivalent protection from wind and
water erosion as the erosion layer
specified in paragraph (a)(2) of this
section.
(c) The owner or operator must
prepare a written closure plan that
describes the steps necessary to close
all MSWLF units at any point during its
active life in accordance with the cover
design requirements in § 258.60(a) or (b},
.as applicable. The closure plan, at a
minimum, must include the following
information:
(1) A description of the final cover,
designed in accordance with § 258.60(a)
and the methods and procedures to be
used to install the cover; .
(2) An estimate of the largest area of
the MSWLF unit ever requiring a final
cover as required under § 258.60(a) at
any time during the active life;
(3) An estimate of the) maximum
inventory of wastes ever 6n-site over
the active life, of the landfill facility; and
(4) A schedule for completing all
activities necessary to satisfy the
closure criteria in § 258.60.
(d) The owner or operator must notify
the State Director that a closure plan
has been prepared and placed in the
operating record no later than the
effective date of this part, or by the
initial receipt of waste, whichever is
later.
(e) Prior to beginning closure of each
MSWLF unit as specified in § 258.60(f),
an owner or operator must notify the
State Director that a notice of the intent
to close the unit has been placed in the
operating record.
(f) The owner or operator must begin
closure activities of each MSWLF unit
no later than 30 days after the date on
which the MSWLF unit receives the
known final receipt of wastes or, if the
MSWLF unit has remaining capacity
and there is a reasonable likelihood that
the MSWLF unit will receive additional
wastes, no later than one year after the
most recent receipt of wastes.
Extensions beyond the one-year
deadline for beginning closure may be
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: / Vol. 56.
Jgtejgesday. October 9. 1991 /Rules and Regulations 51029
granted by the Director of an approved;
State if the owner or operator
demonstrates that the MSWLF unit-has
the capacity to receive additional
wastes and the owner or operator has
taken and will continue to take all steps
necessary to prevent threats to human
V health and the environmental from the
unclosed MSWLF unit.
(g) The owner or operator of all
MSWLF units must complete closure
activities of each MSWLF unit in
accordance with the closure plan within
180 days following the beginning of
. closure as specified in paragraph (f) of
this section. Extensions of fee closure
period may be granted by the Director of
an approved State if the owner or.
operator demonstrates that closure, will.
of necessity, take longer than 180 days
and he has taken and will continue to
take all steps to prevent threats to
human health and the environment from
the unclosed MSWLF unit.
(h] Following closure of each MSWLF
unit, the owner or operator must notify
the State Director that a certification,
signed by an independent registered
. professional engineer or approved by
Director of an approved State, verifying
that closure has been completed in
.accordance with the closure plan, has
been placed in the operating record.
(ij (1) Following closure of all MS WLF
units, the owner or operator must record
a notation on the deed to the landfill
facility property, or some other
instrument that is normally examined
.during title search, and notify the State
Director that the notation has been
recorded and a copy has been placed in
the operating record.
(2) The notation on the deed must in
perpetuity notify any potential1
purchaser of the property that:
(ij The land has been used as a
landfill facility; and
(ii) Its use is restricted under
§ 258.61(c)(3).
Q] The owner or operator may request
permission from the Director of an
approved State to remove the notation
from the deed if all wastes are removed
from the facility.
§253.61 Post-closure care requirements.
(a) Following closure of each MSWLF
unit, the owner or operator must
conduct post-closure care. Post-closure
care must be conducted for 30 years,
except as provided under paragraph (b)
of this section, and consist of at least the
following:
(1) Maintaining thejntegrity and
effectiveness of any final cover,
including making repairs to the cover as -
necessary to correct the effects of
settlement, subsidence, erosion, or other
events, and preventing run-on and run-
off from eroding or otherwise damaging
the final cover;
(2) Maintaining and operating the
leachate-collection system in •
accordance with the requirements in
§ 258.40. The Director of an approved
State may allow the owner or operator
to stop managing leachate if the owner
or operator demonstrates that leachate
j no longer poses a threat to human health
and the environment; r '• ?
[3] Monitoring the ground water in
accordance with the requirements of
subpart E of this part and maintaining
the ground-water monitoring system, if
applicable; and
[4]I Maintaining and operating the gas
.monitoring system in accordance with
the requirements of § 258.23.
(b) The length of the post-closure care
period may be:
(1) Decreased by the Director of an
approved State if the owner or operator
demonstrates that the reduced period is
sufficient to protect human health and
the environment and this demonstration
is approved by the Director of an
approved State; or
(2) Increased by the Director of an
approved State if the Director of an
approved State determines that the'
- lengthened period is necessary to
protect human health and the
environment. :
(c) The owner or operator of all
MSWLF units must prepare a written
post-closure plan that includes, at a
minimum, thei following information:
(IJ A description of the monitoring
and maintenance activities required in
§ 258.61(a] for each MSWLF unit, and
the frequency at which these activities
will be performed;
(2) Name, address, and telephone
number, of the person or office to contact
about the facility during the post-closure
period; and
(3] A description of the planned uses
-of the property during the post-closure
period. Post-closure use of the property
shall not disturb the integrity of the final
cover, linerfs), or any other components
of the containment system, or the
function of the monitoring systems
unless necessary to comply with the
requirements in this Part 258. The
Director of an approved State may
approve any other disturbance if the
owner or operator demonstrates that
disturbance of the final cover, liner or
other component pf the containment
system, including any removal of waste,
will not increase the potential threat to
human health or the environment
(d) The owner or operator must notify
the State Director that a post-closure
plan has been prepared and placed in •
the operating record no later than the
effective date of this part, October 9,
1991, or by the initial receipt of waste,
whichever is later.
(6) Following completion of the posN
closure care period for each MSWLF
unit, the owner or operator must notify
_:the State Director that a certification,
signed by an independent registered
professional engineer or approved by
the Director of an approved State,
verifying that post-closure care has been
completed in accordance with the post-
closure plan, has been placed in the
operating record.
§§258.62—258.69 [Reserved]
Subpart G—Financial Assurance
Criteria
§258.70 Applicability and effective date.
(a) The requirements of this section
apply to owners and operators of all
MSWLF units, except owners or
operators who are State or Federal
, government entities whose debts and
liabilities are the debts and liabilities of
a State or the United States.
^3^e requirements of this section
are effective April 9,1994.
§ 258.71 Financial assurance for closure.
• (a) The owner or operator must have a
detailed written estimate, in current
dollars, of the cost of hiring a third party
to close the largest area of all MS WLF .
unit ever requiring a final cover as
required under § 258.60 at any time
during the active life in accordance with
the closure plan. The owner or operator
must notify the State Director that the
estimate has been placed in the
operating record. '"
(1) The cost estimate must equal the
cost of closing the largest area of all
MSWLF unit ever requiring a final cover
at any time during the active life when
the extent and manner of its operation
would make closure the most expensive,
as indicated by its closure plan (see
§ 258.60{c)(2) of this part).
[2] During the active life of the
MSWLF unit, the owner or operator
must annually adjust the closure cost
estimate for inflation. -
(3) The owner or operator must
increase the closure cost estimate and
the amount of financial assurance
provided under paragraph (b) of this
section if changes to the closure plan or
MSWLF unit conditions increase the
maximum post of closure at any time
during the remaining active life. -.
(4) The owner or operator may f e'duce
the closure cost estimate and the
amount of financial assurance provided
under paragraph (b) of this section if the
cost estimate exceeds the maximum cost
of closure at any time during the
remaining life of the MSWLF unit. The
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51030 Federal Register / Vol. 56t No. 196 / Wednesday, October 9. 1991 / Rules and Regulations
owner or operator must notify the State
Director that the justification for the
reduction of the closure cost estimate
and the amount of financial assurance
has been placed fa the operating record.
(b) The owner or operator of each
MSWLF unit must establish financial
assurance for closure of the MSWLF
unit in compliance with § 258.74. The
owner or operator must provide
continuous coverage for closure until
released from financial assurance
requirements by demonstrating
compliance with § 258.60(h) and (i).
§ 258,72 Financial assurance for post-
closure care.
(a) The owner or operator must have a
detailed written estimate, fa current
dollars, of the cost of hiring a third party
to conduct post-closure care for the
MSWLF unit in compliance with the
post-closure plan developed under
§ 258.61 of this part. The post-closure.
cost estimate used to demonstrate
financial assurance fa paragraph [b] of
this section must account for the total
costs of conducting post-closure care,
including annual and periodic costs as
described fa the post-closure plan over
the entire post-closure care period. The
owner or operator must notify the State
Director that the estimate has been
placed fa the operating record.
(1) The cost estimate for post-closure
care must be based on the most
expensive costs of post-closure care
during tjie post-closure care period.
(2) During the active life of the
MSWLF unit and during the post-closure
" care period, the owner or operator must
annually adjust the post-closure cost
estimate for inflation.
(3) The owner or operator must
increase the post-closure care cost
estimate and the amount of financial
assurance provided under paragraph, (b)
of this section if changes in the post-
closure plan or MSWLF unit conditions
increase the maximum costs of post-
closure care.
(4) The owner or operator may reduce
the post-closure cost estimate and the
amount of financial assurance provided
under paragraph (b) of this section if the
cost estimate exceeds the maximum
costs of post-closure care remaining
over the post-closure care period. The
owner or operator must notify the State
Director that the justification for the
reduction of the post-closure cost
estimate and the amount of financial
assurance has been placed in the
operating record.
(b) The owner or operator of each
MSWLF unit must establish, fa a
manner in accordance with § 258.74,
financial assurance for the costs of post-
closure care as required under § 258.61
of this part. The owner or operator must
provide continuous coverage for post-
closure care until released from
financial assurance requirements for
post-closure care by demonstrating
compliance with § 258.61(e).
§ 258.73 Financial assurance for
corrective action.
(a) An owner or operator of a MSWLF
unit required to undertake a corrective
action program under § 258.58 of this
part must have a detailed written
estimate, fa current dollars, of the cost
of hiring a third party to perform the
corrective action fa accordance with the
program required under § 258.58 of this
part. The corrective action cost estimate
must account for the total costs of .
corrective action activities as described
in the corrective action plan for the
entire corrective action period. The
owner or operator must notify the State
Director that the estimate has been
placed fa the operating record.
(1) The owner or operator must
annually adjust the estimate for inflation
until the corrective action program is
completed fa accordance with § 258.58(f)
of this part.
[2) The owner or operator must
increase the corrective action cost
estimate and the amount of financial
assurance provided under paragraph (b)
of this section if changes fa the
corrective action program or MSWLF
unit conditions increase the maximum
costs of corrective action.
(3] The owner or operator may reduce
the amount of the corrective action cost
estimate and the amount of financial
assurance provided under paragraph (b)
of this section if the cost estimate
exceeds the maximum remaining costs
of corrective action. The owner or
operator must notify the State Director
that the justification for the reduction of
the corrective action cost estimate and
the amount of financial assurance has
been placed fa the operating record.
(b) The owner or operator of each
MSWLF unit required to undertake a
corrective action program under § 258.58
of this part must establish, in a manner
in accordance with § 258.74, financial
assurance for the most recent corrective
action program. The owner or operator
must provide continuous coverage for
corrective action until released from
financial assurance requirements for
corrective action by demonstrating
compliance with § 258.58 (f) and (g).
§258.74 Allowable mechanisms.
The mechanisms used to demonstrate
financial assurance under this section
must ensure that the funds necessary to
meet the costs of closure, post-closure
care, and corrective action for known
releases will be available whenever
they are needed. Owners and operators
must choose from the options specified
in paragraphs (a) through (j) of this
section.
(a) Trust Fund. (1) An owner or
operator may satisfy the requirements of
this section by establishing a trust fund
which conforms to the requirements of
this paragraph. The trustee must be an
entity which has the authority to act as
a trustee and whose trust operations are
regulated and examined by a Federal or
State agency. A copy of the trust
agreement must be placed in the
facility's operating record.
(2) Payments into the trust fund must
be made annually by the owner or
operator over the term of the initial
permit or over the remaining life of the
MSWLF unit, whichever is shorter, in
the case of a trust fund for closure or
post-closure care, or over one-half of the
estimated length of the corrective action
program fa the case of corrective action
for known releases. This period is
referred to as the pay-fa period.
(3) For a trust fund used to
demonstrate financial assurance for
closure and post-closure care, the first
payment into the fund must be at least
equal to the current cost estimate for
closure or post-closure care, except as
provided fa paragraph (j) of this section,
divided by the number of years fa the
pay-in period as defined in paragraph
(a)(2) of this section. The amount of
subsequent payments must be
determined by the following formula:
CE-CV
Next Payment =
where CE is the current cost estimate for
closure or post-closure care (updated for
inflation or other changes), CV is the
current, value of the trust fund, and Y is
the number of years remaining in the
pay-fa peribd.
(4) For a trust fund used to
demonstrate financial assurance for
corrective action, the first payment into
the trust fund must be at least equal to
one-half of the current cost estimate for
corrective action, except as provided fa
paragraph (j] of this section, divided by
the number of years fa the corrective
action pay-in period as defined in
paragraph (a){2) of this section. The
amount of subsequent payments must be
determined by the following formula:
RB-CV
Next Payment =
-------
../.^.^i;:®!^^ 51°3i
where RB is the most recent estimate of
the required trust fund balance for
. corrective action (i.e., the total costs that
will be incurred during the second half
"of the corrective action period), GV is
the current value of the trust fund, and Y
is the number of years remaining on the
pay-in period.
(5) The initial payment into the trust
fund must be made before the initial "
receipt of waste or before the effective
date of this section (April 9,1994],
whichever is later, in the case of closure
and post-closure care, or no later than
120 days after the corrective action
remedy has been selected in accordance
with the requirements of § 258.58. ;
(6) If the owner or operator
establishes'a trust fund after having ,
used one or more alternate mechanisms
specified in this section, the initial
payment into the trust fund must be at
least the amount that the fund would
contain if the trust fund were
established initially and annual
payments made according to the '
specifications,of this paragraph and
§ 270.74(a) of this section, as applicable.
(7) The owner or operator, or other
person authorized to conduct closure,
post-closure care, or corrective action
activities may request reimbursement
from the trustee for these expenditures.
Requests for reimbursement will be
granted by the trustee only if sufficient
funds are remaining in the trust Jxind to
cover the remaining costs of closure,
post-closure care, or corrective action,
and if justification and documentation of
the cost is placed in the operating
record. The owner or operator must
notify the State Director that the
documentation of the justification for
reimbursement has been placed in the
operating record and that
reimbursement has been-received.
(8) The trust fund may be terminated
by the owner or operator only if the
owner or operator substitutes alternate
financial assurance as specified in. this
section or if he is no longer required to
demonstrate financial responsibility in
accordance with the requirements of
§§258.71(b),258.72(b), or258.£3(b).
(b) Surety Bond Guaranteeing
Payment or Performance. (1) An owner
or operator may demonstrate financial -••
assurance for closure or post-closure
care by obtaining a payment or
performance surety bond which
conforms to the requirements of this
paragraph. An owner or operator may
demonstrate financial assurance for
corrective action by obtaining a
performance bond which conforr ,.s to
the requirements of this paragraph. The
bond must be effective before the initial
receipt of waste or before the effective
date of this section (April 9,1994),
. whichever is later, in the case of closure
and post-closure care, or no later than
120 days after the corrective action
remedy has been selected in accordance
with the requirements of § 258.58. The
owner or operator must notify the State
Director that a copy of the bond has
been placed in the operating record. The
surety company issuing the bond must,
at a minimum,; be among those listed as
acceptable sureties on Federal bonds in
Circular 570 of the U.S. Department of
the Treasury. '
(2) The penal sum of the bond must be
in an amount at least equal to the
current closure, post-closure care or
corrective action cost estimate,
whichever is applicable, except as
provided in § 258.74(k).
(3j Under the terms of the bond, the
surety will become liable on the bond
obligation when the owner or operator
fails to perform as guaranteed by the
bond.
(4) The owner or operator must
establish a standby trust fund. The
standby trust fund must meet the
requirements of § 258.74(a) except the
requirements for initial payment and
subsequent annual payments specified
in § 258.74 (a)(2), (3), (4) and (5). '
(5) Payments made under the terms of
the bond will be deposited by the surety
directly into the standby trust fund.
Payments from the trust fund must be
approved by the trustee.
• (6) Under the terms of the bond, the
surety may cancel the bond by sending
notice of cancellation by certified mail
to the owner and operator and to the
State Director 120 days in advance of
cancellation. If the surety cancels the
bond, the owner or operator must obtain
alternate financial assurance as
specified in this section.
(7) The owner or operator may cancel
the bond only if alternate financial
assurance is substituted as specified in
this section or if the owner or operator is
no longer required to demonstrate •
financial responsibility in accordance
with § 258.71(b), 258.72(fa) or 258.73(b).
(c) Letter of Credit. (1) An owner or
operator may satisfy the requirements of •
this section by obtaining-an irrevocable
standby letter of credit which conforms
to'the requirements of this paragraph.
The letter of credit must be effective
before the initial receipt of waste or
before the effective date of this section
(April 9,1994), whichever is later, in the
case of closure and post-closure care, or
no later than 120 days after the
corrective action remedy has been
selected in accordance with the
requirements of § 258.58. The owner or
operator must notify the State Director
that a copy of the letter of credit has
been placed in the operating record. The
issuing institution must be an entity
which has the authority to issue letters
of credit and whose letter-of-credit
operations are regulated and examined
by a Federal or State agency.
(2) A letter from the owner or operatoi
referring to the letter of credit by -
number, issuing institution, and date,
and providing the following information:
Name, and address of the facility, and
the amount of funds assured, must be
included with the letter of credit in the
operating record.
(3) The letter of credit must be
irrevocable and issued for a period of at
' least .one year in an amount at least
equal to the current cost estimate for
closure, post-closure care or corrective
action, whichever is applicable, except
as provided in § 258.74(a). The letter of
- credit must provide that the expiration
date will be automatically extended for
a period of at least one year unless the
issuing institution has cancelled the
letter of credit by sending notice of
cancellation by certified mail to the
owner and operator and to the State
Director 120 days in advance of.
cancellation. If the letter of credit is
cancelled by the issuing institution, the
owner or operator must obtain alternate
financial assurance.
(4) The owner or operator may cancel
the letter of credit only if alternate
financial assurance is substituted as
specified in this section or if .the owner
or operator is released from the
requirements of this section in
accordance with § 258.71(b), 258.72(b) or
258.73(b). -
(d) Insurance. (1) An owner or
operator may demonstrate financial
assurance for closure and post-closure
care by obtaining insurance which
conforms to the requirements of this
paragraph. The insurance must be
effective before the initial receipt of
waste or before the effective date of this
section (April 9,1994), whichever is
later. At a minimum, the insurer must be
licensed to transact the business of
insurance, or eligible to provide
insurance as an excess or surplus lines
insurer, in one or more States. The
owner or operator must notify the State
Director that a copy of the insurance
policy has been placed in the operating
record. , :
(2) The closure or post-closure care
insurance policy must guarantee that ',
funds will be available to close the
MSWLF unit whenever final closure
occurs or to provide post-closure care
for the MSWLF unit whenever the post-
closure care period begins, whichever is
applicable. The policy must also
guarantee that once closure orpost-
closure care begins, the insurer will be
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51032 Federal Register / Vol. 56. No. 196 / Wednesday, October^. 1991 / Rules and Regulations
esponsible for the paying out olfunds
to the owner or operator or other person.
authorized to conduct closure or post-
closure care, up to an amount equal to
the face amount of the policy.
(3) The insurance policy must be
issued for a face amount at least equal
to the current cost estimate for closure
or post-closure care, whichever is
applicable, except as provided in
§ 258,74(a). The term/ace amount means
the total amount the insurer is obligated
to pay under the policy. Actual
payments by the insurer will not change
the face amount, although the insurer's
future liability will be lowered by the
amount of the payments.
(4) An owner or operator, or any other
person authorized to conduct closure or
post-closure care, may receive
reimbursements for closure or post-
closure expenditures, whichever is
applicable. Requests for reimbursement
•will be granted by the insurer _only if the
remaining value of the policy is
sufficient to covef the remaining costs of
closure or post-closure care, and if
justification and documentation of the
cost is placed in the operating record.
The owner or operator must notify the
Slate Director that the documentation of
the justification for reimbursement has
been placed in the operating record and
that reimbursement has been received.
(5) Each policy must contain a
provision allowing assignment of the
policy to a successor owner or operator.
Such assignment may be conditional
upon consent of the insurer, provided
that such consent is not unreasonably
refused.
(6) The insurance policy must provide
that the insurer may not cancel,
terminate or fail to renew the policy
except for failure to pay the premium.
The automatic renewal of the policy
must, at a minimum, provide the insured
with the 05tion of renewal at the face
amount of the expiring policy. If there is
a failure to pay the premium, the insurer
may cancel the policy by sending notice
of cancellation by certified mail to the
owner and operator and to the State
Director 120 days in advance of
cancellation. If the insurer cancels the
policy, the owner or operator must
obtain alternate financial assurance as
specified in this section.
(7) For insurance policies providing
coverage for post-closure care,
commencing on the date that liabiljty to
make payments pursuant to the policy
accrues, the insurer will thereafter
, annually increase the face amount of the
policy. Such increase must be equivalent
to the face amount of the policy, less
any payments made, multiplied by an
amount equivalent to 85 percent of the
most recent investment rate or of the
equivalent coupon-issue yield
announced by the U.S. Treasury for 26-
week Treasury securities.
(8) The owner or operator may cancel
the insurance policy only if alternate
financial assurance is substituted as
specified in this section or if the owner
or operator, is no longer required to
demonstrate financial responsibility in
accordance with the requirements of
§ 258.71(b), 258.72(b) or 258.73(b).
[e) Corporate Financial Test.
[Reserved]
(f) Local Government Financial Test.
[Reserved]
(g) Corporate Guarantee. [Reserved]
(h) Local Government Guarantee.
[Reserved]
(i) State-Approved Mechanism. An
owner or operator may satisfy the
requirements of this section by
obtaining any other mechanism that,
meets the criteria specified in
§ 258.74(1), and that is approved by the
Director of an approved State.
(j) State Assumption of
Responsibility. If the State Director
either assumes legal responsibility for
an owner or operator's compliance with
the closure, post-closure care and/or
1 corrective action requirements of this
part, or assures that the funds will be
available from State sources to cover
the requirements, the owner or operator
will be in compliance with the
requirements of this section. Any State
assumption of responsibility must meet
the criteria specified in § 258.74(1].
(k) Use of Multiple Financial
Mechanisms. An owner or operator may
satisfy the requirements of this section
by establishing more than one financial
mechanism per facility. The mechanisms
must be as specified in paragraphs (a),
(b), (c), (d), (e}, (f), (g), (h), (i), and (j) of
this section, except that it is the
combination of mechanisms, rather than
the single mechanism, which must
provide financial assurance for an
amount at least equal to the current cost
estimate for closure, post-closure care or
corrective action, whichever is
applicable. The financial test and a
guarantee provided by a corporate
parent, sibling, or grandparent may not
be combined if the financial statements
of the two firms are consolidated,
(1) The language of the mechanisms
listed in paragraphs (a), (b), (c), (d), (e),
(f), (g), (h), (i), and (j] of this section must
ensure that the instruments satisfy the
following criteria:
(1) The financial assurance
mechanisms must ensure that the
amount of funds assured is sufficient to
cover the costs of closure, post-closure
care, and corrective action for known
releases when needed;
(2) The financial assurance
mechanisms must ensure that funds will.
be available in a timely fashion when
needed;
(3) The financial assurance
mechanisms must be obtained by the
owner or operator by the effective date
of these requirements or prior to the
initial receipt of solid waste, whichever
is later, in the case of closure and post-
closure care, and no later that 120 days
after the corrective action remedy has
been selected in accordance with the
requirements of § 258.58, until the owner,
or operator is released from the
financial assurance requirements under
§ § 258.7i, 258.72 and 258.73.
(4) The financial assurance
mechanisms must be legally valid,
binding, and enforceable under State
and Federal law.
Appendix I to this Part 258—
Constituents for Detection
Monitoring x
Common name *
Inorganic Constituents:
(1) Antimony , •
(2) Arsenic ...
(3) Barium ,
(4) Beryllium
(5) Cadmium ~ ••••—
(6) Chromium ."•••
(7) Cobalt
(8) Copper
(9) Lead
(10) Nickel ••
(11) Selenium , ~
(12) Silver.—
(13) Thallium : ,
(14) Vanadium
(15) Zinc
Organic Constituents:
(16) Acetone
(17) Acryionitrile
(18) Benzene •
(19) Bromochloromethane—
(20) Brbmodichloromethana
(21) Bromoform; Tribromomethane.,
(22) Carbon disuifide...... :
(23) Carbon tetrachloride
(24) Chlorobenzene
' (25) Chloroethane; Ethyl chloride
(26) Chloroform; Trichloromethane ....
(27) Dibromochloromethane; Chlor-
odibromomethane ...
(28) 1,2-Dibromo-3-ohloropropane;
DBCP
(29) 1,2-Dibromoethane; Ethylene
dibromide; EDB
(30) • o-Dichlorobenzene; 1,2-Dich-
lorobenzene ,
(31) p-Dichlorobenzene; 1,4-Dichlor-
obenzene,
(32) trans-1,4-Dichloro-2-butene...
(33) 1,1-Dichloroethane; Ethylidene
chloride :....;.......,
(34) 1,2-Dichloroethane; Ethylene
dichloride
(35) 1,.1-Dichloroethylene; 1,1-Dich-
loroethene; Vinylidene chloride.....
(36) cis-1,2-Dichloroethylene; cis-
1,2-Dichloroethene
CAS RN »
(Total)
(Total)
(Total)
CTotalj
(Total)
(Total)
(Tolal)
(Tolal)
(Tolal)
(Tolal)
(Total)
(Tolal)
(Total)
(Total)
(Total)
67-64-1
107-13-1
71-43-2
74-97-5
75-27-4
75-25-2
75-1S-0
56-23-5
108-90-7
75-00-3
67-66-3'
124-48-1
96-12-8
106-93-4
95-50-1
106-46-7
110-57-6
75-34-3
107-OR-2
75-3S-4
156-59-2
-------
Common name2
(37) trans-1,2-Dichloroethylene;
trans-1 ,2-Dichloraethene.........;...
(38) 1,2-Dichloropropane; Propytena
dichloride „
, (40) trans-t,3-Dichloropropene....
(41) Ethylbenzene... „ .
(42) 2-Hexanone,- Methyl butyt
ketons...™
(43) Methyl bromide; Bromometh-
ans „ .....
(44) Methyl chloride; Chlorometh-
ane
(45) Methylena bromide; Dibromo-
methane.....
(46) Methylene chloride; Dichloro-
methane ..... ..._ „
'CASfiN'
156-60-5
7S-87-5
10061-01-5
10061-02-6
100-41-4
591-78-6
74-83-9
74-87-3
74-95-3
.75-09-2
Common name2
(47) Methyl ethyl ketone; MEK; 2-
(48) Methyl iodide; lodomethane. ...
(49) 4-Methyl-2-pentanone; Methyl
isobutyl ketone '.. ....'.
(51) 1,1,1,2-Tetrachloroethane „ .„
(52) 1,1,2,2-Tetrachloroethana ...........
(53) Tetrachloroethylene; Tetracn-
foroethene; Perchloroethytene
(54) Toluene .„.„
(55) 1,1,1-Trichioroethane;. Meth-
ylchloroform..;.;
(56) 1 ,1,2-Trichloroethane
(57) Trichloroethylene; Trichtorbeth-
ena ;
(58) Triohlorofluoromethane; CFC-
11.:... ; •
CASRN3
78-93-3
74-88-4
108-10-1
100-42-5
630-20-6
79-34-5
127-18-4
108-88-3
71-55-6
79-00-5
79-01-6
75-69-4
Common name2
(59) 1 ,2,3-Trichloraprapane
(60) Vinyl acetate........:. :. ..........;.
(61) Vinyl chloride™ „
(62)Xylenes..
CASRN a
96-18-4
108-05-4
75-01-4
1330-20-7
1 This list contains 47 volatile organics for which
possible analytical procedures:' provided in EPA
Report SW-846 •TesT Methods for. Evaluating Solid
Waste," third edition, November 1986, as revised
December 1987, includes Method 8260; and 15
metals 'for- which SW-846 provides -either Method
6010 or a method from the 7000 series of methods
2 Common names are thosa widely used in gov-
ernment regulations, scientific publications, and com-
merce; synonyms exist for many chemicals.
* Chemical Abstracts j Service registry number.
Where Total is entered, all species in the ground
.water that contain this element arc included
Appendix II to this Part 258—List of Hazardous Inorganic and Organic Constituents
Common Name z
Acanaphthene .
Acenaphthyiene
Acetone ....„ .
Acetophenone .„ :
2-Acetylaminofluorene; 2-AAF
Acrotein - -
Acrylonitrile ...... .
Aldrin ; „ _
Altyt chloride..... .„...
4-Aminobiphenyl .......I
Antimony ..
Arsenic.: ._
Barium .'.......... '
Benzene _-.
BanzoCalanthracene; Benzanthracene .
BenzoCblfluoranthene
BenzoWfluoranthene.. _ .„
BenzoCghilperylene
Benzotalpyrene.... ^ ___„
Benzyl alcohof .
Beryllium..™
afpha-BHC..™._.. ' ,.-
beta-BHC „ ; ......... ._......
delta-BHC „...„.....„.
CASRN3
83-32-9
208-96^8
67-64-1
75-05-8
98-86-2
53-96-3
107-02-8
107-13-1
309-00-2
107-05-1
92-67-1
120-12-7
(Total)
. (Total)
(Total)
71-43-2
56-55-3
205-99-2
• .. ' 207-08-9.
- 191-24-2
50-32-8
100-51-6
(Total)
319-84-6
319r85-7
3t&r88-8
Chernfcal abstracts service index name 4
2-Propanone ....... ;._.
Acetonitrile ......
Acetamide, N-9H-f!uoren-2-yl-..M
2-Propenenitfil© *
t^iS.a-Dimethanonaphtha'ene,
1 ,4,4a,5,8,8a-hexahydro- (1o,4
[1,1 '-BiphenyU-t-amine
Anthracene .......;......... ....
BenzCalanthracene
Benzotk]flubranthene
BenzoCghilperytene
BenzoCalpyrene..... .
Benzenemethanol .......:„, .
- ...:. -..,. ., .- .
•••-• :•••• ••
.
'"* — " " .........
1,2,3,4,10,10-hexachlbro-
"" - •
- - •'... «• '- - , ..• .'.•..' •
•'-. -•••': .-
• . •
-• - . .
Serylliunu.. .. ... ...„
Cydohexane, 1,2,3,4,5,6-hexachloro-j (1a,2a,3^,4
-------
51034 Federal Register / Vol. 56, No. 196 / Wednesday, October
Common Name 2
Bi&(2-chJo••»•••
4 4l-C3OD.....«.««.......-« ~ . ..-
44'-DDE
4 4*-DOT
CASRN3
58-89-9
111-91-1
111-44-4
108-60-1
117-81-7
74-97-5
75-27-4
75-25-2
101-55-3
85-68-7
(Total)
75-15-0
56-23-5
See Note 8
106-47-8
108-90-7
, 510-15-6
59-50-7
75-00-3
67-66-3
91-58-7
95-57-8
7005-72-3
126-99-8
(Total)
218-01-9
(Total)
(Total)
108-39-4
95-48-7
106-44-5
57-12-5
94-75-7
72-54-8
72-55-9
50-29-3
2303-16-4
Chemical abstracts service index name 4
Cyclohexane, 1 ,2,3.4.5.6-hexachloro-, (1a,2a,3/2,4a,5a,6£)-
Ethane, 1,1 ^-[methylenebis(oxy)3bis[2-chloro-
Ethane 1 t1-oxybisI2-chloro- •
1,2-Benzenedlcarboxylic acid, bis(2-ethylhexyl) ester...
Methane, bromochlofo- • ••
Methane, tribromo- •
Benzene, 1-bromo-4-phenoxy- .
1 2-Benzenedicarboxylic acid, butyl phenylmethyl ester
Cadmium •'• •'• —•
Methane tetrachioro- -
4,7-Methano-1H-indene, 1,2,4,5,6,7,8,8-octachloro-
2,3,3a,4,7,7a-hexahydro-.
Benzenamins, 4-chIoro- •'•
Benzene, chloro- • * "•
Benzeneacetic acid, 4-ch|oro-a-(4-chlorpphenyl)-a-hydroxy-,
ethyl ester.
Ethane chloro- , •— '•
Phenol, 2-chloro- •*•
1 3-Butadiene, 2-chioro-.. .'....*.. .....
Chromium • •
Cobalt
Copper ,
Phenol, 3-methyl-
Phenol, 2-methyl- , -
Cyanide * * •
Acetic acid, (2,4-dichlorophenoxy)-
Benzene, 1,1 1-(dichloroethyenylidene)bis[4-chloro-
Benzene. 1 ,1 '-(2,2,2-trichloroethylidene)bis[4-chloro-
Carbamothioic acid, bis(1-methylethyl)-,S-(2,3-dichlbro-2-pro
penyl) ester.
Sug-
gested
meth-
ods5 '
8080
8270
8110
8270
8110
8270
8110
8270
8060
8021
8260
8010
8021
8260
8010
8021 .
8260"
8110
8270
8060
8270
6010
7130
7131
8260
8010
8021
8260
8080
8270
8270
8010
8020
8021
8260
8270
8040
8270
, 8010
8021
8260
8010
8021
8260
8120
8270
8040
8270
8110
8270
8010
8260
6010
7190
7191
8100
8270
6010
7200
7201
6010
7210
7211
8270
8270
8270
9010
8150
8080
8270
8080
8270
8080
8270
8270
PQL(fg/
0.05
20
5
10
3
10
10
10
20
0.1
5
1
0.2
5
2
15
5
25
10
5
10
40
50
1
100
1
0.1
. •• • to
0.1
50
20
2
2
0.1
5
'10
'5
20
5
1
10
0.5
0.2
5
10
10
5
10
40
10
50
20
70
500 '
10
200
10
70
500
10
60
200
10
10
10
10
200
10
0.1
'10
• o.o
10
0.1
10
10
-------
and Regulations 51035
Common Name 2
Dibenzra,hJanthracene .....: „ l. ..„-
•Dibenzofuran .. . -
Dibromochloromethane; Chlorodibromomethana
1,2-Dibromo^3-chloropropane; DBCP '.
1,2-Dibromoethane; Ethylene dribromide; !EDB
Df-n-batyl phthatate... .
o-Dichlorobenzene; 1 ,2-Diehlorobenzene
m-Dlchlorobenzene; 1,3-Dichlorobenzarte .._..„. _..; ......
p-Dichlorobenzene; 1,4-Dichforobanzene
3,3'-DichlorobenzidinQ •'
. trans-1 ,4-Dichlora-2-butene „.„
Dfchlorodifluororhethane; CFC12;......_...
1 , 1 -Dichloroethane; Ethyldidene chloride
1,2-Dichloroethane; Ethylene dichloride ;. ... .._
•1,t-Dichloroethy!ane;1,1-bicWoroethene; Vinylidene, chloride...
cis-t,2-Dichloroethylene;cis-1,2-Dichloroethene.
trans-1 ,2-Dichloroethyfene trans-1 ,2-Dichloroethene
2,4-Dichlorophenol
2,6-Dichlorophehol.... ....
t,3-Dichtoropropane; Trimethylene dichloride
2,2-Dichloropropane; fsopropyTidene chloride.. .
1,t-Dichloropropene ...... ... •
cisr-1,3-Dichlorbpropene
trans-1 ,3-Dichloropropene ....
Dieldrin „..
Diethyl phthalate._ „ „
0.0-Diethyl O-2-pyrazinyJ phosphorothioate; Thionazin..
Dimethoate ..... ._. •
p-(Dimethylam!'nd)azobenzene ....... „.
7,12-Dtmetliylbenzra]anthracene..........__.._
...... > '. . -
. CASRN3
53-70-3
132-64-9
124-48-1
96-12-8
106-93-4
84-74-2
95-50-1
[ 541-73-t
106-46-7
1 9T-94-1
110-57-6
75-71-8
.75-34-3
107-06-2
75-35-4
156-59>2
156-60-5
120-8a-2,
87-65-0
78-87-5
142-28-9
594-20-7
563-58-6
10061-01-5,
10061-02-6
60-57-1.
84-66-2
297-97-2
6fi-51-5
60—11 -7
57-97-6
Chemical abstracts service index name *
' Dibenzra,h Janthracene !
Dibenzofuran , ....
Methane, dibromochloro-.
Propane, 1,2-dibrorne-3-chloro-
Ethane, t,2-dibromo-...
Benzene, 1,2-dichioro-
Benzene. 1^-Dichloror....
Benzene, 1,4-dfchloro- ^
E-Butene, 1,4-dichloro-, (E)-
Methane, dichlorodifluoro-
! Ethane, 1, 1-dichloro- ....;
Ethane, 1 1-dichloro- ' ' ' •
Ethene, t.1-dichloro-.... ..
Ethane, 1,2-dichloro-, (Z)-.. ..
Ethane, 1^-dichloro-, (E)-
PhenoF 2 4-dtchloro- ' ' *
Phenof, 2,6"-drchforo-. .
'ropane, 1,2-dichloro- .
Propane, 1,3-dichloro-
Propane, 2,2-dichloro-
,-Propehe, 1- 1-dichloro-
-Propene 1 3-dichloro- (E)-
,7:3;6-Dirnethanonaphth[2,3-bIoxIrena, . 3,4,5,6,9,9-hexa,
chibKj-ta,2,2a,3,6,6a,7,7a-octahydro-, (1ao,2A2ao,3A
hpsphorothioic acid. 0,0-diethyl 0-pyrazinyl ester
hosphorodijhioic acid, 0,0-dirnethyl S-C2-(methylamino)-2-
oxoethyn ester. '
enzenamine»N,N-dimethyl-4-(phenylazo)-
ge'sted
meth-
ods5
8tOO
827
827
8010
802
8260
8011
8021
8260
8011
8021
8260
8060
8270
8010
8020
8021
8120
8260
8270
8010
8020
8021
8120
8260
8270
8010
8020
8021
8120
8260
8270
8270
8260
8021
8260
8010
8021
8260
80,10
8021
8260
8010
8021.
8260
8021
8260
8010
8021
8260
8040
8270,
8270
8010
8021
8260
8021s
8260
8021
8260
8021
8260
80.10
8260
8010
8260
8080
8270,
8060
8270
8141
8270
8141
8270
8270
8270
'~yr
-•• 200 .
10
10
i
0.3
5
0.1.
30
25
0.1
10
5
5
10
2
,5
0.5
• 10
5
10
. 5 .
5
0.2
10
- 5
10 .
2
5,
O.t
T5
5
10
20
100.
0.5
5
t
0.5
. 5
as-
0.3
5
, 0.5.
, .0.2
5
0.5
5
5
1.0
10
0.5
Q.Q'i
5
0.3
-'.•' 5
0.5 .
15
0.2
5
20
10
5
m
0.05
10 -
. 5, • -
10
5
"20
. 3' ' '
20
m
10
-------
51036 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
—Continued •••'••-
Common Name •
3.3'-DJrrtothylbonzktin« •'••
2,4-Ofmothylphenol; m-Xylenol
...........
^.e.DW.ro^^^anitro.^thylpheno,
2, Oo oph .
Oinoseb; DNBP; 2-sec-ButyM
E*ndr to .»,
Eodfin aktohyda
Ethyl motbaoylate «»....
Ethyl molhanosulfonate
Hoplachtof ««
.»•.».«•.>•»•...•••*•..».»•»...*
./
tsodfki»t«»«*»«»-».— «*»
CAS RN »
119-93-7
105-67-9
131-11-3
99-65-0
534-52-1
51-28-5
'• 121-14-2
, 606-20-2
88-85-7
117-84-0
122-39-4
298-04-4
959-98-8
33213-65-9
1031-07-8
72-20-8
7421-93-4
100-41-4
97-63-2
62-50-0
52-85-7
206-44-0
86-73-7
76-44-8
1024-57-3
118-74-1
87-68-3
77-47-4
67-72-1
1888-71-7
591-78-6
193-39-5
" 78-83-1
465-73-6
78-59-1
120-58-1
143-50-0
Chemical abstracts service index name 4
1 ,1 '-BiphenylM^'-diamine, S.S'-dimethyl-.
Phenol, 2,4-dimethyl......
,2-Benzenedicarboxylic acid, dimethyl ester
Phenol 2,4-dinitro- •
Benzene, 1-methyl-2,4-dinitro- .'
Benzene 2-methyl-1 ,3-dinitro-
Phenol 2-(1 -methyIpropyl)-4,6-dinitro-
1 2-Benzenedicarboxylic acid, dioctyl ester
Benzenamine, N-phenyl-
Phosphorodithioic acid, 0,0-diethyI S-[2-(ethylthio)ethyl] ester..
6,9-Methano-2,4,3-benzodioxathiepin, 6,7,8,9, 10,1 0-hexa-
chloro-1 ,5,5a,6,9,9a-hexahydro-, 3-oxide,
6,9-Methano-2,4,3-benzodioxathiepin, 6,7,8,9,1 0,1 0-hexa-
chloro-1,5,5a.6,9,9a-hexahydro-, 3 oxide, (3
-------
196 / Wednesday. October 9, 1991 /Rules and
51037
—Continued
Common Name 2
Lead
Mercury..
' Methapyritene...
~ Methoxychlor .......... -."'•'
. • - . • • • - .
Methyl bromide; Bromomethane ••'•'.
Methyl chloride; Chloromethane.. '.„
3-Methylcholanthrene " -
Methyf ethyl ketone- MEK- 2-Butanone
Methyl iodide; lodomethane -
Methyl methacrylate .:..
Methyl methanesulfonate
2-Methylnaphthalene
Methyl parathion; Parathion methyl
4-Methyl-2-pentanone; Methyl isobutyl ketone
Methylene bromide; Dibromomethane
. " -
Methylena chloride; Dichloromethane
Naphthalene
• ' :: -' '-' ' '
1,4-Naphthoquinone .... '
1-Naphthylamine..... .
2-Naphthylamine ......:. ' :
Nickel ;....... "" !
. o-Nitroaniline; 2-Nitroaniline . .
m-Nitroaniline; 3-Nitroanile ....
p-Nitroaniline; 4-Nitroaniline /
Nitrobenzene
o-Nitrophenol; 2-Nitrophenol
p-Nitrophenol; 4-Nitrophenol ..„
. • • .- • . r
N-Nitrosodi-n-butylamine....
. N-Nitrosodimethylamine
N-Nitrosodiphenylamine
N-Nttrosomethylethalamine •
N-Nitrbsopiperidine
N-Nitrosopyrrolidine
5-Nitro-o-toluidine - :""
, Parathion ' '
Pentachlorabenzene
Pentachloronitrobenzene
Pentachlorophenol
Phenacetin.............
Phenanthrene .
'Phenol, [
p-Phenylenediamine ——».•••....
Phorate
CASfiN3
.. (Total)
•ffotal)
.. 126-98-7
• 72-43-5
74-83-9
74-87-3
. .56-49-5
78-93-3
. - 74-88-4
66-27-3
298-OQ^O
108-10-1
74-95-3
. 75-09-2
91-20-3'
130-15-4
134-3^7,
(Total)
88-74-4
99-09^2
98-95-3
88-75-5
100-02-7
924-16-3
55-18-5
. 62-75-9
86-30-6
621-64-7
,10595-95-6
100-75-4
930-55-2
99-55-8
56-38-2
608-93-5
82-68-8
87-86-;5
62-44-2 >
85-01-8 I
108-95-2 f
106-50-3 1
298-02-2 f
Chemical abstracts servipe index name 4
Lead
Mercury.......
2-Propenenitrile, 2-methyl-..
1,2-Ethanediamina, N.N-dimethyl-N'^-pyridinyl-NI/a-thienvl
/ methyl)-.
Benzene.1 ,1 1-(2,2,2,trichloroethylidene)bist4-methoxy- ..
Methane, chloro-
BenztjJaceanthrylene, 1,2-dihydro-3-methyl-..., '
2-Butanone •
Methane iodo-
2TPropenoic acid, 2-methyl-, methyl ester
Methanesulfonic acid, methyl aster....
Phosphorothipio acid, 0,0-dimethyl 0-(4-nitrophenyl) ester
2-Pentanone, 4-methyI-
Methane, dibromo-" -
Methane, dichloro- ' •••..'
1,4-Naphthalanedione ;........ • •
1-NaphthaIenamine;, •••_••••••—
2-Naphthalenamine... ..;. ,
Nickel '
Benzenamihe, 2-nifro-
Benzenamina, 3-nitro-l ""
Benzenamine, 4-nitro
Benzene, nitro-
Phenol 2-nitro- : -
Phenol 4-nitro-
1-Butanamine, N-butyl-N-nitroso-
Ethanamine, N-ethyl-N-nitroso- ; ~
Methanamine, N-methyl-N-nitroso-J .. '
Benzenamine, N-nitroso-N-phenyl-
1-Propanamine, N-nitroso-N-propyl-
Ethanamine, N-methyl-N-nitroso-. "
3iperidine, 1-nitroso-...
Senzenamine, 2-methyl-5-nitro-
Phosphorothioic acid, 0,0-dieth'yl Or(4-njtrophenyl) ester..
Benzene, pentachloro-
3henol, pentachloro- -.. '
\cetamide, N-(4-ethoxyphenl) .-. *
'henanthrene..
3henol
'hbsphorodithioic acid, 0,0-diethyl S-t(ethylth«J)methyl] ester..
Sug-
gestec
meth-
ods'
... 60K
742(
. 7421
.. 801i
826C
827C
.. 808Q
8270
8010
8021
8010
.. 8021
8270
. 8015
8260
. 8010
8260
8015
8260
. 8270
. 8270
8140
8141
8270
f 8015
8260
8010
8021
8260
8010
8021
8260
8021
8100
8260
8270
8270
8270
8270
6010
• 7520'
8270 •
8270
,8270
8090
8270
8040
8270
8040
8270
8270,
8070
8070
8270
8270
8270
8270
8141
8270
8270
8270
.8040
8270
8270
8100
8270
8040
8270
8140
8141
8270
n : —
) 400
) 1000 ,
10
i 5
> 100
100
, -.. 2
10
20
10
1
o;3
10
10
100
40 . .
10
30
10
• 10
0.5
1
10
5
100
20
10
• • 5
0.2
10
0.5
200
":. 5
10
10
10
* * 10
'• ' 150
400.
50
50
20
40
10
5
10
,10.
, 50
20
5
10
20
40
10
0.5
10 "
10
20
5
50
200
10
1
10
2
05
-------
51038 Federal Register / VoL 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
._. ^^ — ——^^_—^_———^••-•^•••^^•••^•^••••^^^^•^•^^•^••^•^•••^BaB^^^PEiM^^^^Ei^^^^^^^^^^^^^^^^^^^^^^^^
—Continued
Common Name *
Polyditorinaled bJphenyls; PCBs; Araclors
Pforamida —
ProptonHrite; Ethyl cyanide.,..
S»frot« ...™..™,™-«.™....« - •
aivtsq 2,4,5-TP .-, —
2,4,5-T; 2,4,5-TrichtofOphanoxyacetlo acid ~.~
1,2,4,5-Tetrad>lorobenran8 ~
1,1,1.2-Tolrachloroelhana.... - „ — ,
1,1,2,2-TelracMoroathane.... -
TalracMoroethylon*; Telrachloroethane; Perchloroethylene
2^,4.6-Tolfachhxophanol •
ThalSum,,,, ,..,..-.....-.- •<
1,1,1-TricMoKMtlMM; Mathylchloroform
1,1,2-Trich(ofoothan«.,—
TrteWofofluofomtthana; CFC-1 1 •
2,4,5-Trfchtofoohenol —
2,4,8-Tridvtorophenol •••••-
0,0,0-Triathyl phosphorathtoata
sym-Trinittobanzant,.. — - - -
Vinyl acotala . „_ -....-
Vinyl chtofkJo; Chtofoethane
Xyterta (tola!) . ~~~ — -• -
Zinc. -:„«. _~~~.. ..~~..™~.. — ...... -
CAS RN «
. See Note 9
23950-58-5
107-12-O
129-00-0
S4-59-/
(Total)
(Total)
93-72-1
100-42-5
18496-25-8
93-76-5
95-94-3
630-20-6
79-34-5
127-18-4
58-90-2
(Total)
(Total)
108-88-3
95-53-4
Sea Note 10
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-?
' 96-18-4
126-68-
99-35-4
' (Tola
108-05-4
75-01-4
See Note 1
(Total
Chemical abstracts service index name *
ropanenitrile , - -
yrene . *
,3-Benzodioxole, 5-(2-propenyl)- ...... • •»»
elenium •»« • *
Propanoic acid 2-(2 4 5-trichlorophenoxy)-.....: .»««
Benzene, ethenyl-
Sulfide , .»»« .-•-• •
Acetic acid, (2,4,5-trichlorophenoxy)- ; » »»
3enzene, 1 ,2,4,5-tetrachloro- •
Ethane, 1,1,1,2-tetrachloro- •
:thane 1 i 2,2-tetrachloro- •» •
=henol, 2,3,4,6-teirachloro- ,
rhallium™ - -
Benzene, methyl-
Benzenamine, 2-methyl-
Benzene, 1,2,4-trichloro- .,,_...., .,
Ethane 1 1 1-trichloro-
• t \ : • '
Ethane 1 1,2-trichloro- • •—•
Ethene" trichloro- ~». .•«
Methane trichlorofluoro-
Phenol, 2;4,5-trichloro- '• —••••
Phenol, 2,4,6-trichloro...... •
Propane, 1,2,3-trichloro- -
Phosphorqthioic acid, 0,0^)-triethylester
Vanadium •' • •,•
Acetic acid, ethenyl ester - ••••
Ethene, chloro- •
Zinc ; • • •'•
Sug-
ested
meth-
ods5
8080
8270
8270
8015
8260
8100
8270
8270
6010
7740
7741
6010
7760
7761
8150
8020
8021
8260
9030
8150
8270
8010
8021
8260
8010
8021
8260
8010
8021
8260
8270
6010
7840
,7841
6010
8020
8021
8260
8270
8080
8021
8120
8260
8270
8010
8021
8260
8010
8260
8010
8021
8260
8010
8021
8260
8270
8040
8270
8010
8021
8260
8270
8270
6010
7910
7911
8260
8010
802
8260
8020
802
826
601
795
795
PQL^O/
50
200
10
60
150
200
10
10
750
20
. 20
70
100
10
2
1
0.1
10
4000
2
10
5
0.05
5
"0.5
0.1
5
0.5
0.5
5
10
400
1 000
10
40
2
0.!
5
10
2
0.3
0.5
10
10
0.3
0.3
5
0.2
5
1
0.2
5
10
. .0.3
5-
10-
5
10
10
5
15
10
10
8u
20UO
40
50
j>
0.4
10
!5
0.2
5
20
50
0.5
-------
51039
Notes
also
'° '** M °f substances= the "^ ha"d columns (Methods and PQL) are given for informational purposes only See'
n(an
., °Su99ested Methods refef to analytical procedure numbers used in EPA Report SW-846 "Test Methods for Fvainatinn
1986, as revised, December 1987. Analytical, details 'can be found in SW-846 and in documentation or ?fL at thp an
representative SW-846 procedures and may not always be the most suitable methodfs) fVmonSq an analvte under thPSm
.opractcal Quantitation Limits (PQLs) are the lowest concentrations of analytes in grouno ?wltlrs that
cision and accurac b the indicated methd
j >.• .,
" ed'i'°[!' November
m?tnods listed are
•«,•
Wlt-hl pef?d limits of
. on ms s are e owest concentratons of analytes in grouno wtrs that Mnte
precision and accuracy by the indicated methods under routine laboratory operating conditions Thd PQLs fisted are ^on H M -
are based on 5 mL samples for volatile organics and 1 L samples for semivolatile organics CAUTION- The POL vSJS in mant^? ° onl S|9"*(?a"t figure. PQLs
estimate for the method and not on a determination for individual compounds; PQLs are not a part of theTeaulafion V a'6 based pnly on a 9eneral
UCCaled- Bis<2-«s°PW'> ether, the name Chemical Abstracts' Sen.ce appVf toits noncommercia, ispmer, Propane. 2,2"-pxybis[2.
, . ,-pxys
!? I0^*16,"8; ThlS.Sntry includes .congener chemicals contained in technicat toxaphene (CAS RN 8001-35-2) i e ch
M- i.XyJene .(totalX This entry includes o-xylene (CAS RN 96-47r6), m-xyiene (CAS RN 108-38-3)
(dimefljylbenzenes) (CAS RN 1330-20-7). PQLs for method 8021 are 0.2 for Sxvlene and 0.1 for l
Appendices to the Preamble
Appendix A—[Reserved]
Appendix B—Supplemental
Information for Subpart A—General
Subpart A discusses the purpose,
scope, and applicability of part 258'
(§258.1). It provides definitions
necessary for the proper interpretation
of the rule (§ 258.2), arid indicates that
there are other Federal laws and rules
with which owners and operators of
MSWLEs must comply.
1. Section 258.1 Purpose, Scope, and
Applicability
Part 258 sets forth minimum national-
Criteria for the location, design,
operation, cleanup, and closure of •
municipal solid'waste landfills. An
MSWLF that does not meet these
Criteria will be considered to be
engaged in the practice of "open
dumping" in yiolation.of section 4005 of
RCRA. Moreover, MSWLFs failing to
satisfy these Criteria will be deemed to
be in violation of sections 309 and 405(e)
of the Clean Water Act if they are
receiving sewage sludge. The purpose of
part 258 is to establish minimum
national Criteria for municipal solid
waste landfills, including MSWLFs used
for sludge disposal. The Criteria do not
apply to owners and operators of
MSWLFs that have stopped receiving
waste as of October 9,1991 (see.
§ 258.1(c)). Owners and operators of
MSWLEs tha* stop receiving waste
between October 9,. 1991 and October 9,
1993 are exempt from all of the
requirements of part 258 except the final
cover requirements cited in § 258.1(d).
Finally, MSWLFs that receive waste on
or after October 9,1991 must comply
with all of part 258 unless otherwise
specifically exempted, e.g., the small
communities exemption contained in
§285.1(f). - , ,
The effective date of part 258 is
Octpber 9,1993, except for two
provisions: (1) The ground-water "
monitoring provisions of §§ 258.51-
258.55, which are phased in for existing
MSWLFs and lateral expansions over a
five-year period beginning on October 9,
1991, in accordance with § 258.50, and
(2) the financial responsibility
provisions of subpart G, which are
effective April 4,1994.
The proposed! 258.1 was the subject
of extensive and substantive comments.
These comments, and EPA's response to
the comments, are'addressed below.
a. Closed Facilities
The proposal excluded "closed traits,"
from the revised Criteria. "Closed units"
were defined as "* * * any solid waste
disposal unit that no longer receiyes
solid waste as of the effective date of
this part and has received a final layer
of cover material." The Agency
proposed this approach for several
reasons. First, as discussed in the
preamble to the proposal, identification
of "closed units" would be difficult, time
consuming, and complicated by such
issues as changes in ownership. Second,
the inclusion of inactive facilities would
dilute the already scarce technical and
financial resources available to the
States. Moreover, other authorities and
resources are available to address
inactive facilities that are creating
environmental hazards. For example,-
abandoned MSWLFs releasing '
hazardous substances that pose a threat
to human health and the environment
can be addressed using authorities
under the Comprehensive
Environmental Response,
Compensation, and Liability Act"
(CERCLA). ...'".
• Several,commenters argued that JSPA
should distinguish between those
facilities that have closed as of
promulgation of the revised Criteria and
those that continue to receive waste
after today's date, but stop doing so
prior to the date .the rulesiake effects
These commenters were concerned that
some MSWLF owners or operators
would take advantage of this window,
perpetuating problems that could
compromise human health and the
environment, Specifically, several
commsnters urged that liquid
restrictions, ground-water monitoring,
and final cover requirements should be
applicable to facilities that cease
receiving waste in the window between
the date of promulgation and the
effective date. Commenters argued that
this approach was more protective of
human health and the environment than
" allowing MSWLFs that close during the
window to be exempt from all the
revised Criteria;
To address these concerns, EPA is
today distinguishing between (1) those
facilities that stopped receiving waste
prior to the date that the rule is
published in the Federal Register, and
(2) those MSWLFs that stop receiving
waste in the window between the date
of publication and the rule's effective
date. MSWLFs in the first category will
remain outside the scope of the revised
Criteria. However, EPA is today
requiring the second category of
MSWLFs to install a final cover as
specified under § 258.60(a). The cover
must be completely installed within six
months of the last receipt of wastes.
Owners and operators of MSWLFs that
stop receiving waste during the window
but that fail to finish cover installation
within six months of the last receipt of
waste will be subject to all of the
requirements of part 258. EPA also
eliminated the proposed .definition of
"closed unit" from the final rule,
because the definition was unnecessary. .
given the revised rule language added to
respond to comments described. The -
-------
5104Q Federal Register / Vol. 56, No. 196 /Wednesday. October 9, 1991 / Rules and Regulations
owners or operators to acquire capital
necessary to fund changes in facility
operation or design, or for States ta
revise their solid waste management
laws and to promulgate their own
regulations. In particular, many States
commented that EPA should lengthen
the uniform effective date of 18 months
by a significant time period to reflect the
time needed to change State laws, revise
State regulations, and have their
programs approved by EPA. These
commenters suggested alternative dates
ranging from 24 to 48 months. However,
other commenters supported phasing in
some self-implementing Criteria prior to
the 18-month date, because it would be
more protective of human health and the
environment.
EPA still believes that a uniform
effective date, except for ground-water
monitoring and financial-responsibility
requirements, is an important aspect of
the rule's implementation. How.ever,
after .closely evaluating the comments
received which questioned the wisdom
of imposing an 18 month effective date,
for most provisions of the rule, EPA had
decided to extend the effective date by
six additional months. As a result, other
than for ground-water monitoring and
financial assurance requirements, all
provisions of the rule will become
effective 24 months after the rule is
published in the Federal Reqister.
The Agency is adopting a 24 month
effective date instead of the 18 month
period contained in the proposed rule
fpr two reasons. First, owners and
operators and other commenters stated
that the 18 month period did not provide
sufficient time for facilities fo have
sufficient capital and resources to
comply with the rule requirements. To..
• deal with these concerns, commenters
suggested that the rule become effective
in anywhere from 24 to 48 months from
the date of "publication. EPA has decided
to provide an additional six months
before the rule becomes effective to
assure that owners and operators have
sufficient time to comply with the
extensive requirements contained in the
final rule. As explained elsewhere, EPA
has also decided that the ground-water
monitoring requirements will be phased
in over a five year period and that the
financial responsibility requirements
will become effective in 30 months.
Secondly, while RCRA section 40Q5(o)
requires States to adopt and implenient
a permit program or other system of
prior approval within 18 months after
the revised landfill criteria are
promulgated, EPA recognizes that even
if States are able to meet that statutory
deadline the Agency will still need time
to evaluate and make a determination
Agency believes the regulatory language
in today's final rule clearly spells out
both the exclusion and the regulatory
requirements for facilities that stop
receiving waste between the
promulgation and effective dates.
EPA decided to distinguish between
the two categories of closed faculties for
several reasons. EPA never intended to
include within the scope of the revised
Criteria inactive MSWLFs that stopped
receiving waste prior to the date of
promulgation of today's rule for the
reasons cited previously, and most
commenters agreed. On the other hand,
the Agency agreed with comments that
some regulatory requirements for
facilities that stop receiving waste
between the date of promulgation and
the rule effective date would curtail
continued problems. In particular, EPA
agreed that, if closed without the benefit
of final cover, facilities would continue
to be exposed to precipitation, which
would result in increased generation of
Icachate. The cover requirement in
today's rule will restrict the introduction
of liquids into the landfill, thereby
limiting the production of leachate.
Today's final cover requirement is
consistent with many State programs
and, therefore, EPA does not believe
that it wiU cause significant impacts on
owners and operators of MSWLFs.
EPA rejected the idea of subjecting
these facilities to additional
requirements for several reasons.
MSWLF owners or operators budget for
facility upgrades or closure
requirements by setting aside funds
during the operating life of the facility.
The 18-month time period between the
date of publication and the rule effective
dale Is not a sufficient period for many
owners or operators to raise the capital
necessary to install a ground-water
monitoring system. Thus, the
"practicable capability" of these owners
or operators to install such a system is
severely limited. Liquids restrictions
requirements would not be necessary
after the cover was installed, since there
would no longer be any containerized or
bulk liquids Disposal and the cover
would minimize the introduction of
precipitation into the landfill.
b. Controls on Municipal Waste
Combustion
The proposal extended the
applicability of the Part 258 Criteria to
landfills that receive municipal waste
combustion (MWC) ash regulated under
subtitle D (i.e., not otherwise regulated
under subtitle C as a hazardous waste).
This would include monofills that
receive only such MWC ash as well as
landfills that co-dispose such MWC ash
with regular municipal solid waste. EPA
noted, however, that action was pending
in Congress on legislation dealing
specifically with the management of
MWC ash. In addition, EPA asked for
comments on the adequacy and
appropriateness of the proposed
requirements to MWC ash disposal.
On November 15,1990, the President
signed the Clean Air Act Amendments
of 1990. Section 306 of the act exempts
MWC ash from being regulated as a
hazardous waste under subtitle C of
RCRA until November 15,1992. The
intent of this provision was to provide
time for Congress to clarify the
regulatory status of MWC ash during the
reauthorization of RCRA. Previously,
Congress had considered legislation
that, if enacted, would have required
special management standards for
MWC ash under subtitle D of RCRA.
Because this rule is not effective until
after November 1992, the applicability of
this rule to MWC ash will be affected by
Congressional action on this issue and a
pending decision on a federal district
court appeal regarding the regulatory
status of ash.1 Until November 1992,
MWC ash disposal is subject to the
existing solid waste disposal criteria
under 40 CFR part 257. In addition, some
States have regulations governing the .
disposal of MWC ash.
c. Rule Effective Date'
The Agency proposed a uniform 18-
month effective date for the revised .
Criteria, with the exception of the
ground-water monitoring requirements,
which were to be phased in over a five-
year period following a schedule
developed by the State and financial
assurance, EPA proposed to make all
requirements [except ground-water
monitoring) effective at the same time to
avoid confusion and to simplify
implementation. However, EPA
specifically solicited comment in the
proposal on the merits of phasing in: the
requirements over time, rather than
uniformly. Under that approach, "self-
implementing" provisions (e.g., liquids
restrictions, hazardous waste screening)
could be effective in less than eighteen
months, perhaps within six or twelve
months, but the remaining requirements
would be effective at 18 months.
Many commenters were in agreement
with the Agency on the usefulness of the
uniform effective date. However, several
commenters were concerned that 18
months would be insufficient time for
1 Environmental Defense Fund, Inc. v. City of
Chicago [HJJ.UL 1989) concluded that MWC ash is
exempt from regulation under subtitle C as a
hazardous waste if the combustor satisfies the
criteria of RCRA section 3001(i). This decision has
been appealed.
-------
as to the adequacy of the State permit
program in accordance with RCRA
section 40Q5(c}[l}(C]L Obtaining EPA's
approval of a State permit pro-am is an
important element in the implementation
of the revised criteria because many of
the rule's provisions are tied to whether
a State has a permit program which has
.been approved by the Agency. Six
additional months, will provide EPA
with time that may be necessary to
review the adequacy of State piermit
programs. '
EPA next considered whether certain ;
requirements should be effective prior to
24 months or* for ground-water
monitoring, on a different schedule from
• the five year phase-In period. EPA was
. not persuaded to change the ground-
water monitoring effective date because
the Agency Delieves the five-year period
is needed to ensure there are sufficient
trained personnel and installation -
equipment available to complete .
monitoring system installation. EPA's
rationale for the five-year phase-in
period is described in more detail in
appendix F. As a general matter, EPA
concluded that applying a significant '
number of requirements before 24
months would give owners and
operators Insufficient time to ,
; incorporate the requirements into their •
operations. However, EPA was
persuaded by commenters who
indicated that facilities that close in .the
window between the promulgation date
and the effective date (i.e., 24 months)
should comply with minimum final cover
requirements. Therefore^ as described
earlier in this section, today's rule
applies this one requirement to facilities
before 24 months.
EPA also evaluated whether other
requirements besides ground-water
monitoring should be effective later than
24 months. The Agency determined that
a later effective date was necessary for
the financial responsibility requirements
because, as discussed In appendix H,
EPA has decided to develop a special
financial test for local governments.
Therefore, to allow time for this
rulemaking, EPA has set an effective
date of 30 months-for this section of the
rule. -•-•••• , , •;..' - ' . •
2. Section 258.2 Definitions -. '
Major comments on the proposed
definitions centered on three terras. The '
comments, and EPA's response, are
highlighted below.
Aquifer. According to the proposed
rule, "aquifer" is a geologic formation,
group of formations, or portion of a
formation capable of yielding significant
quantities of ground water to weUs or
springs. Several commenters suggested .
that the proposed, definition was , .
.ambiguous and that "aquifer" should be
redefined, pther commenters suggested
specific values for the aquifer "yield
capability."
After reviewing and evaluating the
cornments,:;the: Agency has decided to
retain the definition of "aquifer" as
proposed. EPA believes that the quality
and value of the aquifer should be a site-.
specific determination. The Agency is
opposed to judging the resource value of
an aquifer based on a generic scale of
significance, both in terms of quantity
and quality, because of the variability of
aquifers on a site-by-site basis. The
Agency believes it is more appropriate
that such judgments be made on a site-
specific basis. ;
Closed unit The proposed rule
defined "closed unit" as any solid waste
disposal unit that no longejtreceives
solid waste as of the effective date of
this; Part and has received a final, layer
of cover material., This definition was
dropped from the final rule because it
was confusing and, as discussed in the
section on. closed facilities above,
because it is now unnecessary given the
rule changes to § 258.1.
Existing Unit/Lateral Expansia-n* The
proposal defined "exlstinq unit" as any
solid waste disposal unit feat is
receiving solid, waste as of the effective
date of part 258 and has not received a
final layer of cover material, and
"lateral expansion" as a horizontal'
expansion of the waste boundaries of an
existing landfill unit :
Several commenters requested that
the Agency clarify the definitions of
"existing unit" and/or "lateral -
expansion,"' because as proposed^ a
clear distinction was not made on the
definitive, limits or extent of an "existing
unit," and how lateral expansions of
existing units after the effective date
would be regulated. Commentersi
recommended that the Agency consider
the entire permitted landfill area .
(including those areas currently without
waste) to be an "existing unit" Lateral
expansion of such units would be only
those outside the original permitted
area. Alternatively, other commenters
supported designating the "existing
unit" as the area;pf landfill space
actively receiving waste as of the
effective date. Any enlargement of this
area would be considered a "lateral :
expansion," and regulated as a "new
unit." : . ' •
EPA agreed with commenters that as
proposed, the definitions were not clear.
The Agency considered defining
"existing unit" as the entire, originally
permitted landfill area [inclusive of
areas not yet receiving waste on the
effective date)> An extension of this
"existing unit" beyond the original
permitted area would be a "lateral •'. •
expansion." EPA rejected-this-approach
because of the high degree of variability
of permitted landfiliareas thriaughout ;
the country. Some State agencies permit
landfills only on a unit-by-unit basis/
whereas others permit the entire area
; expected to receive waste during the
landfill life. EPA believed some landfills.
would have large areas not subject to
the revised Criteria,, thus significantly ' .
reducing the protection of human health
and the environment..
The Agency also considered the
alternative proposed by commenters, •
i.e., defining "existing unit" as the
landfill area that is receiving waste as of
the effective date. This definition is the
same as proposed with the exception
that the reference to a final cover
requirement is deleted. While this '
alternative was preferable to the
proposed definition, the Agency was
concerned that owners andbperators "
would spread wastes over large portions
of their facility prior to the effective date
so that such portions would foe deemed .
"existing units"'and not:be subject to
certain requirements of today's rule. To
address this concern, EPA added" "
language specifying that expansions to
an "existing unit" would have to be.
consistent with past operating practices
or operating practices modified to
ensure good management. The Agency
believes this added provision ensures
that owners or operators will not
prematurely enlarge their facilities to
avoid compliance with portions of the
.revised Criteria, but at the same time,
accounts for legitimate landfill :
enlargements or changes in.facility
operations resulting from additional
waste volumes. . - • " • •
Therefore, in today's rule, the Agency '
elected to revise the definition of
"existingunit" to "* ,* *mean any solid
waste disposal unit that Is* receiving
solid waste as of the effective date of
this part. Waste plaeemenfrin existing
units must be consistent with past
operating practices or operating ,
practices modified to ensure good
management." This approach to, revising -
the definition of "existing unit"' did not
require that the definition of "lateral
expansion" be. changed from that,
contained in tHe proposal.
3. Section 258.3 Consideration of Other
Federal Laws ."".". . •
The, Agency received two comments-
on tlje proposed §' 258.3, which provided
that the owner/operator of ah MSWXF'
comply with any other applicable
Federal laws, segulations,rof" • ..-.'.
requirements. This section recognizes -
that there are other Federal statutes and
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51042 Federal Register / Vol. 56. No. 196 / Wednesday, October 9, 1991 / Rules and Regulations^
programs that must be considered in.
siting, designing, and operating
MSWLFs and serves as a reminder to
the MSWLF owner/operator that such
requirements must be met. The
preamble to the proposed rule noted a
number of applicable Federal statutes,
including the Glean Water Act and
Clean Air Act.
One commenter suggested that EPA
should maintain consistency among the
MSWLF requirements and other
requirements established under Federal
statutes like the Clean Water and Clean
Air Acts. This commenter proposed that
EPA provide guidance to permit writers
and regulators of other Federal
programs on the unique nature of
MSWLFs. Ano ther commenter
expressed concern that § 258.3 implied
that the State solid waste agency would
be responsible for ensuring compliance
of the MSWLF with other Federal
requirements. This commenter wanted
to make it clear that the MSWLF owner/
operator is responsible for compliance
with any other Federal requirements
and that the State solid waste agency is
not the clearinghouse for all these other
requirements.
The Agency agrees with the points
made by both commenters. EPA has
attempted and will continue to attempt
to ensure consistency among the
requirements in the revised Criteria and
other requirements under Federal law to
the extent authorized by statute. EPA
intends to include information on the
applicable requirements under other
Federal statutes in the technical
guidance that EPA is preparing for this
rule. Finally, the owner or operator, not
the State, is responsible for ensuring
compliance with these other Federal
requirements. The State, however, may
be involved to the extent these Federal
requirements are incorporated and
implemented through State regulatory
programs.
Appendix C—Supplemental
Information for Subpart B—Location
Restrictions
The proposed Criteria specified
restrictions on siting MSWLF units for
six types of locations that the Agency
believed warranted control, in order to
protect human health and the •,
environment. These six location
restrictions have been retained in the
final Criteria with some modifications.
The six are: MSWLFs in the vicinity of
airports and in 100-year floodplains, .
wetlands, fault areas, seismic impact
zones, and unstable areas. Two of these
locations, sites near airports and
floodplains, are included in the existing
part 257 Criteria.
This Appendix summarizes the
proposed location restrictions, provides
a review of the public comments
received, and explains the Agency's
approach and rationale for today's final
location criteria. The first subsection
below discusses and provides the r
rationale for the differences in the
location restrictions for new MSWLF
units, existing MSWLF units, and lateral
expansions.
Differences in Location Restrictions for
Existing Units, New Units, and Lateral
Expansions
Several commenters raised concerns
as to why the Agency applied certain
location restrictions to new MSWLF
units and lateral expansions, but not to
existing MSWLF units. Specifically,
commenters stated that they believed
that the proposed location restrictions
for wetlands and fault areas should be
applicable not only to new units and
lateral expansions but also to existing
MSWLF units.
Consistent with the proposal, the
Agency is subjecting existing units to
only three of the location restrictions—
airport safety, floodplains, and unstable
areas—in today's final rule. Existing
units are subject to both the airport
safety and floodplains location
restrictions because these two criteria
are essentially the same as the existing
'part 257 Criteria, which have been in
effect since 1979. Because owners and
operators of existing units already
should be in compliance with these
Criteria, EPA believes that applying
these location restrictions should not
cause a significant impact on the
regulated community or result in a
detrimental impact to solid waste
disposal capacity, while continuing to
provide protection of human health and
the environment
The Agency decided to apply today's
final unstable area location restriction
to existing units, because the Agency
believes that the impacts to human
health and the environment that would
result from the rapid and catastrophic
destruction of these units outweighs any
disposal capacity concerns resulting
from the closure of existing MSWLF
units.
On the other hand, EPA did not
impose requirements on existing
MSWLF units in wetlands, fault areas,
or seismic impact areas. The Agency
believes that disposal capacity
shortfalls, which could result if existing
landfills in these locations were
required to close, raise greater
environmental and public health
concerns than the potential risks paused
by existing units in these locations. If
existing MSWLF units located in
wetlands were required to-close, there
would be a significant decrease in
disposal capacity, as approximately six
percent of all existing MSWLF units are .
located in wetlands. (This estimate was'
developed by correlating maps of
wetland areas with MSWLF locations.)
In addition, wetlands are more
prevalent in some parts of the country
(e.g., Florida and Louisiana]. In these
States, the closure of all existing units
located in wetlands would likely
significantly disrupt statewide solid
waste management, leading to possible
increases in open dumping and open
burning. Therefore, the Agency believes
that it is impracticable to require closure
of existing units located in wetlands.
Concern about impacts on solid waste
disposal capacity was also the primary
reason the Agency did not subject .
existing units to today's final fault area
location restrictions. The closure of a
significant number of existing units
located in fault areas would result in the
serious reduction of landfill capacity in
certain regions of the U.S. where
movement along Holocene faults is
common, such as along the Gulf Coast
and in much of California and the
Pacific Northwest. EPA estimates that 35
percent of all existing MSWLF units are
in counties that contain faults that have
been active in the Holocene Epoch. The
Agency, however, does not have specific
data showing the distance between
these landfills and the active faults, and
therefore, is unable to precisely estimate
the number of these existing MSWLF
units that would not meet today's fault
area restrictions. However, given the
potential for impacts on solid waste
capacity, EPA believes it is appropriate
not to subject existing units to the final
fault area requirements.
Finally, the Agency today is not
imposing the seismic impact zone
restrictions of § 258.14 on existing units
located in these areas. The Agency
anticipated that there would be a
significant number of existing MSWLFs
in these areas that would be unable to -
meet the requirements of § 258.14,
because retrofitting would be
prohibitively expensive and technically
very difficult in most cases. As a result,
many existing MSWLFs would be forced
to close leading to potentially significant
impacts on solid waste disposal
capacity in these .areas.
While the wetlands, fault areas, and
seismic impact zone provisions of
today's location restrictions do not
apply to existing units, all of these
restrictions apply to lateral expansions
of existing units (as well as new units).
Therefore, owners and operators of
existing units may vertically expand
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Federat
/ Vol. 56. JS(o; 96; / 1/yeeay,, Pptoljer 9, 1991 / Rules and 'Regulations 51043
their existing units in. these Ioca1ttonst
but must comply with the provisions
governing new units if they "wish to
laterally expand. EPA recognizes that
applying these provisions to lateral
expansions (and new unitsj will -
somewhat limit the ability of owners
and operators to* address capacity
needs. However, the Agency believes
that the flexibility provided owners and
operators to vertically expand existing
units will adequately address short-term
capacity needs. In addition, the 24-
month window prior to the effective
date of today's rule;provides owners
and operators time to-plan for future
capacity needs. .
Section 258.29{a) requires the MSWLF
owner/operator to record and retain in.
an operating record any location.
restriction demonstrations. The final
rule allows the Director of an approved
State to specify an. alternative location
for maintaining the operating record and
alternative schedules-for recordkeeping
and notification requirements.
1. Section 258.10 Airport Safety
. The proposed criteria specified that
new MSWLF units,. lateral expansions,,
and existing MSWLF units located
within. 10,000 feet (3,048 meters] of .any
airport runway used by turbojet aircraft
or within 5,000 feet (1,524 meters) of any
. airport runway used by only piston-type
aircraft,shall not pose a bird hazard to
aircraft. These distance limits were
derived from the Federal Aviation
Administration (FAA) Order 5209.5,
"FAA Guidance Concerning Sanitary
Landfills on or Near Airports'" (October
16,1974). The proposal was identical to
existing § 257.3-8, applicable to solid
waste disposalfacilities.
In general, commenters supported the
proposed airport safety criteria; ,
however, some commenfers suggested,
that the Agency consult with the FAA to
establish a coordinated national policy
for siting of new MSWLF unite near
airports. Specifically, commenters were
concerned that the FAA had placed
additional restrictions ort siting near
airports that were-not reflected in EPA's
revised criteria.
In response to these comments, the
Agency consulted with the FAA on the
latest policies for siting near airports. In
January 1990, the FAA revised-FAA
Order 5200.5, which was the basis for
the Agency's existing part 257 criteria
and proposed part 258 airport safety
provision. Under this revision (FAA
order 5200.5A) any waste disposal site
located within a five-mite radius of a
runway end and that attracts or sustains
hazardous bird movements from '•
feeding, water, or roosting areas into, or
2 cross- the runways and/or approach
and departure patterns of aircraft will
be considered "incompatible" with
airports. AdcLitipnauyv any .operator
proposing a_j|sw or expanded waste
disposal facility within five miles of a
runway end s.fcould notify the airport
and the appropriate FAA airport office
so astoprotSde an opportunity to
review .and Comment on thesite in'
accordance with FAA guidance. If. the
disposal facility is determine'd by the :
FAA to be incompatible with, the airport
then under the terms of the order, it
should not be sited at that location.:
To respond to commenters concerns
about the need for 9 coordinated
national1poMcy for siting near airports,
the Agency carefully considered
modifying § 258.10 so as to make it
consistent with the FAA Order 5200.5A.
However, the Agency recognizes the
public has notitad foil opportunity to
review and comment on these potential
additional part.258 requirements for
airport safety, particularly substantive
• new performance criteria and.
restrictions for new MSWLFs and :
lateral expansions within five miles of
airport runways. Therefore, EPA has
decided not to include new performance
criteria for MSWLFs within five'miles, of
airport runways, in today's rule. Instead
EPA expects to propose additional
performance criteria or restrictions for
new and expanded MSWLFs near
airports when the Agency revises these
criteria in the future.
However, EPA believes it is
appropriate to include .in today's rule
one minor procedural element of the
revised FAA order—that owners and '..','.
operators proposing new MSWLF or
(lateral) expansions within five miles of
a runway notify the affected airport and
the appropriate FAA office. EPA
believes that this requirement wfll
ensure communication between the
owner or operator arid the FAA, and
facilitate implementation of the revised
FAA order by the FAA. EPA believes.
this requirement partially addresses
commenters' concerns about a
coordinated national policy on siting
near airports. More importantly, today's
' notification requirement imposes"little
burden on the owner or operator. EPA
believes this burden is particularly small
. when weighed against, the FAA concern
that landfills and other waste disposal
, sites erode the safety of the airport
environment Owners .and operators can
comply with today's notification
requirement simply by submitting letters
to the affected airport and the •
appropriate FAA airports office stating
their intent to site a new MSWLF or
lateral expansions within five miles of
an airport runway. And finally, this
notification requirement is a type of
other applicable Federal requirement
with which an owner or opera tor must
comply with under § 258.3 of today's
rule.-; -" '- ';.; ; ;; :' ;v- - - .
Today*s final airport safely criteria *
applicable to hew MSWLFs, existing
MSWLFs, and lateral expansions remain
unchanged fromathe proposal, except for
minor clarifying language changes. The
Agency also wishes to clarify that
today's airport safety criteria do not '•'.'
prohibit the disposal of solid waste
within the specified distances, unless •
the owner or operator is unable to make
the required demonstration showing that
.•'the landfill is- designed and operated so
as not to pose a bird hazard. Today's
regulation simply defiries-a "danger
zone" within'which particular care must
be taken,to ensure that no bird hazard *
arises. Also, today's requirement applies
only to MSWLFs and does not affect the
location of airports or airport runways
within the specified distance.
Finally, commenters suggested that "-
the terms "bird hazard" and "airport" be
defined in the rule language. In today's
final rule, the Agency defines, those ' '. .
terms by using the definitions currently
found in 40 CFR 257.3-8. The rationale
for these, definitions, which remains
valid for purposes of this rule, can be
found at 44 FR 53458, September 13,
1979. The definitions are as follows:
"Airport" is a public-use airport open to
the public without prior permission and
without restrictions within, the physical
capacities of available facilities'." "Bird
hazard* is "an increase in the likelihood -
of bird/aircraft collisions that may
cause damage to the aircraft or injury .to
its occupants-!"-'-'-.'.'-'- -
2. Section 258J.1. Floodplains
• The proposed criteria specified that
new MSWLF ;units, lateral expansions,
and existing MSWLF units located in
100-year floodplains shall not restrict
the flow of the 100-year flood, reduce
the temporary water storage capacity of
the floodplain, or result in the washout
of solid waste so as to pose a hazard to
human health and the environment. The
proposed requirement was identical to
the existing part 257 Criteria, which are
applicable to all solid waste disposal
facilities, including MSWLFs.
The intent of this requirement is to
ensure that MSWLFs located in a 100-
year floodplains are designed and
operated to prevent significant impacts
on the 100-year flood flow and water
storage capacity. Specifically, disposal
of solid waste in floodplains may have
the following kinds of significant
adverse impacts: (I) If not adequately
protected from washout wastes may be
carried by-flood waters and flow from
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51044 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 /Rules and Regulations
the site, affecting downstream water
quality; (2) filling in the floodplains may
restrict the flow of flood waters, causing
greater flooding upstream; and (3] filling
in the floodplain may reduce the size
and effectiveness of the temporary
water storage capacity of the floodplain,
which may cause a more rapid
movement of flood waters downstream,
resulting in higher flood levels and
greater flood damage downstream.
Several commenters noted that the
proposed rule and preamble were
• inconsistent. Specifically, the rule
language specified that the MSWLF
must not restrict the flow of the 100-year
flood or reduce the temporary water
storage capacity of the floodplain or
result in washout of solid waste so as to
pose a hazard to human health and the,
environment. However, the preamble
stated that locating a MSWLF in a
floodplain will always have some
impact on the flow of the 100-year flood
and water storage capacity. The Agency
agrees that an MSWLF will always have
some impact upon the flow and water
storage capacity of the 100-year flood
and a requirement that an MSWLF not
do so is impracticable. As proposed, the
Agency is requiring that the flow
restriction or impact upon water storage
capacity that does occur, as the result of
the MSWLF, not pose a hazard to
human health and the environment.
Several other commenters disagreed
with the proposed requirement and
strongly urged EPA to ban all MSWLF
units from the 100-year floodplain.
These commenters argued that it is
difficult to predict in advance the
adverse impacts of a flood and asserted
that, in the event of a flood, remediation
would likely involve further
environmental threats and would be
extremely costly, if even possible. Those
commenters also suggested that if the
Agency still decides not to ban MSWLFs
fjom the 100-year floodplain, EPA
should at least ban MSWLFs in areas
subject to frequent flooding (e.g., five- or
ten-year floodplains).
The Agency decided not to ban the
siting of new MSWLF units, lateral
expansions, or existing MSWLF units in
the 100-year floodplain for two reasons.
First, EPA believes that such an across-
the-board ban is not necessary for
MSWLFs to protect human health and
the environment. EPA believes that the
demonstration requirement in today's
final rule fully addresses the human
health and environmental concerns (i.e.,
restricting flow, reducing temporary
water storage capacity, and washout of
waste) posed by the siting of MSWLFs
in floodplain areas. If such a
demonstration cannot be made, the
landfill cannot be sited in that location
or must be closed in accordance with
§ 258.16 of this part. Although EPA
agrees with commenters that it is
somewhat difficult to predict in advance
the adverse impacts of a flood, the
Agency believes such predictions can be
made. In fact, such demonstrations have
been made in the past by facility owners
and operators to comply with identical
floodplain restrictions for solid waste
disposal facilities under part 257, which.
have been in existence since 1979.
Second, as stated previously in the
preamble to the proposed rule, the
outright banning of all MSWLFs from
,• the 100-year floodplain could affect
large portions of the nation, including
large areas of .some States (e.g.,
Louisiana, Mississippi, Missouri, and
Arkansas) and, thus, could strain the
regulated community's ability to provide
adequate disposal capacity for
municipal solid waste in those areas.
Owners or operators of MSWLFs can
determine if their facilities are located in
a 100-year floodplain by using the
Federal Emergency Management
Agency (FEMA) flood insurance rate
maps (FIRMs). These maps cover over
99 percent of the flood-prone
communities in the United States and
can be obtained at no cost from the
FEMA Flood Map Distribution Center,
6930 (A-F) San Tomas Road, Baltimore,
Maryland, 21227-6227. For the small
number of areas that are not covered by
FIRMs, owners or operators could
obtain 100-year floodplain maps from:
The U.S. Army Corps of Engineers, the
Soil Conservation Service, the National
Oceanic and Atmospheric
Administration, the U.S. Geological
Survey, the Bureau of Land
Management, the Bureau of
Reclamation, the Tennessee Valley
Authority, and State and local flood
control agencies and other departments.
Additional guidance on procedures for
delineating floodplains where no maps
exist will be included in the technical
guidance for this rule, which is
discussed in section V of today's
preamble.
The Agency also decided not to ban
the siting of all MSWLF units in areas of
more frequent flooding (e.g., five- or ten-
year floodplains). Under the 100-year
floodplain criterion, an MSWLF unit
cannot be located in the 100-year
floodplain unless the MSWLF unit is
designed, constructed, and maintained
so as not to restrict the flow of the 100-
year flood, reduce the temporary water
storage capacity of the floodplain, or
result hi washout of solid waste. The
main difference between the five- or ten-
year floods and the 100-year flood is the
magnitude of the flood and, therefore,
any structures built for a 100-year flood
should be able to withstand the five- or
ten-year flood. Furthermore, the 100-
year floodplain encompasses,
geographically, all five- and ten-year
floodplains. Thus, the Agency believes
that today's requirement adequately
protects human health and the
environment in 100-year floodplains as
well as in five- and ten-year floodplains.
Finally, the Agency believes that a
ban on MSWLF units in areas of
frequent flooding would be more
difficult to implement because maps
depicting the five- or ten-year
floodplains (frequent flooding areas) are
not readily available and in most areas
are not available at all. A requirement
banning the location of MSWLFs from
areas of frequent flooding areas would ,
require owners or operators to develop
floodplain maps for frequent-flooding
areas. On the other hand, maps
depicting the 100-year floodplain are.
generally readily available.
3. Section 258.12 Wetlands
The proposed criteria specified that
no new MSWLF unit or lateral
expansion could be located in a wetland
unless the owner or operator made
specific demonstrations to the State that
the new unit (1) would not result in
"significant degradation" of the wetland
as defined in the Clean Water Act
section 404(b)(l) guidelines, published at
40 CFR part 230, and (2) would meet
other requirements derived from the
section 404(b)(l) guidelines. Under the
proposal, existing MSWLF units located
in wetlands could continue to operate;
however, as indicated above, any lateral
expansions of existing units would have ,
to be in compliance with the proposed
wetland restrictions.
To be consistent with the Clean
Water Act, the proposed criteria
adopted the definition of wetlands
contained in the Army Corps of ,
Engineers section 404 implementing
regulations (33 CFR parts 320 through
330) and the EPA section 404(b)(l)
guidelines (40 CFR part 230). As defined
by the Corps and EPA, wetlands are
those "areas that are inundated or
saturated by surface or ground Water at
a frequency and duration sufficient to
support, and that under normal
circumstances do support, a prevalence
of vegetation typically adapted for life
in saturated soil conditions. Wetlands
include, but are not limited to, swamps,
marshes, bogs, and similar areas."
Several commenters requested that
new MSWLF units be banned
completely from wetlands. A few
commenters suggested that when a new
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federal Register / Vol. 56. No. 196 / -Wednesday^ctober 9. 1991 /Rules and. Regulations 51045
MSWLF unit is located in a wetland, the
owner or operator of the MSWLF should
be required to restore an equivalent
amount of land as a wetland "offset."
On the other hand, several commenters
supported the proposed approach or one
with more flexibility to allow siting of
critically-needed landfills in wetlands
under certain conditions.
In response to these comments, the
Agency considered whether to establish
an outright ban on new MOWLF units
and lateral expansions in wetlands. The
Agency fully agrees with the • •
commenters that wetlands are a very
important, fragile ecosystem that must
be protected. In fact, the Agency has
identified wetlands protection as a top
priority. In evaluating this issue for
today's final rule, however, EPA also
seriously considered commenters'
request for flexibility to allow limited
siting of landfills in wetlands to address
. potential impacts on current and future
solid waste disposal capacity. As -
discussed earlier in this section,
wetlands comprise large areas of the
country, particularly in certain regions
of the U.S. Because large volumes of
municipal waste are generated in every
community throughout the U.S., there is
a critical need for regional or local
waste management capacity. EPA was
concerned that an outright ban of new
, MSWLFs. or lateral expansions in
. wetlands would severely restrict the
available sites or expansion'
possibilities. Such capacity shortfalls •
very likely could lead to other health
and environmental impacts, such as
open dumping' or open burning. Because
of the potential for serious disruption of
municipal solid waste capacity, the
Agency concluded that some flexibility
must be.provided for communities to
site or laterally expand MSWLFs in
wetlands. Therefore, the Agency
decided against an outright ban on new
MSWLFs or lateral expansions in
wetlands.
However, EPA continues to believe
that siting new MSWLFs or lateral
expansions in wetlands should be done
only under very limited conditions. The
Agency is retaining in today's rule the;
comprehensive set of demonstration
requirements included in the proposed
rule. In addition, the Agency agrees with
commenters that when a new MSWLE is
located or a lateral expansion is created '
in a wetland, that the owner or operator
should offset any impacts through
appropriate and practicable
compensatory mitigation actions ('e.g.,
restoration of existing degraded
wetlands or creation of man-made
wetlands). This approach is consistent -
with the Agency's recent adoption of the
goal of achieving no overall net loss of
the nation's remaining wetland base, as
defined by acreage and function.
Therefore, theAgency has incorporated
this additional demonstration element
into the final rule. Specifically,
§ 258.12(a](4);has been modified to
require owners or operators of new
MSWLF units or lateral expansions to
demonstrate that steps h'av$ been taken
to attempt to achieve no net: loss of
wetlands (as defined by acreage and
function) by first avoiding impacts to ";
wetlands and then minimizing such
impacts to. the maximum extent
practicable^and finally, offsetting any
remaining wetland impacts through all
appropriate'and practicable..;
compensatory mitigation actions |e.g,, '.:„
restoration of existing degraded
wetlands or creation of man-made .. •
wetlands). ...
. The Agency has also made additional
changes to ensure that the_ •...'-
demonstrations required today for new
. MSWLFs and lateral expansions are
comprehensive and ensure protection of
human health and the environment.
First, EPA has added language to..
§ 258.12(a)(2) clarifying that the.owner
or operator must demonstrate that both
the construction and operation of the
MSWLF will not result in violations of
the standards specified in
§ 258.12(a)(2)(i)-(iv).
Second, as requested by commenters,
the Agency has revised § 258.12(a)(3) to
identify the factors the owner or
• operator must address in demonstrating
that the landfill will not cause or
contribute to significant degradation of
.wetlands. These factors, which were
partially derived'from the section
404(b)(l) guidelines, address the
integrity of the MSWLF and its ability to
protect the ecological resources of the
wetland.
Finally, because of the unique
characteristics of wetlands, EPA '
believes that the review and approval of
the Director of an approved State is
necessary for ensuring that the
demonstration is comprehensive and
adequate to protect human health and
the environment. Therefore, today's rule
specifies that all of the demonstrations
must be made to the Director of an
approved State and placed in the
operating record of the facility. This - - ..-
provision effectively bans the siting of
new MSWLFs or lateral expansions in '
wetlands in unapproved States (i.e.,
States that do not have EPA-approved
RCRA subtitle D permitting programs).
EPA believes this approach, is ' '
warranted given the commenters'
concerns regarding wetlands and the
Agency's commitment to protecting .this
valuable resource. •;
As indicated earlier in today's • /
preamble, the Administration
announced on August 9,1991 a- '
comprehensive plan for the protection of
the Nation's wetlands. Included were a
number of actions to improve the
•workability of the Glean Water Act
section.404.regulatory program, which
regulates the discharge of dredged or fill
- material into wetlands. Among these'
*> changes will be the development of
wetlands categories by an interagency
technical committee based on wetlands
. value. After such a categorization
scheme is developed, the mitigation
sequence (i.e., avoidance, minimization,
-. and then compensation) will be.retained
for the high value wetlands category,
and projects in other wetland categories
will be required to offset wetlands -
losses through compensatory mitigation.
When such wetlands categories are
identified, the above changes to the
section 404 permitting program will be
• implemented through amendment of
. applicable legal authorities. Section
258.12 of today's rule is consistent with
regulatory provisions currently .
governing the section 404 program.
When the section 404 regulatory
program is modified in accordance with
the Administration's wetlands
protection program, relevant portions of
this rule will be modified accordingly.
Furthermore, four agencies have
recently published proposed revisions to
a technical guidance document :
implementing the current regulatory
definition of wetlands, and the agencies
will shortly be proposing to codify
portions of that document in the Code of
Federal Regulations. See 56 FR 40446
(Aug. 14,1991). The definition of
wetlands contained in §258.12 of —
today's rule reflects the Agency's
current definition under the section 404
program. See 40 CFR 232.2(r), When the
agency proposes amendments to the
definition of wetlands under the section '•
404 program, such changes will also be
proposed for the definition contained in
§ 258.12 of today's rulev \- /
4. Section 258.13 Fault Areas l
EPA proposed to ban new MSWLF
units and lateral expansions within 200
feet (60 meters) of faults that have ' '.'.''
experienced displacement during the
Holocene Epoch. The Holocerte is a Unit
of geologic time, extending from the end
of the Pleistocene Epoch to the present '
and includes the past 11,000 years of the
Earth's history. The technical
justification for the 200-foot (60-meter)
setback is discuss' 'in the preamble for
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51046 Federal Register / Vol. 56. No. 196 / Wednesday. October 9, 1991.J Rules and Regulation^
the proposed rule and the Draft Location
Restriction Background Document.
In the proposed rule, a "fault" was
defined as a fracture along which strata
on one side have been displaced with
respect to that on the other side. In
response to comments, EPA revised the
definition of fault in today's rule to
include a zone or zones of rock
fracturing in any geologic material along
which there has been an observable
amount of displacement of the sides
relative to each other. This addition is
necessary because faulting does not
always occur along a single plane of
movement (a "fault"), but rather along a
zone of movement [a "fault zone").
Therefore, "zone of fracturing," which
means a fault zone in the context of the
definition, is included as part of the
definition of fault, and thus the 200-foot
setback distance will apply to the
outermost boundary of a fault or fault
zone.
Several commenters suggested
alternatives to the proposed 200-foot
setback distance. Although no
commenters suggested actual values for
these changes or provided any data, two
favored an increased distance, one
favored a decreased distance, and two
favored a distance based on site-specific
studies.
Seismologists generally believe that
the structural integrity of MSWLFs
cannot be unconditionally guaranteed
when they are built within 200-feet of a
fault along which movement is highly
likely to occur. Moreover, EPA relied on
a study that showed" that damage to
engineered structures from earthquakes
is most severe when the structures were
located within 200-feet of the fault along
which displacement occurred. In
general, EPA believes that the 200-foot
buffer zone is necessary to protect
engineered structures from seismic
damages.
However, the Agency also agrees with
commenters who argued that the 200-
foot setback may be overly protective in
some geologic formations but it is
unable to provide a clear definition of
these geologic formations. Therefore, the
Agency has allowed in today's rule, the
opportunity for an owner or operator of
a new MSWLF unit or lateral expansion
to demonstrate to the Director of an
approved State that an alternative
setback distance of less than 200 feet
will prevent damage to the structural
integrity of the MSWLF and will be
protective of human health and the
environment Section 258.29 of today's
rule also specifies that the
demonstration must be placed in the
operating record of the facility. This
approach requiring review and approval
of the Director of an approved State is
consistent with other sections of today's
rule for variances or waivers from the
specified self-implementing requirement.
EPA recommends that owners or
operators use a map published by the
U.S. Geological Survey in 1978 to
determine the location of Holocene
faults in the United States. For locations
in which movement along a Holocene
fault has occurred more recently than
1978, owners or operators of new
MSWLFs and lateral expansions would
need to perform a geologic
reconnaissance of the site and its
environs to map fault traces and to
determine the faults along which
• movement has occurred in Holocene
time, and then to determine the
appropriate 200-foot setback zone[s).
5. Section 258.14 Seismic Impact Zones
The proposed criteria required owners
or operators of new MSWLF units or
lateral expansions located in a seismic
impact zone to design the unit to resist
the maximum horizontal acceleration in
lithified material for the site. The design
features affected include all
containment structures (i.e., liners,
leachate collection systems, and surface
water control systems). Seismic impact
zones were defined in the proposal as
areas having a 10-percent or greater
probability that the maximum expected
horizontal acceleration in hard rock,
expressed as a percentage of the earth's
gravitational pull (g), will exceed O.lOg
in 250 years.
Several commenters suggested that
the requirement for seismic impact areas
be revised so that the maximum
expected horizontal acceleration is
based on site-specific assessments
rather than on one performance criterion
(exceedance of O.lOg in 250 years) for all
sites. Some commenters supported the
proposed criterion, while others favored
the use oi? a 100-year return period,
rather than a 250-year period. These
commenters believe that using a 250-
year return period to evaluate site peak
ground motion would result in more
expensive studies and design in these
areas, when the 100-year return period
provides adequate protection to human
health and the environment.
EPA has rejected the commenters'
suggestion to allow the maximum
expected horizontal acceleration to be
set on a site-specific basis. Because of
the self-implementing nature of today's
rule, EPA believes that to ensure
adequate protection of human health
and the environment it is essential to
establish a standard performance
criterion for horizontal acceleration.
Today's final standard still provides
owners and operators of new MSWLF
units and lateral expansions significant
flexibility in selecting appropriate
facility design on a site-specific basis to
meet the specified performance
criterion.
EPA also decided to retain the
proposed criterion using the 250-year
return period rather than changing to a
100-year period as some commenters
suggested, for two reasons. First,
commenters did hot present any data
demonstrating that the 100-year return
period was as protective of human
health and the environment. In lieu of
supporting data, EPA is hesitant to
adopt what it considers to be a less
protective standard. Defining seismic
zones by using the 250-year interval
includes more area within the zone than
a 100-year and, therefore, will be more
protective of human health and the
environment. Second, as a practical
matter, 100-year interval maps are not
available for most areas in the U.S. This
would require owners or operators to do
possibly costly studies to identify these
areas if today's rule used the 100-year
interval. The maps for the 250-year
intervals, on the other hand, are readily
available for all of the U.S. in the U.S.
Geological Survey Open-File Report 82h
1033, entitled "Probabilistic Estimates of
Maximum Acceleration and Velocity in
Rock in the Contiguous United States."
Several commenters noted that EPA
used the terms "lithified material" and
"hard rock" interchangeably in the
proposed rule. Commenters requested
that these terms be defined or clarified.
EPA agrees that these terms were used
interchangeably, and that this results in
confusion. Because the term "hard rock"
can be ambiguous—raising questions
such as what is "hard" rock as opposed
to "soft" rock—the Agency revised the
rule language to use the term "lithified
earth material" consistently throughout
the rule. This term best defines the
material the Agency is addressing hi this
part of the rule. The term "lithified earth
material" includes all rock, including all
naturally occurring and naturally formed
aggregates or masses of minerals or
small particles of older rock that formed
by crystallization of magma or by
induration of loose sediments. The term
specifically excludes man-made
materials such as fill, concrete, and
asphalt, as well as unconsolidated earth
materials, soils, or regolith lying at or
near the earth's surface.
Like all of today's final rule, the final
seismic impact zone requirements are
self-implementing. As such, today's final
rule requires the owner or operator to
place the specified demonstration in the
operating record and to notify the State
Director. This provision ensures that the
owner or operator retains the
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Federal
documentation necessary to show that a
demonstration has been made in,
compliance with this requirement.
51037
6. Section 256.15 Unstable Areas
. The proposed criteria required owners
- and operators of new MSWLF units, '.
lateral expansions, and existing MSWLF
units located in unstable areas to
demonstrate to the State's satisfaction
. the structural stability of the unit. Such •.
demonstrations would have to show
that engineering measures have been '
incorporated into .the design of the unit
to mitigate the potential adverse impacts
of establishing events on the structural
components of the unit. These structural
components include liners, leachate
collection systems, final cover systems,
run-on and run-off control systems, and
any other component necessary for
protection of human health and the
environment •
The proposed criteria also required a
6l/2 year phase-out of existing MSWLF
units located in unstable areas that '.-'.-..-
could not make the demonstration. This
was corrected in the final rule to make
the closure deadline five years from •:. .
today's date, as originally intended. ;
However, States could grant an
extension to -the phase-out if there were
no available disposal alternative and no
potential threat were posed to human .
health and the environment. {See ...
appendix B for discussion on closure of
existing units).
Several commenters requested that
the Agency clarify its definition of
"unstable areas." Today's final rule
provides that "unstable areas" are
locations that are susceptible to natural
or human-induced events or forces
capable of impairing^he integrity of
some or all of the landfill structural
components responsible for preventing
releases from a landfill. Unstable areas
are characterized by localized or
regional ground subsidence, settling
(either slowly, or very rapidly and
catastrophically) of overburden, or by
slope failure. Unstable areas generally
include: .
(1) Poor foundation conditions—areas
where features exist that may result in
inadequate foundation support for the
structural components of the MSWLF unit
(this includes weak and unstable soils);
(2) Areas susceptible to mass movement—
areas where the downslope movement of soil
and rock (either alone or mixed with water)
occurs under the influence of gravity; and
(3) Karst terraces—areas that are underlain
by soluble bedrock, generally limestone or
.dolomite, and may contain extensive
subtei-ranean drainage systems and relatively
large subsurface voids whose presence can
lead to the rapid development of sinkholes.
The term "karst" refers to a type of
topography that under certain climatic
conditions develops 'on soluble rock,
most commonly limestone or dolomite.
Karst areas are characterized by the
presence 6f certain physiographic
features such as sinkholes, sinkhole
plains, blind valleys, solution valleys,
losing streams, caves, and big springs, '
although not all these features are
always present EPA's intent is to
include as an unstable area only those
karst terraces in which rapid subsidence
and sinkhole development have been a
common-occurrence in recent geologic
time. Many of the karst areas are shown
on the U.S. Geological Survey's National
Atlas map entitled "Engineering Aspects
of Karst," published in 1984. This is a
very small scale map, and even though a
review of that map suggests that a site is
not in an area with historical subsidence
problems, owners and operators should
undertake a more site-specific
investigation to show that the potential
for subsidence at their site is very
limited or nonexistent. Guidance on this
issue will be included in the technical
guidance document for this rule the
Agency plans to issue within six
months. .
Specific examples of natural or
human-induced phenomena include:
Debris flows resulting from heavy
rainfall in a small watershed; the rapid
formation of a sinkhole as a result of
excessive local or regional ground-water
withdrawal; rockfalls along a cliff face
caused by vibrations set up by the
detonation of explosives, sonic booms,
or other mechanisms; or the sudden
liquefaction of a soil with the attendant
loss of shear strength following an
extended period of constant wetting and
drying. Various naturally-occurring
conditions can make an area unstable
and these can be very unpredictable and
destructive, especially if amplified by
human-induced changes to the
environment. Such conditions can
include the presence of weak soils,
oversteepened slopes, large subsurface
voids, or simply the/presence of large -
quantities of unconsolidated material
near a watercourse.
The preamble to the proposed rule
specified "weak and unstable soils" as '" .
an example of an unstable area. Several
commenters requested that EPA clarify
its definition of "weak and unstable
soils," with some suggesting that
engineering criteria be substituted.
Based on comments received, EPA is
clarifying the definition of "weak and
unstable soils" in this appendix. Weak
and'unstable soils are of two basic
types: (1) Expandable soils and rocks
sensitive to water, and (2) soils arid
rocks subject to rapid settlement when
saturated. Naturally-occurring
expandable materials include .smectitic
clays, anhydrous sodium sulfate, and
some shales. Loess, which is a primarily
silt-sized material, is the principal
material subject to rapid settlement :
upon saturation. Liquefaction and the
subsequent sudden loss of bearing
strength is a major problem with many
, of these materials, and if any^of the
above/materials are present-at a
proposed MSWLF site, detailed
geotechnical and.geological studies
should be undertaken to examine and
document the performance of the soil
under all likely climatic and technical
settings. This is to ensure that poor
foundation conditions are not now
present, and that they are not likely to
occur in the future under changes in
climatic and other conditions that may
reasonably be expected to occur. As an
example, the bearing strength of soils at
a site where there are seasonal cycles of
wetting and drying should be
documented under both conditions.
Guidance on this issue will be included
in the technical guidance EPA is
developing for this rule.
One commenter argued that all
MSWLFs should be banned in karst
terraces instead of allowing a -•-.-''.
demonstration of structural stability
because such areas are commonly prors
to catastrophic subsidence. The
commenter further argued that it is
extremely difficult tp show that ground-
water monitoring and corrective action
can be effectively performed in many, if
not mcjst, karst terraces, particularly
those where ground water moves along
large, discrete conduits. -
The Agency recognizes that rapid .
sinkhole formation that occurs in some
karst terraces can pose a serious threat
to human health and the environment by
damaging the structural integrity of
liners, .caps, run-on/run-off control " •' •
systems, and other engineered
structures. However, EPA did not
propose an outright ban of MSWLF units
in-all karst terraces because of concerns
regarding the impacts of such a ban on
solid waste disposal capacity in certain
regions of the country. For example,
several States (i.e., Kentucky,
Tennessee) are comprised mostly of
karst terraces and the banning of all
MSWLF units in karst terraces would
cause severe statewide disruptions in
capacity available for solid waste ,
management.rMoreover, the Agency
believes that some karst terraces may
provide sufficient structural support for
MSWLFs and the filial rule should
provide flexibility for siting in these .
areas. Therefore, today's rule allows the
construction of new MSWLF units or <•
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51048 Federal Register / Vol. 56. No. 196 /ii'W^Qf,^y;|Q^°^^'.
latcral expansions and the continued
operation of existing MSWLF units in
karat terraces where the owner or
operator demonstrates to the State
Director the structural integrity of the
components of the unit as allowed for in
§ 258.15{a). The Agency believes this
approach will provide adequate
protection of human health and the
environment for subtitle D units.
Although the standards set forth in
this section pertain to the issue of
structural integrity of MSWLF units in
karat terraces, EPA acknowledges that
there are additional problems in
establishing an effective ground water
monitoring system in some karst
terraces. EPA believes that the ground
water monitoring requirements under
subpart E of today's rule adequately
address the establishment of a ground
water monitoring system at all MSWLF
units for subtitle D purposes, including
those located in karst terraces. New
units and lateral expansions in karst
terraces that are not able to
demonstrate compliance with subpart E
are not allowed to begin operations,
even if compliance with § 258.15(a) can
be demonstrated. Similarly, existing
units that are not able to demonstrate
compliance with subpart E, even if
compliance with § 258.15(a) can be
demonstrated, are required to close in
accordance with § 258.18. This will
provide additional protection of human
health and the environment.
Today's final unstable area
restrictions incorporate an editorial
change suggested by a commenter. This
commenter indicated that the language
in one sentence of § 258.15(a) as
proposed was confusing (i.e., "The
owner or operator of an MSWLF unit
located in an unstable area must
demonstrate to the State that
engineering measures have been
incorporated into the unit's design to
ensure the stability of the structural
components of the unit") The
commenter suggested that the language
be revised as follows (changes
underlined): "* * * have been
incorporated into the unit's design to
ensure that the integrity of the structural
components of the unit will not be
disrupted." The Agency agrees with this
editorial comment and revised the final
rule language as suggested.
Like all of today's final rule, the final
unstable area restrictions are self-
implementing. As such, today's final
unstable area restrictions require the
owner or operator to place the specified
demonstrations in the operating record
and to notify the State Director. This
provision ensures that the owner or
operator retains the documentation
necessary to show that a demonstration
has been made in compliance' with this
requirement.
7. Section 258.18 Closure of Existing
Units
The proposed rule, under § 258.15,
required owners and operators of
existing MSWLF units that were located
in unstable areas and unable to
demonstrate the structural integrity of
the unit, to close within 6Vz years
(October 9,1996) unless the State
extended the deadline. Extensions could
only be granted by the State after
considering the availability of
alternative waste disposal capacity and
the potential risk to human health and
the environment.
As discussed earlier, § 258.15(c)
erroneously stated that existing units hi
unstable areas that are unable to make
the demonstration, must close within 5
years of the effective date of the rule. As
this is read, it allows G1A years for
MSWLFs to close. The Agency has
corrected this in today's final rule to
reflect its original intention to allow a
maximum of 5 years from today's date
for MSWLF's unable to make the
appropriate demonstrations, to close.
Several commenters expressed
concern that States could extend this
phase-out period for existing units
beyond the intended five years with no
limitations. EPA agrees with the
commenters that there should be a limit
on the time period for extensions.
Therefore, in today's rule, EPA is
limiting the length of an extension that
the Director of an approved States may
grant to two years after the initial five-
year extension. EPA believes that five
years will, in most cases, be adequate
time to complete proper and effective
facility closure in unstable areas, and to
arrange for alternative waste
•management. However, there may be
cases where alternative waste
management capacity may not be
readily available or where the siting and
construction of a new facility may take
longer than five years. EPA believes the
two-year extension provides sufficient
time to address these potential
problems. EPA continues to believe that
impacts on human health and the
environment need to be carefully •
considered before such extensions are
granted. For this reason, the final rule
retains the provision that an extension
be given only after consideration of
threats to human health and the
environment. Specifically, today's final
rule requires the owner or operator to
demonstrate that there is no available
alternative disposal capacity and there
is no potential threat to human health
and the environment.
To further ensure careful
consideration and review of human
health and environmental impacts, time
extensions must be approved by the
Director of an approved State.
Therefore, these extensions will not be
available to owners and operators of
MSWLFs in unapproved States.
In reviewing comments on the
proposal, the Agency recognized that
the proposed rule was unclear regarding
closure of existing MSWLF units that
could not make the demonstrations
under the airport safety and floodplains
location criteria. Therefore, to clarify
this issue, EPA has specified under this
new section (253.16) that existing
MSWLF units that cannot meet the
demonstration requirements under the
airport safety or floodplain location
restrictions must also close under the
same schedule discussed above for the
unstable area restrictions. As discussed
earlier in this preamble, EPA expects
that most, if not all, existing MSWLFs
should be in compliance with the. airport
safety and floodplain provisions
because they have been in effect under
existing part 257 since 1979. Thus, the
Agency does not expect many existing
units in these two locations to close.
Nonetheless, closure of existing units
that cannot make the demonstrations
required in today's rule was the original
intent of the Agency. This section now
explicitly provides for closure of
existing units where required and
clarifies the Agency's original intent on
this matter.
8. Other Location Areas
EPA specifically requested comments
on whether other location restrictions in
addition to those proposed should be
imposed for MSWLFs. The Agency
received several suggestions for
additional location restrictions. The
major suggestions included areas of
high-quality, vulnerable ground water
and unmonitorable areas. However, the
Agency decided not to include them in
today's final rulemaking for the reasons
discussed below.
The Agency recognizes the concern
with siting MSWLF units over areas of
high-quality, vulnerable ground water.
EPA agrees that high-quality, vulnerable
ground water should be protected.
However, as noted earlier, this rule is
intended to be self-implementing. As
yet, the Agency does not have adequate
information to develop acceptable
national and self-implementing criteria
to identify high-quality, vulnerable
ground water. The Agency is still
examining this issue and developing
those types of criteria for determining
' areas of high-quality, vulnerable ground
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and Regulations gi04S
water. Such specific criteria are critical
for an effective, HnpieEaentable siting
requirement Therefore,, restrictions OH
siting MSWLF units over areas of high-
quality, vulnerable ground water are not
indsded m today's Snal role. If EPA
decides to establish a new'siting
restriction, for- lS) training of facility
personnel to recogdzeregnlatgd
hazaordoiis, wasfe and PCB wastes? and
(4) procedares for notifying authorized
States under Subtitle C of RCRA or the-
EPA Regional AdmmistratoF if a....
regulated hazardous waste or PCB
waste is discovered at the facility.
Coinraeaters requested lisat EPA .
define what constittttes an rrtspsction;
and what is meant by a random ;
inspection; These.issnes are diseassed
• below. -
Under today's riile^aiE inspection
would iavolve dischargmg a waste load
Said viewing the contents prior to actual
disposal of the waste atthe facility,
allowing the facility owner or operator
to refuse ttfdfepose; of wastes cJeemed
inappropriate, faspections could: be
perforraed near or adjacent to tha
working face of the landfall. :.
Alternatively, inspections could be
performed oa a tipping feor located
near the facility scale house or inside
the site entrance. Inspections could also
be performed at the tipping floor of
transfer stations, prior to the transfer of
the waste to the facility. An inspection
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51050 Federal Register / Vol. 56, No. 196 / Wednesday. October•g 1991^
at a transfer station could operate in lieu
of a random inspection of incoming
loads at the MSWLF. Inspections should
be performed by facility personnel
trained to recognize regulated hazardous
waste or PCS wastes.
For an inspection to be adequate, the
inspector should know the nature of all
materials received in the load and
whether or not they are regulated
hazardous waste or PCS wastes.
Because it 5s not practicable to inspect
every load, random inspections are
required (unless other steps or
procedures are taken to ensure that
incoming loads do not contain regulated
hazardous waste or PCB wastes). Waste
brought to the facility in containers used
for hazardous materials, in containers
not ordinarily used for the disposal of
household wastes (e.g., in 55-gallon
drums), or in unmarked containers may
warrant inspections. Loads may also
warrant inspections if brought to the
facility in vehicles not typically used for
disposal of municipal solid waste or if
transported by haulers who usually
transport hazardous waste. For wastes
of unknown nature received from
sources other than households (e.g.,
industrial or commercial
establishments), the inspector should
question the transporter about the
composition of materials brought to the
facility for disposal.
Commenters also requested that the
Agency clarify what frequency
constituted "random" inspections.
Today's final rule does not specify a
minimum frequency because EPA
believes the appropriate frequency for
inspections will vary significantly based
on site-specific factors. Such factors
include the owner or operator's
knowledge of the waste generator and
hauler and the type of waste received.
For example, wastes received from a
waste generator that the owner or
operator has little prior experience with
may require more frequent inspections.
Likewise, wastes from commercial or
industrial sources may require more
frequent inspections than wastes
predominantly from households. The
owner or operator should consider these
factors, as well as others applicable to
his or her facility, in developing an
appropriate inspection program. EPA
plans to provide additional guidance on
this issue hi the technical guidance on
this rule described hi section VI of
today's preamble.
Owners and operators of MSWLFs
must ensure that all relevant personnel
are trained to identify potential
regulated hazardous waste and PCB
wastes. Relevant personnel may include
supervisors, spotters, designated
inspectors, equipment operators, and
weigh station attendants. The training
should emphasize methods to identify
containers and labels typical of
hazardous waste and PCB waste.
Training should also address the proper
handling of hazardous waste. Some of
this information is provided in courses •
currently offered to comply with the
Occupational Safely and Health Act
(OSHA), under 29 CFR 1910.120.
Section 258.20 of today's rule requires
records of all inspections. Under
§ 258.29 of today's rule, these records
must be included and maintained in the
operating record. Inspection records
should include the date and time wastes
were received during inspection, names
of the hauling firm and driver, source of
the wastes, vehicle identification
numbers, and all observations made by
the inspector. The final rule, however,
does provide flexibility to Directors of
Approved States, to establish •
alternative recordkeeping locations and
alternative schedules for recordkeeping
and notification requirements.
Numerous commenters asked what
should be done with hazardous waste -
left at the gate or inadvertently accepted
at the MSWLF. This includes: What an
owner or operator should do if .
hazardous material is discovered; who
is responsible for removal of the waste;
and,, should testing be necessary to
determine whether or not a material is
hazardous, who is responsible for
storing the material during testing and
what storage protocols apply.
Under today's rule, owners and
operators must develop procedures to
notify the proper authorities if a
" regulated hazardous waste is discovered
at the facility, as discussed below. The
proper authorities should include the
State Director in a State authorized to
run-a hazardous waste program under
subtitle C of RCRA and, hi an
unauthorized State, the EPA Regional
Administrator.
The owner, or operator may be
responsible for the regulated hazardous
waste upon its discovery at the facility
and thus should comply with the
applicable regulations. In a State
authorized under subtitle C of RCRA,
the applicable regulations are generally
State regulations. In an unauthorized
State, the applicable regulations are the
appropriate Federal regulations"
(primarily those found at 40 CFR parts
260 through 270). Generally, if the owner
or operator is able to identity the waste
as a regulated hazardous waste while
the material is still in the possession Of
the transporter, and refuses to accept
the waste at the MSWLF, the waste
remains the responsibility of the
transporter. However, if the owner or
operator discovers regulated hazardous
waste at the MSWLF, the owner or
operator must ensure that the wastes
are treated, stored, or disposed of in
accordance with RCRA and applicable
State requirements. He or she may
choose to keep the wastes on site or to
transport them off site to a RCRA .
subtitle C facility. If the owner or
operator transports the wastes off site,
he or she must ensure that the wastes
are properly manifested and packaged
in accordance with 40 CFR part 262 or
the analogous authorized State
requirements. This would include
designating a facility permitted to treat,
store, or dispose of the hazardous waste.
If the owner or operator decides to treat,
store, or dispose of hazardous wastes on
site, he or she must comply with the
applicable State and Federal
requirements. The requirements for
treatment, storage or disposal of
hazardous waste vary from State to
State. Thus, when located in a State
with an authorized program, the owner
or operator should consult the State
regulations.
2. Section 258.21 Cover Material
Requirements
The proposed rule specified .
application of .suitable cover material at
the end of each operating day, or at
more frequent intervals, if necessary, to
control disease vectors, fires, odors,
blowing litter, and scavenging. Under
the proposal, the States could
temporarily waive the daily cover
requirement on a case-by-case basis in
the event of extreme seasonal climate
conditions, such as heavy snow or
severe freezing, that make this
requirement impractical.
In the preamble to the proposed rule,
EPA recommended that if earthen
materials were used, six inches be
applied and requested comment on
using this approach for the final rule.
Many commenters supported the use of
earthen materials, suggesting that it
either be a minimum of six inches or be
sufficient to hold down paper.
Commenters also recommended that
this be incorporated iiTthe final rule..
In response to these comments, the
final rule requires the owner or operator
of an MSWLF unit to. cover disposed
solid waste with six inches of earthen
materials (i.e., soils) unless an approved
State approves alternative cover
materials. The Agency selected a six-
inch depth based on data that show that
six inches of compacted .sandy loam are
necessary to prevent fly'emergence
(Response to Comments Document-
Operating Criteria). The Agency
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199:1 / Rules and Regulations 53051
believes that by regukiHg six inches of
earfeeamateiialsv it will Be easier to
implement and enforce todays role. EPA
believes this reqakemeat will not
significantly affect many facilities
because 45 Stateaaad Territories
already specifically require six indues of
earthen material as daily cover; and the
practice- is standard operating procedure
at mostMSWLFsv
The rule; as. proposed allowed other
suitable materials to be used as cover
and EPA specifically requested
comment on whatpther materials, inight
be suitable. la response^ cammenfers
suggested materials that included,
geotextilesv foams, plastic sheets, tarps,,
sewage sludge,, "fluff' (non-iaetallic.
residue frora metalshredding, , ' .
operations^ mumeipal waste
combustion ash, paper millrsliidgss, used
asphalt material feem street
maintenaneei, composted yard wastes,
wood chip grindmgs from tree
trimmings, artdl even, "raateiials •
ordinarily disposed of in landfills:.''' -•
In today's feairate, the Agency has
not specified appropriate alternative ..
materials because the Agency does not
have sufficient mfomKtion on aM .• :. :
materials feat could be used as daily
cover and does: not want to. preclude the
use of materials that may be found at a
later- date to be adequate daily-cover'
material.. However,' to aMow owners and
operators of MSWLFs to take, advantage
of new technologies; or to use cover
materials that address specific
geographic situations,, the final rule
provides that fee approved States aiay
allow alternative material's of
alternative thicknesses. Under
§ 258-21(b}, the owner; or operator must
demonstrate that the alternative
material and thickness will control!
disease vectors,, fires, odors-, blowing
litter,, and scavenging without presenting
a threat to human health and fee
environment. The- Agency plans to
provide guidance on feisissae, including-
methods for evaluating alternative
materials, in fee technical guidance for
this rale described in section V of • -• -
today's preamble. In. this guidance, the
Agency will discuss fee various :
alternative materials suggested by
commenters and fee AgencyVcsaneerna
regarding fee use of certain materials
(e.g., MWC ash).
An important aspect of this ;
alternative cover provision is that
. decisions can.be made only by States
with EPAr-appraved programs. These
approved programs will ensure feat fee
State wfll interact with fee owners; o>r
operators when approving an alternative
cover material, feus ensuring feat fee
alternative material will be protective of
human health f nd the eav/troraneht,
Therefore* only owners cc operators
located in Statas wife approved
programs hay|' the opportunity to
demonstratelo fee State tb^t alternative
materials can fre used* "; ; _
The proposM ride specified that cover
be- applied at the end of each operating
day, or at more, frequent intervals if
necessary, to control disease Vectors. '
fires, odors, blowingHtter, and
scavenging. EPA requested comments
on fee appropriate frequencies; for
application of cover.. Numerous^
commenters'addressed this issue. Many
rural communities criticized tha
requirement for daily application of
cover, arguing feat weekly coyer .-/•
extends- fee fife of the landfill and, given
feeirrurailocation, feere was ittte
potential of health hazards. Some
commenters suggested feat fee type of
waste received (e.g., inert materials! be
used to determine fee frequency of
application. Several eommenters
suggested feat the_ requirement be :
revised-to state .that, waste should not be
exposed for a specified tiine period,
such as 16 or 24 hours, rather than
requiring daily cover.
Today.'s. final rule retains the
proposed daily cover requirement
because fee Agency does not believe fee
commenters provided sufficient
information to warrant modifications.
Daily cover serves several specific '
purposes for protecting human health
and the environment: (!}, Ithelps m;
disease vector and rodent control; (2}-;it
helps contain odor, litter, and air
emissions, which may threaten human
healfe and envkonment and/or be
aesthetically displeasing; (3) it lessens
fee risk and spread of fires; and (4) it
reduces infiltration, of rainwater by
increasing, rtai-ofl artd thereby decreases
leachate genenation and sarfaee and
ground-water contamination. Cover
material applied less frequently will not
be as effective in meeting these abosve
purposes.. As art additional benefit, daily
cover material enhances fee site
appearance and its; utilization after
completion. - . -. : i-' . '. ''
EPA proposed temporarily waiving
daily cover for 'extreme seasonal
climatic conditions. EPA also asked for
comment on whether there are other,
reasons besides extreme seasonal
climatic conditions-for temporarily
exempting daily cover. Commenters
suggested that, in addition to climate,
States-be allowed to consider the types
and quantities of wastes received, the
location of the facility, the facility
design and operation, and the
.practicable capability of fee operator.
The Agency decided that fee
rationales provided by commenters for
including factors in- addition to extreme
climatic conditions were not persuasive
enough to- be included M fee final rule.
The Agency rejected these comments
because daily cover is; a necessary good
housekeeping practice and should be
required regardless of waste types;
location of fee facility;" aad fee design
and operation:oi the facility. Dnlike"
extreme climatic conditions-, which
make the placement o£ daily cover very
difficult; fee- conditions! cited by
commenters do not pose significant
obstacles fo daily cover operation.:The
Agency believes; thaMhe protection
, provided to human healfe and1 the
environment fey daily cover outweighs
any of fee diifieutties cited by
commenteFs. - - '-
Today^s finairule provides featdnly
States- wife approved programs may
approve temporary waivers for extreme
seasonal climatic conditions because
fee Agency believea that the State; ;
should be involved in deciding whether
a waiver is necessary.. In addition,
States-wfinouf approved programs may
not have the procedures or authoriiy to
implement these waivers.
3. Section 2S&22 , Disease Vector
Control . ... .- .-.-
The Agency did not receive any ;'
comments on fee proposed disease '
vector requirement and1 has retained it
in the final rule. Thus,, as proposed^
today's role requires feateach owner or
operator of an MSWtF prevent or '
control on-site disease yectpr "
populations, using appropriate
techniques to protect human healfe and
fee environment; This standard is
intended to prevent the facility from
bemg a breeding;ground, habitat, or"
feeding area for disease vector
populationsv Vector control activities
are to be undertaken in conjunction with
the application of cover material
required by § 258.21. If cover materiaf
requirements prove insufficient to
ensure vector control, other steps must. •
be taken by fee owner or operator to
•ensure sucrt conttrol'i, |e.g., shredding, fee
waste). Methods for controlling disease
vectors wiK be discussed; in the
technical guidance^ document for this
rule.. '--.-'• ". • -'•• ' ' •'•
4. Section 258.23 Explosive Gases •
Control , '• p . '
The decomposition of solid waste (m
particular; household waste) produces
methane, an, explosive gas. The
accumulation df methane in MSWLF
structures can result in fire and
explosions feat can injure or kill
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51052 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
employees, users of the'disposal site,
and occupants of nearby structures, and
can damage containment structures and
thereby cause the emission of toxic
fumes. For this reason, EPA established
an explosive gas criterion in § 257.3-8 of
the original subtitle D Criteria to control
the concentration of methane in facility
structures and at the property boundary.
Specifically, § 257.3-8 required that the
concentration of methane generated by
the MSWLF not exceed 25 percent of the
lower explosive limit (LEL) in facility
structures (excluding gas control or
recovery system components) and that it
not exceed the LEL itself at the property
boundary. EPA expanded this
requirement hi § 258.23 of the proposed
rule by requiring the owner or operator
to conduct subsurface and facility
structure gas monitoring at least
quarterly to ensure methane control. In
addition, EPA proposed that if methane
exceeds the limits specified, the owner
or operator must take necessary steps to
ensure protection of human health and
immediately notify the State of the level
detected and the steps taken to protect
human health. Such steps could include
evacuation and ventilation of affected
buildings. The Agency also proposed
that the owner or operator submit a
remediation plan to the States within 14
days of the methane limits having been
exceeded. This plan must describe the
nature and extent of the problem and
the proposed remedy.
The proposal listed site-specific
factors that control the rate and extent
of gas migration, which should be
considered to determine the type and
optimal frequency of monitoring (which
in some instances may be more than
quarterly). These factors include: soil
conditions, hydrogeologic conditions
surrounding the disposal site, hydraulic
conditions surrounding the disposal site,
and the location of facility structures
relative to property boundaries.
Many commenters criticized the
minimum frequency of quarterly
monitoring and recommended that
States be allowed to specify the
monitoring frequency. Some also
suggested that exceptions to quarterly
monitoring be permitted based on
climate (either dry or cold), type or
quantity of waste disposed, and
distance from structures or other
facilities.
The Agency decided to retain the
minimum quarterly monitoring
frequency requirement because the
Agency was not persuaded that dry or
cold climates, type or quantity of waste
disposed, and location of the facility
should be factors for waiving quarterly
monitoring. Catastrophic results may
occur if methane levels remain
unchecked; therefore, the Agency
believes for safety reaspns it is
necessary to retain the nunimum
quarterly frequency for methane
monitoring in the final rulemaking. The
Agency believes that methane
monitoring is critical because it provides
an early warning of potential methane
build-up that may lead to explosions,
and that quarterly monitoring accounts
for the seasonal variations in subsurface
gas migration patterns.
As mentioned above, EPA also
proposed that certain steps be taken if
methane gas levels exceeding the
specified, limits are detected. The
Agency did not receive any comments
on the proposed § 258.23(c) (1) and (2),
which required the owner or operator to
take all necessary steps to protect
human health and immediately notify
the State of methane levels detected and
actions taken. Therefore, EPA retained
these provisions as proposed, with
minor modifications in keeping with the
self-implementing aspects of today's
final rule. EPA has clarified the rule
language by requiring the owner or
operator to notify the State immediately
when the methane limits have been
exceeded, and within seven days place
in the operating record documentation
of the methane gas levels detected and a
description of the interim steps taken to
protect human health. The Agency
believes that seven days is adequate
time for the owner or operator to place
the documentation in the operating
record. However, the Agency is allowing
the State Director to establish
alternative recordkeeping locations and
alternative schedules for recordkeeping
and notification requirements. The
Agency included the operating record
provision to ensure that there is proper
documentation if methane levels are
exceeded and to facilitate citizen suits.
EPA received numerous comments
regarding proposed § 258.23(c)(3), which
required the owner or operator to submit
a methane remediation plan wi thin 14
days. Many commenters criticized the
14-day period for submitting a
remediation plan as being unrealistically
short Commenters said that plans for
interim measures could be submitted in
that time frame to ensure the immediate
protection of human health and the
environment, but that determination of
the problem and the exact nature of
remediation would take much longer.
Proposed time schedules ranged from 30
to 90 days. The Agency agrees with
these commenters that the 14-day
response time was not a realistic time
period to allow an owner or operator to
make a complete determination of the
methane problem and to adequately
evaluate the alternatives for remedial
action to alleviate the problem and to
submit a remediation plan.
The Agency considered the
alternative time frames, ranging from 30
to 90 days, suggested by the
commenters. The Agency determined
that 60 days will provide adequate time
for an owner or operator to develop and
place in the operating record a
remediation plan that would describe
the nature and extent of the problem
and the proposed remedy without
causing undue threat to human health,
and modified the final rule accordingly.
This 60-day time period is needed to
provide adequate time for the owner or
operator to contact, if necessary,
knowledgeable outside parties to assist
in the .development of the remediation
plan, which should include
determination of the exact location and
extent of the methane gas problem,
determination of the need for and
location of interceptor gas collection
trenches, and a decision as to whether
venting of structures and subsurface gas
withdrawal is necessary. EPA does not
believe that allowing this additional
time compromises the protection of
human health and the environment
because, under § 258.23(c)(l), the owner
or operator still must take all necessary
steps to ensure immediate protection of
human health, including interim
measures, if methane gas levels exceed
the specified limits. Rather, a reasonable
specific time period for the development
of a plan facilitates the self-
implementing nature of today's rule.
The Agency also modified the rule to
require the owner or operator to place
the remediation plan in the operating
record and to notify the State. The plan
is then to be implemented once it has
been placed in the operating record. The
Agency added this requirement to the
final rule to provide a mechanism to
ensure that the owner or'operator
develops a remediation plan, when
necessary, and that the plan is made
available for State and public review.
The final rule allows Directors of
approved States to establish alternative
recordkeeping locations and alternative
schedules for recordkeeping and
notification requirements.
5. Section 258.24 Air Criteria
Under § 258.24(a), EPA proposed to
require that MSWLFs not violate
applicable requirements of State
Implementation Plans (SIPs) under
section 110 of the Clean Air Act (CAA).
Section 258.24(b) proposed to prohibit
open burning (i.e., uncontrolled or
unconfined combustion) of solid waste
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Federal Register / Vol. 56, No. 196 /Wednesday,; October 9, 1991, / Rules and Regulations 7<51D53;
but allow infrequent burning of
agricultural wastes, silvicultural wastes, '.
land-clearing debris, diseased trees,
debris from emergency cleanup
operations, and ordnance (e.g.,
ammunition and bombs). These
requirements were already in effect
under part 257. In the proposed rule, the
Agency clarified that empty pesticide
containers or waste pesticides were not
exempted agricultural wastes. This
interpretation has been used by the
Agency in implementing the air criteria
requirements for solid waste disposal
facilities under 40 CFR part 257 (see 44
FR 53438). . -
Today's final rule is unchanged from
that proposed, with the exception that
ordnance has been deleted from the list
of wastes that may be burned at
MSWLFs. This is because the Agency
recognizes that ordnance (e.g.,
ammunition and bombs) may be capable
of detonation and exhibits the
characteristic of reactivity, and is thus
regulated as a hazardous waste (40 CFR
261.23). Under existing regulations, all
hazardous waste must be, transported to
a hazardous waste treatment, storage or
disposal facility that has received either
interim status or a RCRA part B permit
under 40 CFR part 270; therefore,
ordnance may not be open-burned at an
MSWLF.
In the preamble to the proposal, EPA
noted that MSWLF air emissions, other'
than from open burning, would be
regulated under the CAA section lll(b)
for new landfills and section lll(d)for
existing landfills at some future date.
Several commenters criticized the
Agency's decision to regulate emissions
from MSWLFs under these sections of
. the CAA, stating that the CAA's
structure is cumbersome and ill-suited to
address the control of air emissions
from landfills. They suggested that these
emissions be regulated under subtitle D.
EPA disagrees with these •
commenters. The Clean Air Act is the
Agency's primary statutory authority for
addressing air quality concerns. As
such, EPA believes it is appropriate to
regulate air emissions from MSWLFs
under the CAA. Therefore, under section
lll(d), EPA is planning to propose air
emission regulations to be adopted and
used by the States to prepare plans for
controlling air emissions from MSWLF
units. .
Although a few commenters
expressed support for the ban on open
burning, small rural communities '
expressed widespread opposition.
Commenters opposing the ban stated
that burning reduces the volume to be
buried.and thereby extends the useful
life of a landfill, poses less of a threat to
. the environment than does burying raw
garbage (i.e., that pollution caused by
burning was probably less, of a problem
.than ground-^ater pollution caused by
burying), do£,s not attract rfidents and
wild animals ,,and eliminE!ti|s the
methane prdblem. Many commenters
argued that the burning of yard waste
(particularly brush, tree limbs,
undiseased trees, and untreated wood
products) should be allowed.; Some
commenters argued that prohibiting
open burning would increase the cost of
solid waste disposal. Others argued that.
if existing small landfills were forced to
close, uncontrolled burns and midnight
dumping would increase. EPA originally
established the ban on open burning in
1979 in the part 257 Criteria. The
rationale for .banning open burning of
solid waste in 1979 is equally applicable
today; that is, the hazards posed to.
humanhealth.by allowing the open
burning of solid waste (e.g., the increase
in particulate emissions, de'creased
safety) outweigh any benefits derived
from the practice. For example, EPA has
data indicating that smoke from open
burning can reduce aircraft and ,-.
automobile visibility and has been
linked to automobile accidents and
deaths on expressways. Open burning
may result in uncontrolled emissions of
hazardous constituents that pose a
threat to human health and the
environment. Furthermore, commenters
did not submit data to support their
claims that open burning poses less of
an environmental threat than does
landfilling the waste. EPA decided that
any cost savings did not outweigh the
- benefits to human health and the
environment in this case. For the
reasons described above, EPA retained
the open burning prohibition in today's
final rulemaking. <
Numerous commenters expressed
support for burning yard waste at
MSWLFs using trench incinerators, pit
burners, or air curtain destructors. _
Commenters stated that air curtain
destructors have been shown to reduce.
waste volume by 98%, and particulate :
air emissions by 80-90%. EPA carefully
reviewed the data submitted by
commenters on this issue. Although
there has been some improvement in
this technology over the last ten years,
EPA concluded that these devices still
emit unacceptable levels of particulates.
While trench incinerators, pit burners
and air curtain destructors reduce air
emissions by 80-90%, EPA's test data
indicates that such particulate emissions
are similar to particulate emissions from
open burning (Reference: Background
Document—Operating.Criteria). .•'"
Furthermore, because these devices do
not control the emission of combustion
products, they are considered "open
burning." Open burning is defined under
§ 258.2 as the combustion of solid waste
. (1) without control of combustion air to
maintain adequate temperature for
efficient combustion; (2) without
'containment of the combustion reactior,
in an enclosed device to provide
sufficient residence time and mixing for
complete combustion; and (3) without
the control of the emission of the
combustion products (see also 40 CFR
257.3-7(c)). . . .'•;•• • .
The Agency would also like to note
that although open burning of most
wastes is prohibited at MSWLFs under
the final rule, infrequent burning of •
certain materials is permitted. Materials
that may be burned infrequently are
agricultural wastes, silvicultural wastes,
land-clearing debris, diseased trees, and
debris from emergency cleanup
operations. This approach is consistent
with EPA's existing requirements at 40
CFR part 257 for solid waste disposal
facilities and practices (see 44 FR 53458,
September 13,1979). The open burning
of these materials is not typically an
ongoing practice and, thus, does not
present a significant environmental risk.'
In addition, destruction of disease-
carrying trees or debris from emergency
operations provides a'n added, ,
environmental benefit in preventing
chances of disease or accident. Today's
final criteria do require that the conduct
of these infrequent acts of burning must
be ^in compliance with applicable
requirements under the State SIPs. In
response to comments, EPA is clarifying •
today that the open burning of yard
wastes, pesticide containers, and
wooden pallets is not an allowed
practice. Open burning should be
conducted in areas dedicated for that
purpose at a distance from the landfill
unit so as to preclude the accidental
burning of other solid waste.
6. Section 258.25 Access Requirements
EPA proposed to require control of
public access to new and existing
MSWLF units to prevent illegal dumping
of wastes, public exposure to hazards at
MSWLFs, and unauthorized vehicular
traffic. Access control is a key element .
in preventing injury or death at these
facilities. The proposal also required the
use of artificial or natural barriers, as :
necessary, to prevent illegal dumping of
wastes and unauthorized vehicular
traffic. This requirement is intended to
prevent the illegal disposal of regulated
hazardous waste as defined under 40
CFR part 261 and PCB wastes as defined
under 40 CFR part 761 and unauthorized
vehicular traffic when the facility is
closed, not to prevent access for
controlled disposal.
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51054
19S i Wednesday. October ft 1991 / Rules and Regulations
A few coramenters were concerned
that dumping outside the MSWLF would
occur if the site were not accessible at
afl times. They recommended that the
rule be revised to ensure site access at
all tunes.
The Agency disagrees feat requiring
the facility to be accessible to the public
at all times to prevent the problem of
dumping wastes outside the landfill area
during off-hours outweighs the potential
problems that may occur with
uncontrolled access. Access control is
necessary to prevent illegal dumping of
hazardous wastes and direct public
exposure to solid waste and is a key
element in preventing injury or death at
MSWLFs. The importance of access
control cannot be overstated, because
people have suffered injury and even
death at uncontrolled waste disposal
facilities. The most effective means of
minimizing the risk of injury to persons
(other than users of the MSWLF} is to
completely prohibit (e.g., by suitable
fencing) access to the site by
unauthorized users. Minimizing the risk
of injury to users of the MSWLF,
another purpose of today's requirement,
can be met by strictly controlling
disposal on site. In areas where access
is necessary after the landfill is closed,
the owner or operator may want to
place a waste receptor just outside'the
facility for disposal of waste during
hours that the facility is closed. For the
above reasons, EPA decided to retain, in
the final rule, the proposed approach.
7. Section 25838 Run-on/Run-off
Control Systems
The proposed rule required the owner
or operator of an MSWLF to design.
construct, and maintain a run-on control
system to prevent flow onto the active
portion of the MSWLF during peak
discharge of a 25-year storm. The
purpose of the run-on standard is to
minimize the amount of surface water
entering the landfill facility. Run-on
controls prevent (1) erosion,, which may
damage the physical structure of the
landfill: (2) the surface discharge of
wastes in solution, or suspension; and (3)
the downward percolation of run-on,
through wastes, creating leachate.
The proposed rule also required that
the owner or operator of an MSWLF
design, construct, and maintain a system
to control run-off from the active portion
of the landfill. The run-off control
system must collect and control, at a
minimum, the water volume resulting
from a 24-hour, 25-year storm. Run-off
from the active portion of the unit must
be handled in accordance with § 258.27
of the proposal in order to ensure that
the CWA NPDES requirements and
CWA sections 208 and 319 requirements
are not violated. The Agency chose the
24-hour period because it is an average
that includes storma of high intensity
with short duration and storms of low
intensity with long duration.
Several commentera suggested that (1)
the run-on/run,-off control system be
required to handle a 100-year storm and
(2) the run-off be collected, sampled,
and analyzed prior to its release to
surface waters rather than after the
water is released.
In today's, final rule, the Agency
retained the language of the proposal
because EPA believes that the 25-year
storm requirement is more appropriate
than the 100-year storm requirement for
MSWLFs. The former is a more widely
used standard and is the current
standard used for hazardous waste
landfills. In addition, the Agency could
not identify any existing case studies
that challenged the Agency's
assumption that the 25-year storm
design is protective of human health and
the environment EPA has no
information that warrants a more
restrictive standard for MSWLFs than
for hazardous waste landfills.
In response to the comment regarding
testing of run-off, the Agency would like
to clarify that the proposed rule, and
today's final rule; calls for the owner OF
operator to collect and control the run-
off .from the active portion of the landfill.
It does not require that the collected
run-off be sampled or treated, but rather
that if be handled in accordance with
; the requirements of the Clean Wafer Act
including, but not Emited to, the NPDES
requirements (see 5 258.27f a}}. The
owner or operator's NPDES permit may
require the facility to sample run-off
prior to surface water release. EPA
believes that the Clean Water Act is the
appropriate mechanism for ensuring that
point source discharges are protective of
human health and the environment.
8. Section 258.27 Surface Water
Requirements
It is essential that solid waste
activities not adversely affect the
quality of the nation's surface waters.
The regulations as proposed prohibited
any MSWLF unit from (1) causing a
discharge of pollutants into waters of
the United States, including wetlands,
that violates any requirement of the
CWA, Including, but not limited1 to,
NPDES requirements; and (2) causing a
nonpoint source of pollution to the
waters of the United States, including
wetlands, that violates arty requirements
of a state-wide or area-wide water
quality management plan under section.
208 or section 319 of the CWA. The
proposed 1258.27 requirement is the
same as the surface water criterion.
currently in effect under part 257^
Commentera were concerned over the
proposed relationship between RCRA
and the CWA. One commenter
recommended that monitoring
requirements for MSWLFs be developed
either under subtitle D or under the
NPDES program and that they be
tailored for solid waste disposal
facilities. Another commenter requested
that the proposed subtitle D rules
specify requirements ta be added to
NPDES permits.
The Agency decided to retain, in the
final rule, the proposed approach. Under
section. lOOa of RCRA, EPA Is required
to integrate, to the maximumi extent
practicable, the provisions of RCRA
with other statutes, including the CWA.
Under today's approach, NPDES
requirements for landfills wil be
implemented under the NPDES
permitting program, because NPDES'
permits are site-specific and NPDES
permit writers are in the beat position to
ensure that the surface water
requirements are met for MSWLFs.
Moreover, as discussed previously,
enforcement under subtitle D is limited
to instances where EPA haa found the
State program to be inadequate. The-
CWA does not have similar limitations
on EPA's enforcement authority. Thus,
the Agency beleves that compliance
with surface wafer regulations is best
suited to mechanisms already
established under the CWA.
Under today's final regulations, any
discharge of pollutants from MSWLF
units into the waters of the United1
States must comply with regulations
developed under the CWA, including
section 402 {NPDES permits}..
Regulations that specificaHy address
compliance of MSWLF units with the
CWA will be developed under the CWA
as needed Although EPA has not yet
specifically established national limits
for discharge to surface water from
MSWLFs, discharge limits are set on a
case-by-case basis. The Agency may,
however, issue national limits for
MSWLF discharges at a later date.
A commenter requested that the
proposed regulations specify the
circumstances that trigger the Army
Corps of Engineers' jurisdiction with
regard to NPDES permits. Under section
402 of the CWA, EPA (and States
approved by EPAJ has Jurisdiction for
the discharge of all pollutants Cother.
than dredged and fill material] into
waters of the United States. Under
section, 404 of the CWA, both the Corpsi
of Engineers and EPA have Jurisdiction; .
over the discharge of dredged and fill
materials Into waters of the U-.S.
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N°'
Wednesday', "October 9, 1991 / /Rules, and Regulations 51055
The Agency retained § 258.27(b) of the,
proposed rule in the final rulemaking.
This requirement specifies that any
discharges of a nonpoint source of
pollution from an MSWLF into waters of
the United States must be in
conformance with any established water
quality management plan developed
under section 208 or section 319 of the
. CWA. . ,
9. Section 258.28 Liquids Restrictions
EPA's proposed rule prohibited the
disposal in MSWLFs of bulk or '
noncbntainerized liquid wastes, except
(1) household wastes.(other than septic
wastes) and (2) leachate and gas .
condensate that is derived from the
MSWLF unit where the unit is equipped
with a composite liner and a leachate
collection system (LCS) designed and
constructed to maintain less than 30
centimeters of leachate over the liner.
Containers of liquid waste could be
placed in MSWLFs only when the
containers (1) were small containers of
the size typically found in household
waste; (2) were designed to hold liquids
for use other than storage; or (3) held
household waste. The proposed rule
required the owner or operator to
determine if the wastes (e.g., septic
wastes, municipal wastewater sludge)
are liquid wastes by the Paint Filter
Liquids Test method (Method 9095 as
described in "Test Methods for ;
Evaluating Solid Wastes, Physical/
Chemical Methods," EPA Publication
No. SW-846). The rationale for each of
these proposed provisions is included in
the preamble to the proposed rule (see
53 FR 33340, August 30,1988).
Numerous commenters expressed
opposition to-the general concept of
restricting the amounts of liquids that
are disposed of in MSWLFs. Many
commenters believed that the proposed
restrictions would require separate
disposal facilities for liquid waste.
The Agency believes that liquids
restrictions are necessary because the
disposal of liquids into landfills can be a
significant source of leachate
generation. By restricting.the ' r
introduction of liquids into landfills
through a ban on the disposal of bulk
(except nonseptic waste from ,
households and recirculated leachate
and gas condensate at facilities that
meet the specific design requirements)
and containerized wastes, EPA expects
to minimize the leachate generation
potential of landfills. This should reduce
the quantity of free liquids to be
managed in MSWLFs, which in turn
should reduce the risk of liner failure
and subsequent contamination of the
ground water. The ban on containerized
free liquids (except those from
households) will also reduce the
problem of subsidence and possible
damage to the final coyer iipon possible
deterioration of the waste containers.
EPA does recognize that restricting
;• certain small volume liquids may be
: impractical and unnecessary to protect
human health and the environment. For
example, small amounts of liquid will be
present in household wastes when
disposed and may be difficult to
effectively identify, separate, and ..,.-'
restrict from disposal. For this reason,
the final rule exempts household waste,
except septic wastes, from the bulk and
noncontainerized liquids restrictions.
Septic waste is not'exempted because it
can be easily identified and will contain
significant amounts of liquid if it fails
the Paint Filter Liquids Test method.
As proposed, the final rule continues
to exempt certain small containers (e.g.,
beverage containers) and certain other
wastes from the containerized liquids
ban because they'are not likely to
contribute substantial amounts of
liquids to most landfills. However, the
Agency recognizes that certain small
containers (e.g., paint cans) contain
household hazardous wastes; the
Agency recommends that such wastes
be managed through household
hazardous waste collection programs
present in many communities.
Commenters suggested considering
soil, ground-water levels, climate, and
history of landfill operations to
determine if liquid wastes can be
accepted at a particular landfill without
endangering the environment or
operation of the landfill. Many
commenters believed that the State
should have more flexibility determining
whether bulk or non-containerized , '
liquids should be disposed of in
MSWLFs. -•'.:"•
The Agency does not agree with these
comments. EPA believes that the
problems associated with disposal of
bulk and containerized liquids, as
discussed above, are relevant to all
landfills regardless of location (i.e.,
climatic and geologic factors), and thus
waivers to this requirement based on
location would not be appropriate
(Reference: Background Document-
Operating Criteria).
Numerous commenters were
concerned with the practicability of
finding alternative disposal methods for
wastes such^as septic tank, grease trap, '
oily water, and sand trap wastes. EPA
believes that the 18-month period
between the promulgation date and the
effective date of the rule is adequate
time to allow liquid waste disposers to
develop alternatives to liquids disposal
in MSWLFs. However, the Agency
wishes to clarify that although liquid
materials, such as septic tank, grease
- trap, oily water and sand: trap wastes „
that fail the Paint Filter Liquids Test -
method are banned, they can be •
solidified prior to their .disposal in
MSWLFs. Possible solidification
methods include the addition of
absorbent materials. The solidified
wastes must pass'the Paint Filter
Liquids Test method. '..''•••
The Agency specifically requested in
the preamble to the proposed rule the
submittal of any data on the benefits of
effects of leachate recirculation. The
Agency received numerous differing
opinions regarding leachate
recirculation. Some commenters '
expressed support, stating that moisture
promotes the decomposition of wastes
and stabilization of the landfill and '
conserves the nutrients required for
stabilization, improves leachate quality, •
increases the quantity and'quality of
methane'production, and,decreases the
time the landfill is generating
contaminated leachate, Those 'opposed,
to leachate recirculation noted that-it
was unlikely that a collection system
could maintain a leachate head of 30-
centimeters in a humid area. They
recommended that EPA only allow,
leachate recirculation in arid locations
for which field experience' shows that
recirculation will not produce a , ;
significant leachate head within,the unit.
The Agency recognizes that landfills
are, in effect, biological systems that .
require moisture for decomposition to
occur and that this moisture promotes
decomposition 6f the wastes and •
stabilization of the landfill. Limited
studies: have indicated that leachate
recirculation has certain benefits, which
include increasing the rate of waste
stabilization, improving leachate
quality, and increasing the quantity and
quality of methane gas production.
Leachate recirculation may also be a
very useful tool for management of .
leachate (Reference: Background
Document—Operating).
On the other hand, the Agency ' , •
believes that many landfills, particularly
those in humid areas, already have
sufficient liquid for decomposition and
thus the ihtentionaladdition of liquids is
unnecessary." The wastes received at
landfills already, contain moisture (10
percent to 35 percent by volume), and
more is added by rainfall and by the
decomposition process itself. Moreover,
the Agency recognizes that potential
operational problems associated with
leachate recirculation, such as increase
in-leachate production; clogging of the
leachate collection system, buildup of,
hydraulic head within the uni,!, increase
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51056 Federal Register / VoL 58, No. 196 / Wednesday; ffi
in air emissions and odor problems, and
increase in potential of leachate
pollutant releases due to drift and/or
run-off, may result in adverse impacts
on human health and the environment.
The Agency recognizes that there are
pros and cons on the issue of leachate
recirculation and that the information on
leachate recirculation is limited in some
areas. Because the Agency has data that
indicate that there are benefits
associated with recirculating leachate,
the Agency believes that a ban on
laachate recirculation is inappropriate
(Reference: Background Document—
Operating Criteria). The Agency
believes that leachate recirculation
should only be allowed when [I)
specified design controls have been
installed at the MSWLF unit and (2}
recirculation does not produce a
significant leachate head within the unit.
The proposed rule specified that
leachate and gas condensate derived
from the MSWLF unit would be exempt
from the liquids prohibition if the unit
were equipped with a composite liner
and a leachate collection system
designed and constructed to maintain
less than 30-centimeters- of leachate over
the liner. The Agency received several
comments on the proposed design for
leachate and gas condensate
redrculation. In general, those that
commented objected to the proposed
liner requirements- for leachate
recirculation. Commenters said that the
composite liner was an unnecessary
prerequisite for the recirculation of
leachate. Several stated that liners
should not be required for all landfills,.
one commenter noting that the
composite liner described would be
difficult to construct in many areas due
to the absence of clay. Others supported
a waivec based on geology,
precipitation, evapotranspiration. use of
a leachate collection system, and
spraying patterns. One commenter
recommended that alternative designs
be considered (e.g., the use of slurry
walls).
The Agency believes that a composite
liner is necessary for leachate and gas
condensate redrcnlation. Specifically, a
composite liner with a leachate
collection system designed and
constructed to maintain less than a 3Q-
centimeter depth of leachate over the
liner ia necessary to ensure protection of
human health and the environment. The
Agency believes that the composite liner
design, which consists of a two-foot
layer of compacted soil with hydraulic
conductivity of no more than (1X10 -T)
centimeters pet second with a 30-mil
flexible membrane liner (FML)
con'ponen* installed indirect and
uniform contact above the corapacted-
soil component, provides protection;
necessary to ensure that contaminant
migration to the aquifer is controlled.
First, the FML portion of the liner Witt
increase leachate collection efficiency
and provide a more effective hydraulic
barrier. Second, the soil portion will
provide support for the FML and the
leachate collection system and act as a
back-up in the event of failure of the
FML. The composite liner with, a
leachate collection system design is the
same as that used for the uniform design
standard under § 258.40(aj of this rule.
For a detailed discussion on the
requirements and rationale for the
composite liner, see the design criteria
discussion in appendix E.
Unlike other MSWLFs, those
operating with leachate recirculation
must be designed, at a minimum, with
the composite liner described above.
The Agency considered less stringent
designs but determined that variances to
the composite design should not be
allowed, even in approved States,
because the composite design ensures
leachate collection efficiency, a
necessary component of a successful
leachate recirculation program.
Therefore, owners or operators of
MSWLFs in approved States cannot use
alternative, designs provided for in
§ 258.4O of today's rule if they wish to
recirculate leachate-.
The owner/operator must notify the
State Director that documentation of the
landfill design is located in the facility's
operating record. Today's final rule
allows the State Director to specify
alternative recordkeepinglocations and
alternative schedules for recordkeeping
and notification requirements.
Other commenters recommended use
of a double flexible membrane system
with: a leachate collection system either
beneath the bottom liner or between the
two liners in lieu of the composite liner.
Another commenter stated that, givea
the greater potential for release of liquid
from the facility, the most stringent
containment requirements should be
appEed to facilities that reckcolate
leachate.
EPA does not agree that a double
flexible membrane liner system without
a soil component would be as protective
as the composite liner* as defined., A
compacted-soil 'component is necessary
•for proper function of the FML
component. It provides support and a
back-up mechanism, in case of failure of
the FML component. The Agency also
believes that the composite liner and
leachate collection systemis the most
stringent design necessary for MSWLF
units that recirculate leachate or gas)
eondensate. The rationale foe choosing
this design is discussed in detail in •
appendix E of today's; rulemakingv .;
The proposed rule defined gas
condensate as "the liquid generated as a;
result of the gas collection and recovery
process at .the municipal solid waste
landfill units." Several commenters.
stated that it is not clear whether gas
condensate recirculation means solely
the discharge of liquid eondensate into
the refuse mass or whether it includes
the combination of the condensate and
the leachate from the leachate collection
system.
The Agency uses the term "gas
condensate recirculation" to mean the
discharge of the liquid condensate into
the refuse mass. If the, condensate is
combined into the leachate collection
system and the leachate is discharged
back into the refuse.mass, then this also
is recirculation and the necessary design
is required. In order to clarify this even
further, the Agency revisedthe
definition of gas condensate to include
only the condensate generated from the
gas recovery process and not toinclude
the condensate that Is Inadvertently
generated from the gas collection
system..
EPA received no comments supporting
a ban of gas eondensate recirculatiqn.
As a result, the Agency decided to allow
gas condensate recirculation at facilities
with the design described above
because the quantities involved are
small, and gas collection hap benefits to.
the environment through the recovery of
energy and the control of gas; migration,
10. Section 258.29 Kecardkeeping
Requirements
The proposed rule required that
information be recorded and retained by
the owner or operator of each MSWLF.
Information to be retained included:
Inspection records, training procedures',
and notification; procedures required.
under 1253.20; gas monitoring results
from monitoring required by § 25S.23;
closure and post-elosure plans as
required by § f 258.30£b} and 25&31(cl;,
and monitoring, testing', and analytical
data required by the ground-water
monitoring requirements under subpart
E. ;
Although the proposed rule specified
that certain documents; be retained!
(including ground-water monitoring*
testing, and analytical data, required by
subpart E), EPA received comments
requesting; that additional
documentation prepared by the ownes
or operator be retained. Commentera
specifically requested that
documentation concerning the siting
process design plans, and the financial
-------
rieral
status of the facility be included.
Today's-rule adds additional
recordkeeping reqairfemenls ,cfinsis;tent
with theantent of the proposed rule and
comments received. The following .
documeHts.have 'been,added to the
recordkeeping jequirements: jfkry
location .restriction demonstraMaa ,
•required sunder subpart ,Bj unit design
documentation fqrieaehate and :gas
condensate recireula%n as required
under «§258.28{aM2); aid »ny cost
estiniates and financial documentation
required by subpart G of this part.
Today's rule provides that lie
information be, maintained in an
operating,record. EPA's intent, stated in
the preamble to the proposed role, was
that the recoEdkseping documents be
kept in a single location. By requiring
the owner or operator to jceepthe
recordkeeping dacuHienif in the ....••••
operating iscord, today's finalrfe
clarifies EPA's stated intent Today's
final rnle:requires rihat'the operating
record be maintained neartJjefeEility.
The appropriate Jocation.m^S oe the
facility itself, or the corporate
headquarters .or-city hall depending on
the size »f She landfill and/oi the
ownership tof:the ilandfili^eoords
should be retained throughout the,life of
the facility, including pestclakre care.
Documents should be voipania?d, legible,
dated, -and signed by thftaftprapriate
personnel. Upon oomplepan. oleaeh
document j-equir e d in th|,Qperating -.
record, the avvner or xipeiator iftrst
notify the State Director of its existence.
This requirement applies^ owners and
operators an 'both approvs^s^
unapproved States, The Dfie^or of an
Approved State has the flsxib|ty,±o
establish alternative locations/br
recordkeeping .and alternative schedules
for recordkeeping and riglifica^ion
requirements. • *
CSommsnters iecomm£|ie4making
MSWLF records availabVto fe public,
suggesting that these data wsairelevant
for citizen enforcement. Semef
eommenters-suggested thjl ib omission
of any requirements in ^proposed :rnle
to submit data to theSOTis make
them available -to the
effexrtively Elimi
enforcemsnt of ilhe legulgiioiisJQn the
other band, another commenter
proposed that EPA allow:(3ie iJiates
more flexibility to deleiain.eiivtet
records should fee, kept sat the fecility
and made .available fcr $3o\\£, jeview.
EPA agrees that public access^>'
MSVViiF records eMier diiec%Jsm the
om'ner or 'operator cr ihres^^fi^tate is
essential Therefore, today's :5na|ule
requires -the xswmetor uperstcr to stain
the operating recorxl neat the %
and to furnish the inform'ationto the
State upon request, or to make it
. available to 'the State during treasonable -
times. The rinforma fen should he
available in most States id citizens
through a State Freedom of Information •
Act request. '" . -
Appeadix S-^Supplementai Information
for .Subpart B— Design Criteria
1, 'Qyentiewof Proposed Hole -
Section a58.40(a] -of the proposal
established a performance standard
based on risk that -would Tequire new
MS WLFs to be designed With liner
systems, leachate collection .systems
(LCSs'}, and 'final covers, &s necessary to
meet the design goal in th'e aquifer at ;the:
waste management unit boundary or an
alternative boundary, as specified by
the State. As proposed, the design goal
would be an overall, ground-water
carcinogenic risk level establisned by
the State. At a minimum, Sie design goal
under proposed '§ 25.8.40[b), would have
to fall within the protective jcisljj'ange of
1X10 ~4 to 1X1Q ~7and encompass risks
posed- by over 200 liazardoHS
constituents .listed in the .pnoposed"
To comply with the proposed • .
requirements., an owner or operator
tvouldMve to develop and propose a
design that would achieve ifhe State- /
specified design goal in the aquifer at
the waste management unit boundary or
alternatiye. boundary, iEis would
involve modeling the .release of
appendix II .constituents from the
landfill 'equipped with the proposed
design, to predict the concentration of
the various constituents iii groimtl-
v/ater, and then determining whether the
combined risks posed by Miese
constituents fell within the State-
' specified design ^oal. Under proposed
§ 258.4Q(c,], the-State would levahiate the
proposed design considering the
followong factors: -(!] .IKie hydrogeologic
characteristics of fcfaciliiy and
surrounding land, (2:) the climatic factors
of the area, -,(3) ithe volume and physical
charscteristics of the leachate, K{4) ihe
proximity to ground^w-ater, and pj the
quality of ground-wa:ter. ;
In the preamble to the ,pr.opos.ed rule,
EPA described and xequestecLcomments
' on several possible alternatives to the
proposed approach. These alternatives
include various alternative performance
standards, a uniform design 'Standard
.{with and without variances), and the
categorical approach tsee' 53 FR 33354 j
through, 33365; August 30, 1988). ;
As indicated above, Jhe Agenssy ; .
proposed *one design standard fer'new
MS WLFs that addressed &e liner and
leachate collection. systeni, as well-as
the final cover system. .In developing the
final rule, EPA determined thatit would
;; be clearer and more .appropriate to
present separate design:sequirfiments.for
the Hner/leachate collection system and "
the final coyer system dntheJirial;nile.
Each of these 'contoiriment components
play unique roles -in minimizing releases ,
from the landfill. The fineryieachate
collection system is relied on to
minimize leleases primarily during the
operating life of the MSWLF, while the
final -cover provides the primary long
term protection.aftersclosure of-the
landfill. Therefore., EPA is presenting the
requirements applicable to these
components jn separate sections of
today's rule. Specifically, the liner/
leadiajte •collection system requirements
have been;r«tained.in isubpartD, while
the final cover requirements f or jnew.aikT
existing units have been moved;to
subpart F, , „ : ,
2. Summary of Comments
'While a few,.eommenters generally
Supported the proposed :risk-based'.'
performance standard, Ihe majority of
commenters opposed it. Several
commentars argued .that this approach
failed to establish minimum -national .,
standards, while nearly all commenters
raised major concerns about the
implementation iof the proposed
approach. These concerns were
reflected not only in written comments,
but also expressed:by Slate andlocal
governments, the-waste management
industry, and «nvjronmental groups
_ during imeeMngs held with;EPA duijng
the public icomment period. Summaries
of these meetings can be found in the
docket for this .Eulemaking.,
Several Gommenters asserted that if
EPA adopted fee proposed approach it.
wouMie abdicating tthe. Agency's role
of setting mMmum:national standards.
These commeritexs ..argued that it Is
EPA'sjrole, :not the 'States', to set the
design,goal (Le,, risk .level in
groundwater) for MSWISs. Second,
many-commenters viewad the proposed
risk-based approach to foe so complBX
that it wciildiesult in inadequate
designs in;many cases. '
idommenters also Taised threa major
concemsa;bout the implementafion of
the proposed approach.First,•';.
commenters Relieved that there is .
insufficient technical information
available to 'implement a risk-based
approach. Numerous commeriters
questioned whether risk assessmerit
methodologies were ?ar«enough
developed to support fee proposed
approach. -Some commeriters strongly
criticized EPA's draft risk aigoriQim,
which EPA suggested as-a prelfimnary .;
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51058 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
tool for implementing the proposal.
Others pointed out that the lack of EPA-
approved concentration or risk levels for
many of the hazardous constituents in
proposed appendix II would make
implementation even more difficult.
Second, numerous commenters stated
that most States and owners and
operators do not have the technical
expertise or resources necessary for
successful implementation of the
proposed standard. These commenters
argued that most States do not have the
resources to establish acceptable
concentration or risk levels for
compounds that lack EPA-approved
standards, or to review designs based
on complex modeling. Other
commenters stated that owners and
operators do not have the expertise or
resources in most cases to complete
comprehensive modeling addressing all
appendix II compounds. Some
commenters indicated that local
governments would likely end up
spending an inordinate amount of their
limited resources on analysis, rather
than on actual construction of a safe
landfill.
Third, due to the complexity of the
analysis, and the lack of public
understanding of risk-based decisions,
many commenters were concerned that
it would be very difficult to obtain
public acceptance of a risk-based
design. They felt that the proposed
approach would exacerbate an already
very difficult siting process.
To address these concerns,
commenters suggested a variety of
alternative approaches. However, the
majority of commenters recommended
one of the following two alternatives for
the final design criteria. The first major
alternative suggested was the
categorical approach, which would
establish different design requirements
for MSWLFs in four location categories
that would be distinguished based on
two factors—the hydrogeology of the
location (measured in terms of time of
travel to the aquifer) and precipitation.
Numerous commenters liked this general
approach of setting forth different
national standards for different
locations, but all recognized that certain
modifications were needed to address
deficiencies in the specific scheme
proposed. However, the types of
modifications suggested varied
significantly and no commenter
provided a fully developed alternative
scheme. Nevertheless, these
commenters believed a somewhat
modified categorical approach would be •
flexible, yet provide more certainty and
be easier to implement than the
proposed risk-based approach.
Some commenters, on the other hand,
objected to the categorical approach,
stating that it was technically and
conceptually flawed. These commenters
argued that the approach is overly
simplified and not technically justified.
Of particular qoncern to these
commenters is the reliance on only two
factors—hydrogeology and
precipitation—to distinguish location
categories, as well as the unjustified cut-
off values specified for each of the
factors. Others pointed out that it is
often very difficult and expensive to
obtain reliable data needed to calculate
these factors. These commenters,
suggested that EPA drastically revise
the categorical approach or adopt the
alternative described below.
The second major approach suggested
by commenters included two elements—
a uniform design standard and some
provision allowing other designs based
on site-specific conditions. Commenters
differed significantly, however, on the
stringency of each of these elements. For
example, the uniform designs suggested
varied from one identical to that
required for hazardous waste disposal
facilities under subtitle C of RCRA to
one consisting of a single liner of either
natural or artificial material with a
1X10 ~7 hydraulic conductivity and a
leachate collection system. With regard
to site-specific designs, some
commenters argued that these should be
limited to those that provide protection
"equivalent to" the uniform design.
However, others envisioned a more
flexible approach that allowed site-
specific designs that met a clearly
specified environmental performance
standard.
3, Evaluation of Proposal and
Alternatives
In reviewing the alternatives
suggested by commenters, it was clear
that all preferred an approach that
would (1) provide certainty and public
acceptability, (2) include flexibility for
variation based on site-specific
conditions, and (3] be implementable,
considering the availability of technical
information and the technical expertise
and resources of local and State
governments. As a result, EPA
considered each of these factors in
evaluating the proposed rule and each of
the alternatives suggested by
commenters.
EPA carefully reevaluated the
proposed risk-based approach in light of
the comments described above. The
Agency disagrees with commenters'
arguments that EPA would fail to
establish minimum national standards
for MSWLFs if the proposed approach
was adopted. The proposed approach
would establish a national framework
with substantial State flexibility to
address site-specific conditions. EPA
continues to believe that sufficient
flexibility is essential for effective
program implementation across the
nation. However, EPA does agree with
commenters' concern that it may be
difficult to obtain public acceptance of a
risk-based design, resulting in increased
siting difficulties. Furthermore, EPA
recognizes that many States and local
governments do not have adequate
technical expertise and resources to
implement the proposed approach.
Specifically, most States do not have the
resources to establish risk levels for the
large number of compounds that do not
have EPA-approved standards, and
most local governments and States do
not have adequate resources to
complete and review the complex
analysis necessary to implement the
risk-based approach. Therefore, the
Agency rejected the proposed risk-'
based performance standard.
EPA then evaluated the two major .
alternatives discussed in the proposed
rule and addressed by commenters (53
FR 33355). In examining the first
alternative, the categorical approach,
EPA carefully reviewed the
modifications suggested by those who
favored the general approach as well as -
the data and arguments presented by
commenters who criticized the
approach. In response to commenters'
concerns, EPA looked closely at the
technical adequacy of the categorical
scheme, particularly the technical basis
for the two factors (i.e., hydrogeology
and precipitation) used to distinguish
the location categories.
Based on this re-examination, the
Agency acknowledges that it has
inadequate technical information to
support the methodology used to
measure the hydrogeologic character of
a site (i.e., the time of travel equation),
as well as the specific cutoff values
specified for the two factors (53 FR
33364). In addition, no commenters
presented modifications that would
address these technical concerns.
Therefore, while EPA believes a
categorical approach theoretically could
provide both certainty and flexibility,
the Agency rejected this alternative for
the final rule because of the technical
problems inherent in such a scheme.
The second major alternative
examined by EPA was a uniform design
standard in combination with a
provision allowing alternative designs
based on site-specific conditions. While
the stringency of this approach varies
depending on the uniform design
specified as well as the structure of the
-------
51058
site-specific design provision, EPA
believes this .general approach best
addresses the concerns raised by
commenters. First, this approach
provides more -certainty to address
public concerns 'during the -siting
process. Second, -it-provides flexibility
by allowing designs -based the risk-
based approach, which ireqmred States
with IhTtiiEdtechnicalTesourees to
estaWsh risk-based designs. • •
Although-today's final standard is
limited to MCL'-s, it Is backed tip by
ground-water monitoring and corrective
action provisions-that address a
comprehensive'set-of compounds
comparable to the proposal. Appendix F
contains fee rationale for this
comprehensive .set of co.nstituehts for
ground-water monitoring and corrective
action. Specifically, •§ 258.'56Ia3flf
today's-rule requires .that whenever '
monitoring results indicate a,
statisticalif .significant level,of any
appendix Hconstituent exceeding the
ground-water protection standard., the
owner or operator must initiate an
assessment of corrective ac'tion
remedies. This back-up system ensures
that designs provide effective protection
of human health and the -environment.
The Agency acknowledges that
implementation .of this final design
provision will .still inquire modeling and
associatedianalysis! Toaddress .
commeiiteisj sconcerns regarding the
availaMityof technical information.on
this subject, EPA is developing technical
guidance,on modehaig-for inclusion in ,
the technical guidance for thisuule (see
section VJS. of today's preamblej. In
addition, to ensure jp/roper'oversight and
-------
51060 Federal Register / Vol. 56, No. 196 / Wednesday. October 9. 1991.,
Kegulationg
review of these analyses, today's rule
requires that site-specific designs based
on the performance standard be
approved by approved States. Thus,
owners and operators of MSWLFs
located in unapproved States will not
have the opportunity to use site-specific
designs, but rather must comply with the
uniform composite liner requirement
discussed below. EPA believes that
these two steps will ensure proper
analysis and implementation of today's
site-specific design provision.
Approved States must consider three
factors in determining xvhether the
design meets the performance standard
of § 258.40{a)(l). These factors include:
(1) The hydrogeologic characteristics of
the facility and the surrounding land; (2)
the climate of the area; and (3) the
volume and physical and chemical
characteristics of the leachate. The
Agency believes that these factors,
which are derived from those proposed
for use with the risk-based standard, are
relevant and important for evaluating
designs because they all influence the
nature and extent of releases to ground
water. Guidance on consideration of
these factors in landfill design will be
included in the technical guidance for
today's rule.
EPA is concerned that certain owner/
operators of new units or lateral
expansions may be forced to use the
design standard in § 258.40(a)(2),
discussed below, in situations where the
composite liner specified in that section
is not necessary to protect human health
and the environment if their State does
not have program approval. In these
cases, the performance standard under
| 258.40(a)(l) may be more appropriate
since it would potentially avoid an
unnecessarily stringent design.
Therefore, EPA established a petition
process in § 258.40(e). This process
allows the owner/operator to use the
performance standard in § 258.40(a)fl) if
the State determines that the owner/
operators design meets that
performance standard, the State
petitions EPA to review its
determination, and EPA approves the
design. EPA will act on these petitions
within 30 days of receipt. v
b. Uniform Design
The second element of today's design
criteria is a uniform design standard for
landfill designs in States without
approved programs. In selecting a
uniform design, EPA's goal was to
identify one that would provide
adequate protection in all locations,
including poor locations. In the
preamble to the proposal, EPA
requested comment on a uniform design
approach that would consist of a
composite liner and leachate collection
system. The suggested composite liner
system consisted of an upper flexible
membrane liner and a lower soil layer at
least three feet thick with a hydraulic
conductivity of no more than 1X10"7
cm/sep. The leachate collection system
would need to be constructed to
maintain less than 30 cm depth of
leachate over the liner. EPA considered
comments on this design in selecting
today's final approach.
Commenters .suggested a variety of
uniform designs. These suggestions
included (1) double liner systems
identical to those required for hazardous
waste disposal facilities under subtitle C
of RCRA, (2) composite liner system
similar to that described above, and (3)
a single liner of either natural or
artificial material with a hydraulic
conductivity of no more than 1X10"7
cm/sec. In addition, commenters
suggested a composite liner system for
MSWLFs located in Category IV (poor
locations) under the categorical scheme.
While EPA recognizes that subtitle C
double liner systems would provide
added protection, EPA's Regulatory
Impact Analysis (see section III.B of
today's preamble) indicates that
requiring such systems at all new
MSWLFs and lateral expansions would
impose high costs on communities, and
would contribute significantly to causing
today's set of final-requirements to be
beyond the practicable capability of
owners and operators. For a typical
MSWLF, EPA estimates that a subtitle C
liner system would cost nearly 75
percent more than a composite liner
system.- Therefore, the Agency rejected
the subtitle C design approach for
MSWLFs.
EPA also rejected the third option
suggested (i.e., single liner) because the
Agency believes 'that both a flexible
membrane liner (FML) and a compacted
soil component are necessary to ensure
adequate protection in poor locations.
(Of course, in good locations, such
alternative designs may meet today's
performance criteria described below.)
The upper FML component provides a
highly impermeable layer to maximize
leachate collection and removal, while
the lower soil component serves as a
back up in the event of FML liner failure.
The Agency believes the second
option, a composite liner system,
encompasses the essential components
for a protective uniform design standard
for MSWLFs. Today's final rule adopts
the system described by EPA in the
preamble to the proposed rule with two
modifications. First, today's rule
clarifies that the FML must have a
minimum thickness of-30-mil, or if high
density polyethylene (HDPE) is used, a
minimum thickness of 60 mil. Based on
EPA's experience with these liner
materials, these are the minimum
thicknesses necessary to ensure
adequate liner performance, including
being able to withstand the stress of
construction and to ensure that
adequate seams can be made (see U.S.
EPA, RREL, Lining of Waste
Containment and Other Impoundment
Facilities. EPA/600/2-88/052. September
1988).
Second, today's rule specifies a
minimum lower soil component
thickness of two feet rather than three
feet, which is required for hazardous
waste disposal facilities. The Agency's
most recent data indicate: (1) With
sound construction practices, a two foot
thick soil liner can be .constructed with a
hydraulic conductivity of 1X 10~7 cm/
sec; (2) soil liners less than two feet
thick have a high probability of having a
hydraulic conductivity greater than
IX10"7 cm/sec.; and (3) for composite
liners, an extra foot of thickness (i.e.,
three foot versus two foot thickness)
generally provides little improvement in
liner performance, but may be
appropriate to add as a "factor of
safety" in certain cases, (see Note on
Thickness of Compacted Soil Liners,
Daniel, D.E., April 9,1990).
EPA believes that requiring this
"factor of safety" is appropriate as part
of the liner system for hazardous waste;
disposal facilities, but not for MSWLFs.
In comparison to hazardous waste
disposal facilities, MSWLFs are located
and needed in every region of the
country. In some of these locations, clay
materials for a soil liner are unavailable
locally and must be shipped in from long
distances. In many cases, shipping these
materials in is very expensive for the
community. While these communities
will have the opportunity to use a site-
specific design, as described above,
increasing the thickness of the soil
component of the composite liner would
likely make the composite liner option
prohibitively expensive for these
communities. Even assuming minimal
shipping costs, EPA estimates that
requiring an additional one foot "factor
of safety" would increase the cost of a
composite liner for a typical MSWLF by
nearly 25 percent. Given the unique
characteristics of MSWLFs, EPA
believes a two foot minimum soil layer
provides the best balance between
protection of human health and the
environment and the practicable
capabilities of MSWLF owners and
operators.
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Federal Register / Vol. ,56, No. 196 /Wednesday, October 9, 1991- /• Rules arid Regulations 51061 •
Appendix F—Supplemental Information
for Subpart E—Ground-Water
Monitoring and Corrective Action
1. Section.258.50 Applicability
a. Suspension of Ground-Water
Monitoring Requirements
Today's final ground-water monitoring
and corrective action requirements
apply to the owners and operators of all
new and existing MSWLFs that.do not
qualify for the small community
exemption. However, the Agency
recognizes that certain hydrogeologic
settings may preclude the migration of
hazardous constituents from MSWLFs to
ground-water resources. In the preamble
to the proposed rule, the Agency stated
that requiring ground-water monitoring
in these, settings would place an
additional financial burden on owners
and operators and would provide little
or no additional protection to human
health and the environment. Therefore,
the proposed rule allowed suspension of
ground-water monitoring requirements
in §§258.51 through 258.55 for a MSWLF
unit upon demonstration by the1 owner
or operator that there is no potential for
migration of hazardous constituents •
from the landfill unit to the uppermost
aquifer during the active life, closure, or
post-closure periods. The proposed rule
required that the demonstration be
certified by a qualified geologist or
geotechnical engineer., '.-
The Agency received a few comments
regarding the practicality of the waiver.
Commenters noted that it would be
virtually impossible and/or very
expensive to make the demonstration of
no potential for migration. Several
commenters also questioned the
meaning of the words "no potential for
migration" in § 258.50(b). Many felt that
a change in the wording of the rule is
necessary because, if strictly
interpreted, it is impossible to ;
demonstrate "no potential" for
migration. . :
The Agency agrees with the
commenters that it will be difficult for
many facilities to meet the "no potential
for migration" standard hi the
regulations though it does not agree that
it is impossible. The Agency reminds
commenters that the "no migration"
waiver has been a component of the
subtitle C groundwater monitoring
program for many years. The_Agency
stresses that the suspension of
monitoring requirements is intfmded
only for those MSWLFs that are located
in hydrogeologic settings in which
hazardous constituents will not migrate
to ground water during the active life of
the unit, closure, and post^clpsiire
periods. As stated in the proposal, the
Agency believes" that these cases will be
rare. The Agency also understands that
the demonstration of no potential for
migration may be difficult and costly
because of the high degree of confidence
necessary in the demonstration before
an exemption Will be allowed. EPA
encourages MSWUJ owners and
operators to carefully consider their
chances to obtain a suspension before
attempting-such a demonstration.
Other commenters suggested that the
Agency consider limiting the stringency
and term of the suspension so that an
MSWLF owner or operator would have
to make periodic demonstrations to
retain the suspension. The Agency
decided against limiting the term of the
monitoring suspension by requiring
periodic demonstrations every five or
ten years. EPA believes that periodic
demonstrations are not necessary
because the demonstration required
under this program must be so rigorous
that no potential for migration is
ensured for the active life plus the
closure, and post-closure periods.
Additionally, the Agency believes that :
the costs associated with continual re-
application for the suspension would
outweigh the benefits associated with it.
Several commenters requested that
EPA establish additional conditions
under which ground-water monitoring
would be unnecessary or under which a
suspension of ground-water monitoring
requirements is warranted. These •
commenters suggested the following
additional conditions be included: (1) .
Remote areas, including areas where
there is great distance to (drinking]
water wells; (2] extremely dry areas
with little rainfall and great depths to
ground water; (3) areas where ground
water is not potable, is unusable, is of
low value, or. is classified as class III
ground water; (4) areas underlain by
unfractured bedrock or by thick sections
of impermeable or slightly permeable
soils or geologic materials; (5) areas
where travel time calculations indicate
little or no threat to human health or the
environment; and (6) aquifers lacking
reasonable quantity or recharge
characteristics rendering any potential
use unlikely.
The Agency considered these
comments and believes that owners and
operators of MSWLFs with some of the
specified conditions, such as extremely
dry areas or slow time of travel areas,
might be able to demonstrate no
potential for migration under § 258.50(b).
However, EPA does not believe that the
current ground water quality or
potential future use of water is an
appropriate factor for consideration in
*: granting exemptions from 'ground water
monitoring. EPA believes it is important
to monitor for contamination at the
relevant point of compliance regardless
of the quality or anticipated future use
of the ground water. Such
considerations are more appropriately
factored into determining the
appropriate frequency'of monitoring and
the proper levels and schedule for
remedy implementation for ground •
water cleanup or whether clean up
requirements should be waived by an ~
approved State (found in § 258.57).
Furthermore, HSWA requires EPA to
include in the revisions to section 4010
guidelines for ground-water monitoring, :
as necessary, to detect contamination.
Therefore, today's final rule does not
provide for waivers from ground-water
monitoring requirements except where
the owner or operator in an approved
State can demonstrate no potential for
migration of hazardous constituents to
the uppermost aquifer during the active
life of the unit, closure, or post-closure
periods. .;, " :
After consideration of the above
comments, the Agency decided to
promulgate § 258.50(b), as proposed,
with four modifications. First, the
suspension of ground-water monitoring .
requirements in §§258.51 through 258.55
is available only for owners and
operators of landfills located in
approved States. Owners and operators
of MSWLFs not located,in approved
States will not be eligible for this waiver
and will be required to/comply -with all
ground-water monitoring requirements.
The Agency has limited the availability
of the waiver to approved States -
because the Agency recognizes the need
for the State to review a no-migration
demonstration prior to granting a waiver
from ground-water monitoring.
Second, in response to comments
discusse'd below, the fina} rule requires
demonstrations of no potential for
migration to be supported by both site-
specific data and predictions that
maximize "contaminant migration. The
proposed rule required that the
demonstration of no potential for
migration be based on site-specific
hydrogeologic information or, if detailed
data were unavailable, the owner or
operator could make the demonstration
based solely on predictions using-
assumptions that maximize the rate of
hazardous constituent migration.
Two cominenters'objected to the use
of predictions in establishing the
demonstration of no potential for
migration. Both corrimenters remarked
that the suspension should not be
allowed iisite-specific data was not
available.'One commenter added that
site-specific data must be used in a
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51062 Federal Register / Vol. 56, No. 196 / Wednesday. October 9, 1991 / Rules and Regulations
water balance or recharge model to
determine the potential for migration of
hazardous constituents. The Agency
agrees with the commenters and is
requiring in today's final rule that the
demonstration of no potential for
migration be based on actual field data
collected at the site. Field testing is
necessary to establish the site's
hydrogeological characteristics and
should include an evaluation of
unsaturaled and saturated zone
characteristics to ascertain the flow rate
and pathway by which contaminants
will migrate to ground water.
The Agency also agrees with the
commenter that modeling is useful for
assessing and verifying the potential for
migration of hazardous constituents.
Furthermore, the Agency believes that
Eredictions [i.e., models) should be
ased on actual field collected data to
adequately predict potential ground-
water contamination. Therefore, today's
final rule requires the owner or operator
to use both field collected data and
predictions that maximize contaminant
migration for demonstrating no potential
for migration.
Another commenter remarked that the
term "adequate margin of safety" in the
proposed rule-is too subjective. Because
the final rule requires predictions that
maximize contaminant migration in all
demonstrations, the term "adequate
margin of safety" is unnecessary. The
Agency believes that using predictions
or models that maximize contaminant
migration and consider impacts on
human health and the environment will,
in itself, provide an adequate margin of
safety in protecting human health and
the environment. Therefore, the Agency
has deleted this phrase from today/s
final rule.
Third, today's final rule requires no
potential for migration demonstrations
to be certified by a "qualified ground-
water scientist and approved by the
Director of an approved State." The
proposed rule required the
demonstration, to be certified by a
"qualified geologist or geotechnical
engineer." Comments received and the
Agency's rational for the final provision
are discussed later in the preamble.
In summary, today's final rule allows
an approved State to suspend ground-
water monitoring requirements
CIS 258.51 through 258.55) if the owner
or operator can demonstrate that there,
is no potential foe migration, of
hazardous constituents from that unit to.
the- uppermost aquifer during the active
life o£ ths unit Including the closure and
the post^doaureperJods»ThIa
demonstration must be certified by a :
qualified ground-water adenffst and be
based on stta-apecific, field collected
measurements, sampling, and analysis
of physical, chemical, .and biological
processes affecting contaminant fate
and transport^The demonstration also
must include contaminant fate and
transport predictions that maximize
contaminant migration and consider
impacts on human health and the
environment. Procedures for conducting
these evaluations can be found in the
OSWER Ground-Water Monitoring
Guidance Document for Owners and
Operators of Interim Status Facilities
(1983).
b. Compliance Schedule
As a result of shortages in qualified
technical personnel and licensed drilling
companies, the Agency proposed to
gradually phase in the requirements to
ease the burden of installing ground-
water monitoring systems at all new and
existing MSWLFs. In the proposed rule,
the Agency allowed States to set a
compliance schedule for installing
ground-water monitoring systems at
existing facilities and provided a "fall-
back" schedule for States choosing not
to set a schedule. The fall-back schedule
was based on distance to the nearest
drinking water intake. For States
choosing to set a schedule, the Agency
set requirements for the percentage of
units that had to be in compliance.
These requirements were: (1) Within
two years—25 percent of the units had
to be in compliance^ (2) within three
years—50 percent of the units had to be
in compliance; (3) within four years-^-75
percent of the units had to be in
compliance; and (4.) all units had to be in
compliance within, five years. States
were to set schedules to meet these
requirements based OR the potential
risks posed by facilities after evaluating
the proximity of human and
environment receptors, design of the
unit, age of the unit, and resource value
of the underlying aquifer.
The Agency received several
comments in favor of the five year phase
in. One commenter in particular, noted
that in addition to the technical;
demands placed on hydrpgeologists and
drilling companies by the subtitle D
program, other regulatory programs
(CERCLA, State clean-up programs, the
Underground Storage Tankprogram,
and RCRA's subtitle C monitoring and
corrective action program) also will
significantly impact the- availability of
competent consultants. This same
commenter requested that the phase in
period.be extended to ten years.
Another commenter, though.
understanding of the constraints
imposed by'the availability; of
competent hydrogeologista,and drilling;'
companies,, was opposed to &e length, of
the Agency's schedule, but did not
suggest an alternative. The Agency also
received a few comments opposing the
phase in period. These commenters
believe that a phase in period will allow
facilities to delay installation of ground-
water monitoring systems without
justification.
In response to these commenters, EPA
carefully reevaluated the five year
phase-in period for ground-wafer
monitoring to determine if it was
appropriate and necessary. In EPA's
Reporfto Congress on solid waste
disposal (1980), it was reported that
approximately 19 percent of the existing
landfills monitor ground wafer. This
means that approximately 4,800 of the
nearly 6000 existing landfills will need
to install ground-water monitoring
systems for the first time. The Agency
recognizes that installing new
groundwater monitoring systems will
take time, especially since the pool of
available, qualified ground-water
scientists is limited. Assessing site-
specific hydrogeolpgic conditions and
preparing a hydrogeological report with
findings and recommendations must be
completed before well construction can
begin.
The Agency estimated that there are
currently :271 firms "certified" (National
Water Well Association certification) to
install ground-water monitoring wells. If.
each of these 271 drilling firms can
install monitoring wells at 18 of 4800
MSWLFs and if, for example, four
monitoring wells are installed at each
MSWLF (however, many more may be
needed), each of the drilling contractors
will install 72 wells. Again, EPA realizes
that drilling firms vary widely in size, in
their ability to accept additional work,
and hi their capacity and desire to grow.
EPA also realizes that drilling firms and
MSWEFs are not evenly distributed ;
across geographical areas. However, in
estimating the amount of time it would
take for the 271 drilling firms to install
the minimum, number of monitoring
wells at all 4800 facilities, EPA decided
that an average of 72 wells, per drilling
firm was a reasonable estimate.
EPA estimated thetimeit would take
for one firm to install 72 monitoring
wells for each, of three .different size
drilling firms.EPA assumed, for each
firm size, that each drilling firm
currently has the capacity to .install
additional monitoring wells above and
beyond its current demand.'.EPA then '
assumed that;ia the first year.after
publication iof today's, final rule, all of
the drilling firms' additional: capacity is
dedicated to installing monitoring; well*
for the MaWLFprQgrain.£PA then -. • ';\
assumed thaWn.eacfe of the foBoyyfng
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Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations 51083
years, the total number of wells that a
drilling firm can install increases by ten
percent over current-capacity. E!PA also
assumed that after the first year, one .
half of this additional capacity will be
used to install wells at MSWLFs.
. Given, these assumptions, EPA then
estimated the time needed for each of
the three different sized firms to install
72 monitoring wells. .A firm that is
currently installing 2400 monitoring
wells a year and has additional capacity
to install 20 percent more wells, 'will
require less than one year to install 72
wells; a firm that is currently installing
35 monitoring wells a year, with
additional-capacity to install 80 percent
more wells, will also require less than a
year to install 72 wells; ho.wever, a firm
that is installing 150 monitoring wells a
year and has no additional capacity will
require over four years to Install 72
monitoring wells.
In addition to this varying capacity of
drilling firms, it is also the^gency's
experience that it may take more than
six months for a facility owner or
operator to retain a qualified
hydrogeologist and drilling firm,
implement initial site characterization
activities, draft plans and implement
final drilling programs, perform site
characterization activities, and prepare
sampling and analysis plans. Based on
the Agency's evaluation of each of the
considerations presented above, the
Agency concludes that approximately
five years will be necessary for thg
installation of ground-wat|r monitoring
systems at all landfills.
Commenters requested both longer
and shorter compliance schedules and
noted that the proposal was unclear as
to whether the compliance schedule
started on the date of publjcafon or the,
effective date. This woukfyield either a -
five year or a six and half year time for
compliance. The above analysis
indicates that the shorter schedule (i.e.,
a five year compliance schedule
beginning at the date of publication) is
• feasible. Therefore, the Agwcvcy has
clarified in today's rule that the five
year compliance schedule for installing
ground-water monitoring systems begins
on the date of publication (i.e., today's
date). .'•-.,.-
As part of the self-implementing ;
approach in today's final rile, the
Agency is promulgating a set
compliance schedule for the phase-in-
while still allowing approved States to
implement an alternative schedule:
Within five years of the publication date
of today's final rule,'all existing units
, must be in compliance with ground-
water monitoring requiremeri ta'Ne w
units must comply with the ground-
water monitoring requirements before
accepting waste because the need for
ground-water monitoring systems can be
anticipated in the planning process.
Owners and operators of existing units,
and lateral expansions of existing units,
are required to comply with; the ground-
water monitoring requirements
according to the following schedule: (1)
Less than one mile from a drinking
water intake—within three years; (2)
greater than one mile but less than two
miles—-within four years; (3) greater
than two miles—within five years.
While this method does not assess the
risk of individual landfills, it is.objective
and it will be easy for owners and
operators to determine. This schedule
was originally proposed as a "fall-back"
schedule if a State chose not to set a
; compliance schedule.
In general, lateral expansions must
meet the requirements of today's final
rule (e.g., ground-water monitoring,
liner, and leachate collection system)
prior to acceptance of waste into the
unit. The Agency is allowing ground-
water monitoring requirements to be
phased-in at existing units because of
the lack of qualified drilling firms and
hydrogeologists. For this same reason,
the Agency believes ground-water
monitoring at lateral expansions must
also be phased in. Therefore, the Agency
has decided to also phase-in the ground-
water monitoring requirements for
lateral expansions of existing units on
the same schedule as the existing unit.
Furthermore, the Agency believes that
Congress has expressed a desire to
avert serious disruptions of the solid
waste disposal industry; The Agency
believes that disruptions in solid waste.
disposal could occur if existing units
qannot laterally expand until ground-
water monitoring systems are in place,
limiting the much heeded capacity •
created by lateral expansions. The
Agency "also recognizes that it is more
practical to design one system
encompassing both the existing unit and
the lateral expansion. This approach
will allow the owner or operator to
utilize all of the information generated
during site characterization and design a
ground-water monitoring system in view
of all of the conditions that exist at the
facility.
As discussed earlier in the preamble,
the Agency has chosen 24 months from
today as the effective date for most of
the standards promulgated. However, in
one departure from the 24 month
effective date, EPA is promulgating a. -,
phase-in of the ground-water monitoring
requirements over a five-year time ,
period beginning on the date of rule
publication.
The statutory language authorizing the
promulgation of revised criteria; for
subtitle D facilities receiving household
hazardous and small quantity generator
wastes does not specify an effective
date. Thus, the Agency believes that is
has broad discretion in determining the,
most appropriate effective date for
different provisions of the revised
criteria.'Congress, in the legislative
history to subtitle D, recognized that
many facilities subject to the revised
criteria may have difficulty meeting all
requirements by a particular compliance,
date due to the "practicable
capabilities" of facilities, which EPA has
interpreted to refer to cost and technical
considerations. Thus the legislative
history explicitly suggests that EPA
phase-in the revised criteria over time.
During floor debate, Senator Randolph
stated, "Requirements imposed on •
facilities; may vary from those for
subtitle C facilities, however, and still
meet this standard (protection of human
health arid the environment). They may
be phased in over time, as the
Administrator deems appropriate, to
take account of the-practicable -
capability of the facilities covered." 130
Cong. Rec. S13814 (October 5,1984).
While the Agency also recognizes that
the legislative history indicates that
Congress did not favor the phase-in of
the ground-water monitoring
requirements, it does not view this as a
bar to such a phase-in. First, this
indication is limited to the legislative
history. The legislative history on this
issue also is found in remarks by
Senator Randolph, where he stated,
"The Administrator could phase in new
requirements other than ground-water
monitoring and corrective action over
time."/cf. The statutory language,
however, does not contain any language
that would prevent the Agency from
phasing in the ground-water monitoring
requirements. Second, this statement in
the legislative history must be read in
the context of Congress' general
approval of a phase-in of the revised
criteria where the "practicable
capabilities" of the owners and
operators is at issue. Finally, the facts
motivating the Agency to phase-in the
ground-water monitoring requirements
must be considered. As explained
earlier, considering the substantial
number of MSWLFs that need to have
wells installed and the estimated
number of firms capable in installing
ground-water wells, EPA believes that it
is physically impossible for all wells to
be installed at all MSWLFs by the . .
effective date: of today's rule.
As discussed earlier, the proposed
rule provided targets and evaluation
•factors, for States choosing to set
compliance schedules. One cbmmenter
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51064 Federal Register / VoL 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
requested that the Agency provide more
flexibility to States in setting a
compliance schedule. Another
commentcr noted that the five year
schedule does not provide States any
support to achieving compliance at
MSWLFs that do not.meet current State
ground-water standards. The commenter
requested that the rule direct a more
aggressive compliance schedule and
refer to more stringent State rules where
they apply. The Agency also received
comments on the methodology to be
used by States in setting facility
compliance schedules for implementing
monitoring programs. One commenter
remarked that States should set
priorities by relying upon the categorical
location criteria {precipitation and time
of 'ravel) as well as the factors for
identifying risk [e.g., characteristics of
the leachate, designations of local water
use, documented adverse impacts, and
use of containment and mitigation
technology). The commenter also
suggested that special emphasis be
placed on the DRASTIC index score, a
standardized system for evaluating
ground-water pollution potential using
hydrogeologic settings. Similarly,
another commenter suggested that
schedules be based on a risk assessment
of facilities focusing on an analysis of
key pathways to sensitive receptors and
activities (i.e., drinking water sources;
exposed populations; sensitive biologic
communities; and past, current, and
future use of the site and adjacent
property).
In response to comments requesting
more flexibility for States, today's final
rule allows approved States to establish
an alternative compliance schedule for
phasing hi the ground-water monitoring
requirements at existing units and
lateral expansions of existing units.
These alternative schedules must ensure
that 50 percent of all existing units are in
compliance within three years and all
existing units are in compliance within
five years. In setting an alternative
compliance schedule approved States
must consider the potential risks posed
by each facility to human health and the
environment based on the factors
specified in § 258.50(d). This approach,
for approved States is consistent with
the proposal except that the Agency has
deleted the interim requirements of 25
percent compliance within two years
and 75 percent compliance within four
years. These interim milestones were
dropped in response to commenters
request for additional State flexibility on
this issue. Though these two interim
requirements have not been included in
today's final rule, the Agency does not
believe that any adverse impacts to
human health and the environment will
result The final rule also allows
approved States to set alternative
recordkeeping locations and alternative
schedules for recordkeeping and
notification requirements.
In considering the request for more
aggressive compliance schedules, the
Agency notes that States are not
precluded by this section from requiring
installation of ground-water monitoring
systems on a faster schedule.
The Agency considered the
commenter's request to use DRASTIC
scores, but believes that States may not
have all the information readily
available to score facilities. DRASTIC'is
a method used for systematically
evaluating and numerically scoring the
ground-water pollution potential of any
hydrogeologic setting in the United
States. Scores are based on ratings of
the following factors: Depth to water,
net recharge, aquifer media, soil media,
topography, impact of vadose zone
media, and hydraulic conductivity. The
purpose Of the factors to assess relative
risk is to allow for;quicker installation of
monitoring systems at those facilities
that pose the greatest risks to human
health and the environment. The Agency
does not believe that a full
hydrogeologic assessment is necessary
to rank facilities, -and therefore, has not
adopted the use of DRASTIC into
today's final rule.
The Agency considered the other risk
factors suggested by commenters and
believes that the majority-of the specific
factors suggested by commenters fall
into the broader categories proposed by
the Agency. For example, designations
of locaTwater use and drinking water
sources could be considered part of the
resource value of the aquifer. Similarly,
exposed population and sensitive
biologic communities fall under the first
factor, proximity of human and
environmental receptors. The Agency
does not believe that requiring
information on the additional suggested
factors will enable approved States to
more accurately assess relative risks
posed by facilities. For this reason, the
Agency believes that the factors
provided in today's final rule,
(§ 258.50{d))r.are sufficient for assessing
risks posed by facilities. These factors
include: (1) Proximity of human and
environmental receptors; [2) design of
the unit; (3) age of the unit; (4) the size of
the unit; and (5) resource value of the
underlying aquifer including [i) current
and future uses; pi), proximity and
withdrawal rate of users; and (iii)
ground-water,quality and quantity. This
list is the same as .that originally .
proposed except for the addition of two
factors: (1) Waste types and quantities,
including sewage sludge and (2) unit
size. .
Waste type and quantity, including
sewage sludge, was added as an
additional factor because commenters
suggested that waste characteristics
may be an important factor in assessing
the potential risk of a facility. Size was
added as a factor for consideration in
today's final rule because of the
comments received requesting relief for
small communities. As discussed earlier
in the preamble, the Agency has allowed
approved States the discretion to
exempt owners and operators of small
landfills from the ground-water
monitoring and corrective action
requirements as long as certain
conditions are met
However, the Agency'understands
that many small communities not
meeting the criteria defining small
communities in today's final rule may
need more time to locate expertise and
acquire funding for installation of
ground-water monitoring systems.
Therefore, the Agency is allowing
approved States to consider the impacts
to small communities during the phase
in period. Approved States may
establish lower priorities for small ••
communities by applying the criteria set
forth in §§ 258:50 {d)(l), [d)t4), and
(d)(5)pi). These are the risk factors
considering the proximity of human and
environmental receptors, the size of the
unit, and the proximity and withdrawal
rate of users. Approved States will
always have the option, however, to
immediately address those MSWLFs
with environmental problems that are
serving small communities.
c. Professional Certification
The proposed rule required that the
owner or operator obtain certification
from an independent professional .in at
least two instances: The demonstration
of no potential for migration (by a
qualified geologist or .geoteehnical
engineer) and certification of remedy
completion [an independent
professional skilled in the Appropriate
technical discipline). Because the
Agency is providing for self-
implementation of many portions -of
today's final rule, the Agency believes it
is necessary to have an independent
party review, and certify certain other
programs or demonstrations required by
today's final rule. As one commenter
noted, few owners and operators of
MSWLFs have the technical capability
to comply with the proposed ground-
water monitoring and corrective action ,
requirements without the support of
professional'hydrogeolqgie consultants
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Federal Register / Vol. 56, No.:196 / Wednesday, October 9, 1991 / Rules and Regulations 5106S
Therefore, five provisions of today's
final rule require certification by an
independent, qualified ground-water :
scientist: (1) No potential for migration
demonstration (§ 258,50[b)J; (2) number,
spacing, and depths of monitoring
systems (§ 258.51(d)); (3) determination
that contamination was caused by
another source or that statistically
significant increase resulted from an
error in sampling, analysis, or
evaluation (§§258.54(c)(3) and
258.55(h)(2)); (4) determination that
compliance with a remedy requirement
is not technically practicable . •
(§ 258.58(c)(l)); and (5) completion of
remedy (§ 258.58(fJ). . -
EPA recognizes that approved States
may have hydrogeolqgists fully capable
of reviewing and approving the,ground-
water monitoring and corrective action
demonstrations or programs described
above. Therefore, today's rule allows
the owner or operator to obtain the
approval of the'Director of an approved
State in lieu of the certification of an -,
independent, qualified ground-water.
scientist., . ..•
One commenter suggested that States
take the responsibility for establishing
the criteria for licensing hydrogeologists
because of the reliance of MSWLF
owners and operators on the advice of
consultants and hydrogeologists in
implementing the regulations. The
commenter stated that the variability of
the opinions and approaches among
different professionals would be a
barrier to implementation. A second
commenter suggested that there should
be minimum professional requirements.
The Agency agrees that those
professionals certifying the
requirements of today's final rule should
meet certain qualifications. The Agency
• has defined a "qualified ground-water
scientist" to be a scientist or engineer
who has received a baccalaureate or
post-graduate degree in the natural
sciences or engineering and has
sufficient training and experience in
ground-water hydrology and related
fields as may be demonstrated by State
registration, professional certification,
or completion of accredited university
programs that enable that individual to
make sound professional judgments
regarding ground-water monitoring,
contaminant fate and transport, and
, corrective action. This requirement is
included at § 258.50(f). The Agency
believes that specialized coursework
and training should include, at a
minimum, physical geology, ground-
water hydrology or hydrogeology, and
environmental chemistry (e.g., soil
chemistry or low temperature
geochemistry). Some national
organizations, sudhas the American
Institute of Hydrology and the National
Water Well Association, currently .
certify or register ground-water
professionals. States m-sy of course
establish more stringent requirements
for these professionals including
mandatory licensing or certification. .
2. Sections 258.51-58 Overview of
Ground-Water Monitoring and ;
Corrective Action Requirement^
The Agency received numerous . .'
comments on the ground-water
monitoring and corrective action
requirements presented in the proposed
rule. In general, most commenters '
requested that the rule be made simpler,
less costly, and provide States with
more flexibility. In responding to the
commenters, the Agency has made a :
significant number of changes from the
proposed rule. Among these changes are
the elimination of the trigger level and a
general reorganization and streamlining
of the ground-water monitoring and
correctiye action requirements. .
Section-VlI of today's preamble
provides a summary of today's final
rule, including the ground-water
monitoring and corrective action
provisions; As indicated in this
summary, EPA.has reorganized the
ground-water monitoring and corrective
action requirements into four major
groupings: Establish Program, Detection
Monitoring, Assessment Monitoring, and
Corrective Action. The following more
fully discusses each of these sections, >
including specific comments received,
and the rationale for the final approach.
Establish Program "
'•The following sections discuss the
requirements for ground-water
monitoring systems (.§ 258.51) and the
procedures for sampling and analysis
that must be used by owners ancl
operators (§ 258.53). As discussed later
in the preamble, §258.52, which
pertained to the establishment of trigger
levels for the appendix H constituents,
was deleted.
3. Section 258.51 Ground-Water
Monitoring Systems "
Section 258.51 of the proposed rule
specified requirements pertaining to
appropriate methods for designing and
installing ground-water monitoring
systems. Recognizing the similar intent
of ground-water monitoring under
subtitle C and subtitle D, the Agency
proposed performance standards for v
ground-water monitoring system.design
that reflected tho.se specified for
hazardous waste disposal facilities in 40
CFR part 264. The Agency proposed
these requirements to ensure that
consistent, reliable ground-water
monitoring data are collected at all /
MSWLFs. , . .;
1 The proposed rule required that
monitoring wells be placed at the closest
practical distance from the" waste
management unit boundary or the
alternative boundary designated by the
State under § 258.40. The proposed rule-
also allowed.the State to designate ...:
another appropriate location for down-
gradient wells where subsurface
conditions cause hazardous constituents
to migrate past the boundary before
descending into the uppermost aquifer.
The system had to consist of a sufficient
number of wells at appropriate locations
and .depths to yield samples that
represent background ground-water
quality and the quality of ground water
passing the unit or alternative boundary.
Individual wells had to be constructed
to prevent contaminatiori of ground
water and be operated and maintained
so as to perform to design specifications
throughout the life of the monitoring
program. Wells had to be cased in a
manner maintaining the integrity of the
monitoring well bore hole and this
casing had to be screened and packed
with gravel or sand, where necessary, to
enable collection of ground-water
samples. The annular space above the
sampling depth had to be sealed to
prevent contamination of samples and
the ground water. The State could .allow
a multi-unit ground-water monitoring
system at facilities that have more than,
', one landfill unit provided that the multi-
unit ground-water monitoring system
would be as protective of human health
and the environment as individual
monitoring systems for each unit.
Because hydrogeotogic conditions
vary widely from one site to another, the
proposal did not establish requirements
specifying the exact number, location,
and depth of monitoring wells needed to
adequately monitor ground water in the
aquifer. A few commenters supported
this approach, while another eommenter
argued that EPA should specify a
minimum number of wells. The
commenter, however, did not suggest the
necessary minimum number of wells.
The commenter was concerned that the
proposed rule might encourage the
installation of an excessive or
inappropriately large number of wells.
EPA disagrees that wording of today's
final rule directs owners and operators
to install.an excessive or .
inappropriately large number of wells.
"The Agency still believes it is important
to provide owners and .operators ' • •
flexibility in determining the appropriate
number of wells to meet the .
performance standard, and therefore
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51066 Federal Register / Vol. 56, No. 196 / Wednesday. October 9, 1991 /Rules and Regulations
has retained the proposed approach in
today's final rule.
The proposal included a provision
that the number, spacing, and depth of
monitoring systems be based on site-
spccific technical information including
a thorough characterization of: (1)
Aquifer thickness, ground-water flow
rate, and ground-water flow direction;
and (2) the saturated and unsaturated
geologic units and fill materials
overlying the uppermost aquifer.
including, but not limited to:
thicknesses, stratigraphy, lithology,
hydraulic conductivities, and porosities.
All commenters generally supported this
provision, although a few suggested
certain improvements. One commenter
believed that further improvements
could be made in the site
characterization process and that the .
ground-water provisions needed to be
far more explicit than proposed.
Specifically, the commenter believed
that proposed § 258.51(e) should require
that the folio whig specific
characterization requirements be
performed prior to final ground-water
monitoring well installation: (1)
Installation of soil/rock borings; (2)
determination of ground-water flow
paths and rates (including ground-water
level measurements, vertical flow
components, seasonal and temporal
variation in ground-water flow, and
hydraulic conductivities); (3)
identification of the uppermost aquifei,
especially its lower boundary and any
hydraulic interconnection; and [4) the
use of confirmatory analyses.
Another commenter believed that
§ 258.51(e) should be clarified to
preclude multi-level detection systems.
The commenter believed that aquifer
thickness, flow rate, flow direction, and
the characteristics of the material
overlying the aquifer were important
factors in developing ground-water
monitoring systems. The commenter
believed that for the purposes of
detection monitoring, a flow path
analysis could define a single location
and single elevation or depth of well
screen which would meet the RCRA
criteria for "immediate" detection of
contamination from a facility.
In response to the first suggestion, the
Agency agrees that site hydrogeology
must be thoroughly characterized and
the lower boundary of the uppermost
aquifer be defined. Such information «
will enable the MSWLF owner or
operator to identify potential pathways
of contaminant migration and determine
whether the complete vertical extent of
the uppermost aquifer, including
hydraulically interconnected zones of
saturation, is being monitored. (See the
technical guidance for this rule that is
discussed in section VI of this
preamble.) Therefore, the Agency
expanded the factors for consideration
in determining the number, spacing, and
depth of monitoring wells to include
requirements to (1) thoroughly
characterize ground-water flow
direction, including seasonal and
temporal ground-water flow, and to (2)
thoroughly characterize not only the
saturated and unsaturated geologic and
fill materials overlying the uppermost
aquifer, but those that comprise the
uppermost aquifer and the confining unit
which defines the lower boundary of the
uppermost aquifer as well.
In response to the comments
regarding multi-level detection systems,
the Agency believes that the use of
these systems is often necessary and
desirable to adequately detect potential
ground-water contamination. Ground-
water contamination may not be
detected by wells screened at a single
elevation under certain circumstances
including landfills where: (1) Both
sinking and floating contaminants could
potentially be detected; (2) multiple,
interconnected aquifers exist; (3)
aquifers are variable in lithology, or
contain discontinuous structures; or (4)
discrete zones of fracture exist.
The Agency would like to emphasize
that all components of any ground-water
monitoring program, from site
characterization, Well location and
installation, to sample analysis and data
evaluation, must follow technically
_sound procedures to achieve high data
quality objectives and, consequently,
reliable and accurate results. Some'EPA
publications that address data quality
objectives for ground-water monitoring
include: RCRA Ground-Water
Monitoring Technical Enforcement
Guidance Document (September, 1986),
Test Methods for Evaluating Solid
Waste (SW-846) (3rd Edition,
November, 1986), RCRA Facility
Investigation Guidance (May, 1989), and
Statistical Analysis of Ground-Water
Monitoring Data at RCRA Facilities
(April, 1989).
The rule as originally proposed
required substantial State interaction in
designing and approving the ground-
water monitoring system. However,
because today's final rule is self-
implementing, the Agency has instead
required certification of monitoring
systems to ensure that such systems
have been adequately designed and
installed. Therefore, § 258.51(d)(2) of
today's final rule requires that the
ground-water monitoring system be
certified by a qualified ground-water
scientist as denned in § 258.50(f). This
certification must be placed in the
facility's operating record and the State
director must be notified within 14 days.
In addition to those comments •
discussed above, the Agency received
comments concerning the uppermost .
aquifer, determination of background
ground-water quality, multi-unit ground-
water monitoring systems, and the
alternative boundary. These comments
are discussed individually below.
a. Uppermost Aquifer
The Agency received a number of
comments specifically addressing the
Agency's use of the term "uppermost
aquifer." The commenters' opinions
regarding monitoring of the uppermost
aquifer varied greatly. A few '
commenters expressed confusion with
the definition of uppermost aquifer since
it was not explicitly stated in the rule. A
number of commenters objected to the
Agency's emphasis on monitoring solely
the uppermost aquifer. Some of these
commenters asserted that if zones (both
saturated and unsaturated) above the
uppermost aquifer are contaminated,
then impacts to the uppermost aquifer
are inevitable. Accordingly, these
commenters argued that requiring
monitoring of any ground-water, instead
of solely the uppermost aquifer, would
provide for the earliest detection of
contamination. Other commenters
believed that the Agency should require
monitoring of aquifers below the
uppermost aquifer because ground-
water contamination may not be ;
detected in the uppermost aquifer before
migrating to a lower aquifer or because
the uppermost aquifer may be
hydraulically connected to lower
aquifers.
In contrast to the above opinions,
several commenters were concerned
that the rule may require monitoring of
saturated or unsaturated zones (e.g.,,
aquitard) that may not satisfy the
definition of "aquifer." hi their opinion,
the ground-water monitoring program
should focus on monitoring only aquifers
that may provide drinking water or
other beneficial uses.
The Agency agrees with the ;
commenters concerns regarding the
need for a definition of "uppermost
aquifer." In response to these concerns,
the Agency is adopting the definition of
uppermost aquifer in § 260.10 for today's
final rule at § 258.2. The proposed rule
defined an aquifer as: A geological
formation, group of formations, or
portion of a formation capable of
yielding significant quantities of ground
water to wells or springs which is
, consistent with the definition of aquifer
given in § 260.10. The Agency's position
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.Federal Register _/ Vol. 56, No. 19& / Wednesday, October 9, 1991 / Rules and Regulations 51QSJ7
has always been that the definition of
uppermost aquifer should address
situations in which the uppermost '
aquifer is interconnected with lower
aquifers, and therefore, the term ,
"uppermost aquifer" is defined in
§ 260.10 and in today's final rule as: the
geologic formation nearest the natural
ground surface that is an aquifer, as well
as lower aquifers that are hydraulically
interconnected with this aquifer, within
the facility's property boundary. If lower
zones of saturation are.hydraulically
connected to the uppermost aquifer,
they collectively comprise the
uppermost aquifer. Consequently, a
number of facilities will be required to
monitor lower aquifers that are
hydraulically connected to the aquifer
nearest the natural ground surface.
The Agency currentiy is evaluating
the appropriate scope of ground-water
monitoring requirements at subtitle C
facilities. On July 26,1988,Jhe Agency
proposed to amend 40 CFRpari264,
subpart F to give the Regional r
Administrator explicit authojjtj? to
require monitoring in any zoftes'of
saturation including saturated 2,ones
that are not part of the uppermost
aquifer (such as perched or intermittent
water tables), as well as monitoring in
unsaturated zones, for deterjmining early
migration of contaminants (53 FR 28160).
The Agency currently is ega/uating
comments that were received on that
proposal and is preparing a final rule.
After the final rule is published^ the
Agency also will consider the
appropriateness of proposing
comparable changes to monitoring ,
requirements in § 258.51 for muyucipal
solid waste landfills. Today's final rule
does not preclude States, however, from
requiring monitoring in thejinsrfurated
zone or in saturated areas in^dition to
the uppermost aquifer, f^"
b; Determination of BackgrounQ Ground-
Water Quality :
In the proposed rule, EPA allowed
States to determine alternate
background ground-water quality on a
site-specific basis if true background
ground-water quality could not be
detected on site (§ 258.53|y.jrhe
alternate background gropo-water
quality was to be based ca monitoring
data from the uppermost aquifer that
were available to ihe State. In the
preamble to the proposed rule, the
Agency elaborated that background
' ground-water quality shouldjje based
on actual monitoring data ffogj the
aquifer of concern. ^ ;
A number of commenters sfEttei that
§ 258.53(g) of the proposed mle&
allowed _the State to deternine
background water qualit
wells hi similar hydrogeologic areas, is
inadequate. They contended that there
are often no similar hydrogeologic areas
that provide representative background
water quality and that adjoining areas
may be unrepresentative due to other
activities in the area (e.g., irrigation and
fertilization practices). Further, they
contended tiiat this'provision does not,
provide any criteria, geological or
hydrogeological, by which States can
determine whether two areas are
hydrogeologically similar. They believe
such criteria are necessary since many
factors, including aquifer lithology, will
directly affect groundwater '
geochemistry. . •
Based on consideration of these
comments^ the Agency has-deleted.
proposed § 258.53(g) from the final rule.
The Agency initially proposed to not set
the criteria to determine alternate
background ground-water quality -to.,
provide States with maximum flexibility.
However,-the Agency agrees with
commenters that the proposed :-
§ 258.53(g) was vague and believes that
proposed § 258.53{f) (§ 258.51(a) in
today's rule) provides owners and
operators with the needed flexibility to:
determine background ground-water
quality. Proposed § 258.S3(f) allowed the
owner or operator to establish ground-
water quality at existing units based on
sampling of wells that are not
upgradient from the waste management
area if: (1) Hydrogeologic conditions do
not allow the owner or operator to
determine what wells are upgradient;
and (2) sampling at other wells will
provide an indication of background
ground-water quality that is as
representative or more representative
than that provided by upgradient. The
Agency did not receive comments
opposing proposed § 258.53(f) and has
retained this provision in today's final
rule (§ 258.51(a)(l] of today's final rule).
This provision may be used when
hydrogeologic conditions do not allow
the owner or operator to determine
which wells are hydraulically
upgradient and when sampling at other
wells will provide an.indication of
background ground-water quality that is
equally or more representative than that
provided by upgradient wells. Examples
of such situations, as discussed in the
background document for the proposed
rule, include: (1) Waste management
areas above ground-water mounds; (2)
waste management areas located above
aquifers in which ground-water flow \
directions change seasonally; (3) waste
management areas located close to a
property boundary that is in the
upgradient direction; (4) waste . -
management facilities containing
significant amounts of immiscible
contaminants with densities greater
than or less than water; (5) waste
management facilities located in.areas
where nearby surface water can
influence ground-water flow directions
(e.g., river floodplains); (6) waste
management facilities located near
intermittently or continuously used •
production wells; and [7] waste
management facilities located in karst
areas or faulted areas where fault zones
may modify flow. In all cases, facilities
should ensure wells are appropriately
located and screened to allow
determination of background ground-
water quality thathas not been affected
by possible leakage from the landfill
unit. The location of background wells
also will be included in the certification
required by § 258.51(d)I
c. Multi-Unit Ground-Water Monitoring
-Systems . -.;...
As previously discussed, the proposed
rule allowed the State to approve
grouping of landfill units for ground-
water monitoring systems^ The multi-
unit ground-water monitoring system,
however, had to be as protective, of
human health and the environment as
individuarmonitoring systems for each
unit. The Agency recognizes that local
conditions may make it difficult to
install a monitoring system around each
landfill unit. . ,;
The Agency did not receive any
comments opposing this concept so it
has been retained in § 258.51(b) of
today's final rule. However, because the
Agency is providing for the self-
implementation.pf today's final rule,
only approved States will be allowed to
approve the use of multi-unit^systems.
Unless an approved State allows the.
grouping of units, the owner or operator
will be required to install a ground-
water monitoring system; for each
individual unit. ,
If used, the multi-unit system must be
as protective of human health and the1
environment as individual monitoring
systems for each unit. Because of .
general commenter concerns :that States
need more guidance in implementing
today's final rule.'the Agency added five
factors for approved States to consider
in approving the use of multi-unit
systems. These factors, found-in
§ 258.51(b), include: (1) Number, spacing,
and orientation of units; (2)
hydrogeologic setting; (3) site history; (4)
engineering design of the Ticlits; and (5)
•type of waste handled. These factors are
similar to those factors proposed for the
Regional Administrator's consideration
in approving a multi-unit ground-water
monitoring system for hazardous wasie
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Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
facilities regulated under subtitle C (53
FR 78162). The rationale for these
factors is discussed in the preamble to
the July 28,1988 proposed rule (53 FR
781621.
Multi-unit monitoring systems also
must consist of a sufficient number of
wells, installed at appropriate locations
and depths, to yield ground-water
samples from the uppermost aquifer that
represent the quality of background
ground water and represent the quality
of ground water passing the relevant
point of compliance. As discussed
below, § 258.51(a)(2) requires that the
downgradient monitoring system be
installed at the relevant point of
compliance (not to exceed 150 meters
from the unit on land owned by the
owner or operator) designated by ah
approved State. In determining where to
place monitoring wells in a multi-unit
facility in compliance with
§ 258.51(a)(2), the approved State should
draw an imaginary line around all units
at the facility. This line would constitute
the relevant point of compliance for a
multi-unit system. Therefore, wells must
be placed at this imaginary line. Of
course, the approved State must first
make the determination that it is
appropriate and protective to use a
multi-unit monitoring system based on
the factors described above.
d. Ground-Water Monitoring and the
Alternative Boundary
The proposed rule allowed the
placement of monitoring wells at the
closest practical distance from the
waste management unit boundary or
alternative boundary selected by the
State under § 258.40(d). This ground-
water monitoring performance standard
was linked directly to the design goal of
the landfill unit by requiring placement
of the monitoring system so as to
monitor the performance of the landfill
design at the unit or alternative
boundary. For example, if the unit was
designed to meet the design goal at an
alternative boundary, monitoring wells
were to be installed at the alternative
boundary.
The alternative boundary could be no
more than 150 meters from the waste
management unit boundary, and had to
be on land owned by the MSWLF owner
or operator. Under the proposal, States
would be required to consider eight
factors before establishing an
alternative boundary: (1) The
hydrogeologic characteristics of the
facility and surrounding land; (2) the •
volume and physical and chemical
characteristics of the leachate; (3) the
quantity, quality, and direction of flow
of ground water; (4) the proximity and
withdrawal rate of the ground water
users; (5) the availability of alternative
drinking water supplies; (6) the existing
quality of the ground water, including
other sources of contamination and their
cumulative impacts on the ground water;
(7) public health, safety, and welfare
effects; and (8) practicable capability of
the owner or operator. The Agency's
rationale for allowing an alternative
boundary for meeting the design goal
was to allow for consideration of the
practicable capability of owners and-
operators by allowing contaminant
concentrations to diminish due to
degradation, dispersion, and
attenuation. Its purpose was also to
allow for greater State flexibility in
setting design requirements.
The Agency received a number of
comments regarding the alternative
boundary designation which would
permit ground-water monitoring wells to
be placed at distances up to 150 meters
from the waste management unit
boundary. Several commenters asserted
that the 150 meter boundary was overly
conservative and too inflexible. A
number of commenters suggested other
locations for alternative boundaries
including: the property boundary and
unlimited locations, based on the risks
posed by the facility. These arguments
were countered, however, by other
commenters who expressed concern
that the allowable distance was -
excessive, would simply allow dilution
of contamination, and would delay
detection of contamination. Several of
these commenters argued that
monitoring wells should be placed at the
waste management unit boundary.
• The Agency recognizes that
establishing the boundary designation
for ground-water monitoring is an
important feature of today's final rule,
and may substantially influence the
facility design and the types, timing, and
costs of corrective action. Therefore, the
Agency carefully reexamined the
proposed approach to address concerns
that this approach was either too
stringent or not protective.
The Agency disagrees with
commenters who argued that the
proposed approach was unnecessarily
stringent. In developing the proposed
rule, EPA considered setting the
alternative boundary at the property
boundary or not stipulating any limit.
These options obviously would provide
the greatest flexibility in addressing the
practicable capability of owners and
operators of MSWLFs. However, due to
the size of some MSWLF facilities, EPA
is concerned that large expanses of
ground water could be contaminated
before detection and, therefore,
circumvent the intent of this rule. Thus,
the Agency believes it is essential to set
a maximum distance limit for the
alternative boundary (referred to in
today's rule as the "relevant point of
compliance") that would limit ground-
water contamination, yet still provide
some flexibility to owners and operators
of MSWLFs. The Agency also specified
in the proposed rule, and in today's final
rule, that the alternative boundary (or
the relevant point of compliance) must
be located on property owned by the
owner or operator to prevent
contamination off site. The Agency
believes this approach prbvides
sufficient flexibility, while at the same
time, limiting the area of contamination.
The Agency acknowledges that
allowing the relevant point of
compliance to be set at a point beyond
the waste unit boundary would allow
dilution or contamination in some cases
and delay detection of contamination.
Although EPA generally prefers the
installation of ground-Water monitoring
wells at the waste management unit
boundary to provide the earliest
opportunity to detect contamination,
EPA believes the unique characteristics
of MSWLFs warrant the flexibility
afforded by today's final rule. First, the
technical and economic resources of
MSWLF owners and operators is limited
in many cases. Corrective action is a
significant cost component of today's
rule and providing flexibility on the
boundary designation for ground-water
monitoring can in some cases serve to
reduce costs by allowing the owner or .
operator to take advantage of a limited
dilution and treatment zone in the,
ground water. In addition, the owner or
operator will be able to avoid
ovqrdesign and thus reduce costs.
Second, EPA expects that in most
instances, there will be very little
potential for human exposure to
contaminated ground water that remains
within the property line (and no more
than 150 meters from the unit boundary)
, of a MSWLF. Most MSWLFs are owned
by local governments, who should be
able to control ground-water use within
the facility boundary. Section 258.40(d)
of today's final rule requires that the
relevant point of compliance be •
approved by an approved State after
consideration of a wide range of site-
specific factors. This,approach ensures
that careful consideration is given
before a relevant point of compliance is
set.
EPA decided to retain the proposed
site-specific factors in setting the
relevant point of compliance. However,
one of the factors used to establish a
relevant point of compliance (factor 6)
has been changed to reflect the •-,_••
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Federal Register
provisions outlined in EPA's 1991
Ground Water Task Force Report. This
report calls for the enhanced role of the
States in setting ground-water
protection strategies to meet State-
specific needs. As discussed in the
preamble to today's rule, States may use
ground-water classification and
resource evaluations in making :
decisions regarding ground-water
protection. Accordingly, factor 6 has
been amended to include consideration
of whether the ground water is currently
or reasonably expected to be used for
drinking water. EPA believes that this
approach is protective of human health
and environment, and_ provides the
necessary flexibility to address the '
unique ground-water protection
strategies of the States. ,
As mentioned above, the proposed
rule also allowed for the placement of •
wells at the closest practical distance
from the waste management unit or
alternative boundary to account for the
presence of physical, obstacles, such as •
gas and power lines, that would be
impaired or destroyed by well
installations in the area. Further, this
provision allows for the installation of a
well network while considering the
locations of landfill design components
such as run-off controls and liner
anchors. The proposal also recognized
that other factors can affect the
placement of monitoring wells. For
example, perched water tables or other
hydrogeologic phenomena may cause
leachate from a MSWLF to travel
horizontally for a significant distance
before reaching the uppermost'aquifer.
For this reason, § 258.51(a) of the
proposed rule allowed the State to select
the closest practical distance ,
downgradient from the waste
management unit boundary or the
alternative boundary if the uppermost
aquifer would not be affected directly
beneath the appropriate boundary from
releases by the MSWLF.
In general, commenters supported the
provision allowing monitoring wells to -
be located at the closest practical
distance from the appropriate boundary
(or relevant point of compliance], so this
provision has been retained, with some
modifications, in today's final rule. First,
a number of commenters urged the
"Agency to require that monitoring wells
be located at the closest practical
distance hydraulically downgradient ;
from the landfill. The Agency agrees
with these commenters and has added
"hydraulically downgradient" to
! 258.51(a){2) of today's final rule.
The second change simply ,
incorporates the use of the phrase
"relevant point of compliance." The
. final rule specifies that owners or
operators of existing units locate wells
at the closest practical distance from the
relevant point of compliance where
• existing physical obstacles prevent
installation at the relevant point of
. compliance. The Agency believes that
owners and operators of lateral
expansions, new, or replacement units
will be able to account for the presence
of structures or obstacles in the planning.
process and will be able to place
monitoring wells at.the relevant point of
compliance. However, this may not hold
true for existing units_that were .
constructed without consideration of the
need for ground-water monitpring well
installation. Therefore, the. Agency is
continuing to allow owners and
operators of existing units to install
ground-water monitoring systems at the -
closest practical distance from the
relevant point of compliance.
Finally, other commenters expressed
confusion with the proposed provision
allowing the State to select a location
for well placement if subsurface
conditions cause hazardous constituents
to migrate horizontally past the selected
, boundary before descending into the
uppermost aquifer. One commenter in
particular noted that it was unclear if
this additional location would create a
second alternative boundary.
To eliminate confusion, the Agency
has modified § 258.51(a)(2] in today's •"
final rule'to require that the monitoring
system be installed at the relevant point
of compliance that ensures detection of
ground-water contamination in the . •
uppermost aquifer. Therefore, as an
example, if contamination could migrate
past 'the relevant point of compliance ""
because of a perched zone that does not
qualify as the uppermost aquifer, the
monitoring system must be placed at the
relevant point of compliance ,
appropriate boundary, and be capable ,
of detecting contamination that would
enter the uppermost aquifer. As . •''
mentioned before, the placement of
monitoring wells must be certified by a
qualified ground-water scientist, or
approved by the Director of an approved
State. '
4. Section 258.52 Determination of
Ground-Water Trigger Level
The proposed rule required States to
set trigger levels for all appendix II
constituents prior to initiation of Phase I
monitoring. The trigger level was a
health-based or environmental-based. »
level which was determined by the State
to be an indicator for protection of
human health and the environment.
When available, thdse levels were to be
maximum contaminant levels (MCL)
promulgated under section 1412 of the
Safe Drinking Water Act. If an MCL had
not been established,..the level was to be
a health-based level that met four
'specified criteria. Contamination i
exceeding trigger levels indicated a
potential threat to human health or the
environment that could require further .
study. The owner or operator would be
required to conduct an assessment of
corrective measures whenever
concentrations of hazardous
constituents 'in the ground water
exceeded trigger levels.
Many commenters objected to the
requirement that States establish trigger
levels for all appendix II constituents.
Their rationale was that the task of
establishing risk-based trigger levels
was too complex and unduly :
burdensome for States; many States
would lack both the technical and
financial resources necessary to set
trigger levels.: Several commenters
pointed out that, even EPA had set very
few MCLs, arid that many States would
have even fewer resources for this
challenging task. Additionally,
commenters alleged that allowing States
to set trigger levels would lead to
inconsistencies among the various
States. Several commenters also pointed
out that adequate toxicological
information was not available for all
appendix H constituents, and that
establishing health-based trigger levels •..
for those constituents would be
impossible. , . . •"
In response to the overwhelming
number of commenters objecting to each
Slate setting its own trigger levels for all
appendix II constituents, EPA has
deleted §258152 in today's final rule.
The Agency agrees with commenters
that this exercise'would be costly, time •
consuming, and difficult for States to
implement. Ho'Wever, to insure an .
appropriate level for cleanup activities,
it is necessary to have a ground-water
protection standard for corrective
action. Therefore, in today's rule at
§ 258.55(i), EPA is requiring that the
ground-water protection standard for
those constituents detected above
background during assessment
monitoring be either the MCL, if ,
available, or background concentration.
An approved State may'set alternative
health-based or environmental-based
levels determined by the factors
'provided in § 258.55(j). The requirements
.for ground-water protection standards
are discussed more fully in the section _
on assessment monitoring. '
As mentioned previously, EPA
determined that the,ground-water
monitoring program can be simplified by
eliminating the establishment of the ,
trigger level. The ground-water
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51070 Ffederal Register / Vol. 56, No. 196 f Wednesday; October 9, 1991 / Boles and Regulations
protection standard will be used in
place of the trigger level to determine,
when a facility should evaluate and'
select corrective action-remedies. This
change does.notreduce the level of
protection afforded.by1 tfie ruleutmerely
streamlines the program (thus improving
its implementation).
5. Section 258.53" Ground-Wafer
Sampling and Analysis Requirements
The proposed rule required.MSWLF
owners and operators to develop a
ground-watermonitoring program that
includes consistent' sampling and
analysis procedures; that would ensure-
accurate ground-water monitoring;
results.,The sampling and analysis
procedures were required to provide aa
accurate representation of both the
background groundi-water quality and
the quality of ground-water at
monitoring wells placed, down gradient
from, the landfill site. The proposed rule
set minimum.requirements for the
facility grounds-water, monitoring
program's sampling and analysis
procedures- and techniques. The
procedures and techniques were to-be,
documented in the facility's operating
record and" were to include: [1] Sample
collection; f2) Sample preservation and;
shipment; (3} Analytical procedures; (4)
Chain of custody control; and (5J Quality
assurance and quality control.:
The proposed'rule also set general
performance standards for ground-water
sampling and analytical methods that
included: fl) The method usedmust
accurately measure hazardous
constituents and-other monitoring
parameters;'(2):the"procedures-and
frequency of the method mustbe-
protective of human health and the
environment; 0) the sampling method-
employed must ensure-that the-
stntisticaTprocedure used would have-
an acceptably low probabilityoffailing
to identify contamination; (4) ground^-
water elevations must be measured fir
each monitoring well immediately'prior
to sampling; [5J the rate and direction of
tlie ground-wafer flow m the.uppermost
aquifer must tie determined each time
ground-water gradient changes were
indicated by previous sampling
measurements; and- [6) the^ background"
ground-water quality be established at a
hydraulically- upgradient well for each of
tho monitoring parametersor
constituent* required by the applicable
ground-water monitoring, program,
(requirements for deteumining the
applicable program foreachi landfill unit
were providedLin;Sl258.54(aJan;dl
§ 258.55{a£o£taeprapasecinileJ«
TJie proposed rulcallawad; far* .
variances tatha:rffiqaii£ra6!3QtthfHt,,_" _; ''.,.„
background ground-water; qaality he
based upon sampling atmonitoring
wells: upgradient from: the unit or area.
The variance, was; allowed if'either the?
hydrogeologic conditions; do: not allow
the owner or operator to determine
which wells,are; upgradient and if
sampling at other wells would provide
an indication ofbackground ground-
water quality that is, as representative-or
more representative of background
quality than upgradient monitoring
wells. The proposed rule^ also-provided
that a State may determine background
ground-water quality if background.
quality could* not be determined on site.
The requirements for applying1
statistical procedures in*the'proposed
rule were the same-as the statistical
procedures proposed-on August 24,1987
for hazardous waste facilities under
subtitle G of-RGKA (Statistical Methods
for Evaluating Ground-Water
Monitoring Data fromHazardaus Waste
Facilities. 52' FR 31948); The Agency
believed; that the proposed: subtitle C
procedures" also were appropriate; for
MSWLFs and provided sufficient
flexibility to allow effective State
implementation. The Agency noted that
the final statfsticalproceduies
promulgated under § 258.53,would
reflect comments received on this
proposal as well as the final statistical
package promulgated under 40 CFR part
264.
The proposed.requirements pravlded1
that, the owner or operator must select
an appropriate;statislical:procedure to
determine if samples, takenAom,
downgradient monitoring wells
represent.aistatisticalTy significant
increase aver background values for
each parameter or constituent that.
occurs in the-downgradient sample.. The
proposed rule required^the owner or
operator to employ one of four
statistical procedures.or an alternative ,
procedure tiiatwauld, protect human,
health and the environment and-meet
the ground-water protection standard^
provided in § 258.52(b) of the proposed
rule. Thefour atatiaticaL procedures;.
provided hi the proposed rule include:,
(1) A parametric analysis of variance
(ANOVA) followed by multiple
comparisons procedures to identify'
statistically significant evidence of
contamination;: (2), A» analysis; of
varianca»basedton;ranks:fi)libwediby
multiple; comparisons;pnicedures: to;
identify statistically significant evidence:
of contamination; (3J: A\tolerance: or
prediction; iiiterwaleproEedHrg;: and (4J A.
control chart approHchwThsi proposed
rule also; allawecLthe State*tp develop
; an alternative'aampBngjprQcednrffiand:
.' statisticattBatiiEnecesa^^teprotiscte ','
establishing: an alternativftstatistieal .-.,
test, the State was to, consi'deif the1- ,
factors pro.vrded;te;§258.53{h)(3)fri)-{v)'.,
The proposed rule required the owneu
or operator tosdetermihe whether ornot;
there is a statisticallic significant
increase over background levels for ,
each parameter and constituent, the
owner or operator istrequired'to monitor
for under the appropriate, programs, The
owner or operatorwas-required; to make,
these statistical'determinations each
time' he or she assessed ground-water
quality, in making;this- comparison, the
owner or operator was to-applya
statistical procedure provided for in the
proposed rule and'make any7
determinations' of whether there has;
been a statistically significant increase
or decrease over background within a
reasonable time period,, set.bjrthe State;
after compteting sampling., A .reasonable
. time to perform,statistical analysfe
would typically; be: upon,receipt:of
analyticaE data,fcom. foe laboratory,
EPA received many comments in
responseto both this;rule and the*
August 24,1987 proposed statistical
method's forground-water monitoring at
hazardous? waste facilities. As indicated
in the preamble to the subtitle D
proposal, ;the Agency considered:
comments to both proposed rulemakings
when establishing the requirements in
today's final rule.
In response-to-the subtitie-D proposal'
in particular, EPA received comments:
covering the following areas; [l)The,use
of statistical significance; (2)"the
required'fiequency of sampling and' the
number off samples; collected; (3)'.th&
establishment of Type I and Type H
error levels;' (4J the- measurement of the
rate and direction; of groundLwater flow
in the uppermost aquifer each-time
ground-watergradient changes; (5)
consistency witfc subtitle G'statistibal.
procedures; and (6)'sample filtration.
Comments received'in each area and: the
Agency's responsea are discussed'
below.
a. Statistical Testa-
Many commenters expressed; concern
over, the USB of 'statistical' comparisons;
to background diata to trigger
assessment (PhasettJ monitoring;,
Commenters;believ;e that; the rule should:
be more ftexibfe and that athermethods
of data analysis-should be available foe
evaluatingrgrouad-waler monitoring:!'
data. TWo commenters; befieve that
because ground-water data are. subject
to several kindsrofrandom variability-
.resulting, from spatial, temporal,
. sanjpling; and analyticatgoarcBB* the
use'pf'tfietgroposedSstetiaticsr Would
result in: excessive false positives. One
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No" 196
'191 ^ Rules a"d Regulations 5107:f
of these commenters believes that
particular procedures should not be
specified in the rule because ground-
water data evaluation is a site- and
waste- specific issue. Commenters
suggested that the final rule allow for
the use of trend analysis, graphical
statistics such as box plots and time
versus concentration plots, descriptive
statistics, and "action levels." Two
commenters suggested that decisions be
based on careful data evaluation,
interpretation by competent experts in
water quality interpretation, or sound
engineering judgement.
The Agency carefully considered the
comments suggesting that the Agency
allow methods of data evaluation other
than statistical tests. However, because •
of the decision to provide for the
selfimplementation of today's final rule,
the Agency is requiring a quantitative
data evaluation method that could be
consistently and objectively
implemented according to a set of
performance standards. Therefore,
today's final rule requires that facilities
- evaluate ground-water monitoring data
using a statistical method provided in
§ 258.53(g) that meets'the performance
standards of § 258.53(h). It is important
to note that § 258.53(g) contains a
provision allowing for an alternative
statistical method that may include
some forms of trend analysis and •
graphical methods such as control
charts, as long as the performance
standards of § 258,53(h) are met.
Today's rule provides.several options
for owners and operators who are
choosing statistical methods, thus giving
them the flexibility to consider site- .
specific factors when choosing
statistical methods. EPA believes that at
least one of these types of procedures
will be appropriate for virtually all
facilities. The statistical tests provided
by today's final rule include: (I]
Parametric analysis of variance
(ANOVA) followed by multiple
. comparisons; (2) ANOVA based on
ranks followed by multiple comparisons;
(3] a tolerance or prediction interval
procedure; and (4) a control chart.
In deciding which statistical test is
appropriate, the owner or operator will
need to consider the theoretical
properties of the test, data availability, •
the site hydrogeology, and the fate and
transport characteristics of potential
contaminants :at the MSWLF. The owner
or operator will then have to determine
whether the procedure is appropriate for
the site-specific conditions at the
'facility, and ensure that it meets the
performance standards of § 258.53(h).
Guidance on choosing appropriate
statistical methods can be found in
Statistical Analysis of Ground-Water
Monitoring Data at RCRA Facilities
(EPA 530-SW-89-026, NTIS Number: '
PB89-151-047).
The proposed rule provided an
allowance for States to establish an
alternative statistical procedure and
.statistical test for any of the appendix II
constituents or the proposed § 258.54(b)
parameters if necessary to protect
human health and the environment. The
proposed rule listed several factors that
• a State should cbnsider for establishing
an alternative statistical procedure,
including: (1) If the distributions for
different constituents differ, more than
one procedure may be needed; (2) each
parameter or constituent must be tested
for separately in each well, and tests for
individual constituents are required to
be done at a Type I error level (an
indication of contamination when it is
not present] of no less than 0.01 while
multiple well comparisons may use a :
Type I experiment-wide error rate no
less than 0.05; (3) the owner or operator
must ensure that the number, location,
and depth of monitoring wells will
detect hazardous constituents that
migrate from the MSWLF; (4) the
statistical procedure should be
appropriate for the behavior of the
parameters or constituents involved and
should include methods for handling
data below the limit of detection; and (5)
the statistical procedure used should
account for seasonal and spatial
variability and temporal correlation. The
proposed rule also allowed States to
require statistical tests of trend,
seasonal variation, autocorrelation, or
other interfering aspects of the data if
contamination is detected in samples
from downgradient monitoring wells
and the State or the owner or operator
suspects that the detection is an artifact
caused by some feature of the data other"
than ground-water contamination. These
trend analyses Would be required to
establish whether the significant result
is indicative of natural variation or of
actual contamination;
EPA received several comments on
the proposed rule's allowance for States
to establish alternative statistical
procedures. Some commenters felt this
provision was tod general, while other
commenters felt the provision did not
give the State enough flexibility in
establishing alternative procedures.
One commenter maintained that the
requirement that an alternative
statistical procedure, employed under
§ 258,53(h) (2) (v) of the proposed rule,
"be protective of human health and the
environment" was vague and lacked
meaning. The commenter contended that •
a statistical procedure is a data
evaluation tool, not a method to '
determine the potential for human and
environmental impacts. ;
Although the Agency believes that the
protection of human health and the
environment is the goal of a ground-
water monitoring program, the Agency .
agrees that use of this general
requirement as the sole performance
objective of an alternative statistical
test is not sufficiently specific. -
Therefore, in response to comments,
today's rule has been modified to
; require that an alternative statistical •
method employed by an owner or ,
operator meet each of the performance
standards given in § 258.53(h) of today's
final rule. The owner or operator must
notifyvthe State of the use of an
alternative statistical test and place a
justification for the alternative test in
the facility's operating record. The
justification must demonstrate that the
alternative method meets the
performance standards of § 258.53(h).
The performance standards presented in
§ 258.53(h] are the same,as those -'
required for all statistical tests listed in
§ 258.53(g) of today's rule.
The Agency realizes that the
statistical methods outlined in today's
final rule may not be applicable to every
single MSWLF, and that the
implementation of an inappropriate "•'.
statistical test would not be protective
of human health and the environment.
EPA therefore recognizes the importance
of allowing MSWLFs to choose an
alternate statistical test when the
statistical tests presented in today's rule
are inappropriate for a facility's, specific
circumstances. The Agency anticipates
that as State programs become "
approved, States will be taking on the
responsibility of approving alternate
statistical tests proposed by MSWLFs.
b. Frequency of Sampling and the
Number of Samples Collected - -" . -
Many commenters were concerned
that the use of statistical analyses
would require fairly large data sets'or
that the required sampling.frequencies
would not provide large enough data
sets during the initial periods of
monitoring to determine statistical
significance. EPA received similar
comments to the proposed subtitle, C
ground-water monitoring requirements
(August 24,1987) 53 iFR 31948. In
responding to comments for the subtitle
C requirements, EPA determined that it
is necessary to conduct at least four,
independent sampling events from each .
well at least semi-annually before a ,
meaningful statistical analysis can be
performed. . . ".
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51072 Federal Register / Vol. 56, No. 196 / Wednesday, October 9. 1991 / Rules', and Regulations.
Today's final rule requires the owner
or operator to, determine whether there
has been a statistically significant
Increase over background, at each well,
after thecompletion.af required
sampling and analysis (§; 258.53(i)).
Therefore,, this will require the owner or
operator to collect four samples front
each well before the first statistical test
can bs performed,, or in other words;
collect four samples.'from each well-.
during the. first six months o£ monitoring
for each monitoring parameter..This,first
sampling event (i. e.,:four samples-from
each well), within the first six. montha of
monitoring would apply not only to,
detection monitoring, hut also during,
assessment monitoring, and, corrective
action monitoring whenever any new
appendix,!! parameters are detectedin
downgradlentwells. and background
must be established.. It should be noted
that § 258.55 of today's rule allows the
Director oifan approved State to
designate a subset of wells for, the
owner or operator to sample and
analyze during assessment monitoring
and corrective action monitoring; rather
than each well. A further discussion,
regarding this, flexibility is provided
later in this appendix. During"
subsequent sampling' events' after
background concentrations' have- been,
established; however; today's-final rule
requires-a minimum of one sample from
each well. Additional samples- maybe
required depending on the statistical.
method used. Each successive sample
will be added to the sampling data base
so that a statistical evaluation can be
performed.
This provision differs in some regard
from the-sampling procedure specified in
§ 284.98 (g)[l) of40;CERpart26*for
hazardous waste facilities*..The subtitle
C regulations require owners and
operators to taker a sequence of at least
four samples, at an interval that assures;
to the greatest extent technically
feasible, that an independent sample is
obtained while considering the
, uppermost aquifer's effective porosity;
hydraulic conductivity, hydraulic
gradient, and the fate and transport;
characteristics of potential
contaminants. Thi* sampling procedure
is to be used unless the alternate
provision under § 264.98(g)(2| is*
approved by the Regional
Administrator^, The; alternate sampling-
procedure may allow: the?owner, or
operator to take fewer than four, samples
semfannually if it is shown that the
facility's, hydrogeologic. setting (e.g.,
slow rates of. ground-water flow), would'
preclude one from; obtainingfour
independent samples during a six month
period (Statistical Analysis of Groundr
Water Monitoring Data at RCRA
Facilities (April; 1989)): The.infent of
this provision was to. allow: for flexibility
in designing site specific sampling
procedures and!to-reduce the effects of
autocorrelation (a measure of
dependence- among' sequential
observations, foom.the samewellj.m
ground-water samples.
For subtitle-D MSWLPs, a> minimum of
one sample for subsequent-sampling;
events; after background is established
for each parameter,.was choseii
primarily because of practicable
capability considerations. The sampling
and analysis- costs: would quadruple if
four-samples: \vere required during; each
semiannuaLsampling event A-MSWLF
for. example, with 25 wells screened in
the same interval, would be required tor
sample and-analyze lOtt ground-water
samples every, six months. If the facility
were.in detection monitoring,, the
semiannual-analytical:costs alone would
exceed$35,000.00, and field sampling-
costs could nearly double that figure, A
numberof MSWtFs.have mote than 25
monitoring, wells that are screened:
throughout several saturated intervals.
The Agency thereforebelieves,that
sampling and analytical, costs.
associated with.-a procedure requiring..
four semiannual, samples, would-far
exceed the practicable capability of
many MSWEF'owners and operators.
Additionally,, the Agency would like
to emphasize, that althoughlthe rule "
requires a "minimum"'of one sample for
subsequent sampling, events after
background has been established,.
§ 258.53(c)? of today's rule requiresithat
sampling procedures and frequency be
protective of human health- and" the,
environment. Section 258.53(11 also
requires that the number of samples
collected be consistent witlLthe
appropriate statistical procedures
determined pursuant to paragraph (g£
Therefore, the owner or operator, may
findit necessary to, take more than, one
sample during each sampling,event to-
meet the rule requirements.
c. The Establishment of Type I-and Type
II Error Levels
The Agency received two-comments
regarding the establishment of typeT
and type II error levels., A tvpe>r'erroF
occurs-when a test incorrectly indicates
contamination or an increase in
contaminatibn. A type H-error occurs^
when monitoring fails; to detect
contamination or; an increase in s
concentration of a hazardous;
constituent. One commenterobjected to.
• § 25&53(c):ofthe,proposedrule> which;
required that th-esampling?requiEement •
, ensure; that: thei statistical procedure
used to evaluate, samples'.have an
"acceptably low" probability of failing;
to identify contamination. The
commenter believed that the Agency
should instead" provide a specific level
for type terrors, of no greater; than 0:05}
and preferably O'.Ol. Another-coiamenter
was opposed to theerrorlevelsithat
were required for stateiesta&lished'
alternate statistical procedures in
§ 258.53(h)(3)(iiT-The commenter
believed it is arbitrary to: specify type I
and type IF error levels without taking
into account-the monitoring system, the •
nature of the constituents, and
analytical and sampling techniques; The
commenter; believed thatthe Agency
should: allow erroirratBS-to: bas basedon
site;- and waste^specifie^conditions.to
ensure.mat a; statistical test.will both
reasonably detectreleasEs.and keep the
sampling: andianalyticatrequicements
within.a. practicable scope..
The Agency agrees: that it is.
necessary, particularly in light of the
self-implementing-nature of today's-rule;
to specify type I error level* for
individual well comparisons^and
multiple welt comparisons'. The; Agency
believes-that? individual'facility owners
and operators-would have difficulty in
accurately definihgAtype I' error rate-
that would provide an."acceptablylow"
probability offailihg toadentify
contamination! Consequently; the
Agency included in today?s-rule:the
same performance standards-for
statistical tests promulgated' on October
11,1988 for RCRA subtitle-G (5ff FR
39720)..Theperforanance standards
contained in today's.rule: specify type I
erzor levels; that apply to all individual-
wells and:multiple:well comparison
procedures, as^weUastanyalternatei
statisticaliprocedures; established by the
State; as was proposed. -
EPA* s-basic' concern- in establfshing
performance standards for statistical
methods is to: achieve^ a-proper-balance-
between the risk that the procedures-
will falsely indicate that a regulated unit
is causing background values or
concentration limits to-bei exceeded
(false positives); and the risk that the
procedures will- fail to indicate that
background values: or concentration;
limits are being exceeded (false;
negatives). The- approachpromulgated
today,; as fOFSubtitleC, is designedte :
address that concern:directly., EPA is-
limiting the-type I errorievel: (false-
positive) forfthe-purpose, of controlling
the typetll errortevel (false negative);
The Agency has set the type Eerrorleve!
at 0.01 for; individual well Comparisons;
and at O.OS.for multiple comparisonsu
The Agency believes-statisticat analyses!
and sampling'.proxseduresi.that meet the
performance stan
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Federal Register / VaL 56. No. 196- / Wednesday,,, October 9, 1391 /! Snles airdr RegiilkJions" 510S
today's rule would have-alow !
probability of indicating contamination
when it is not present; andof failingrto.
detect cpntaminafion that actually iir
present. Further; the prpwsionssih.
§ § 258.5%]{3J and 258.55fgpJ allow
owners' and operators to-demonstrate
that the indicataonFof Gontamfnatibn
resulted'&om an error In statistical
evaluation. These prd visions-will affow
owners and operators^to control false-.
positive-rates. , '
The Agencybelie.vJes.faEiKtycwmisrsi
and operators wauldifind it difficult:to?
quantify, type! and type ILerror;levels?
that are based on-factors such; ast
monitoring systems; the*nature;ol, V ,
constituents,, and'analytical'and:
sampling techniques;. Thust the- Agency.
is requirmg'that any statistical mefedd
selected under §';25B.53[gJ shouldmeet
the performance-standards* outlined.in.
§ 258.53(h) of today'* rvdei
d. Measurement of the Rate and
Direction of Ground-Water Flow
EPA received, several comments-
regarding tiie detenninatipiiof ground-
water flow rate and direction. Twff
commenters were concerned that the
rule requires water level measurement
prior to well sampling. But does, not"
clearly state that the measurement of '.
water levels should'occur prior to well
purging. These commenters were ',
concerned that owners and;op;erafprs
may measure water levels in wells
shortly, after the. well's are purgecE.
thereby obtaining-unrepresentative .
water level measurements.
EPA agrees witlr the concerns,
expressed-bythese commenters'.,Sta[tic
water levels should be measured prior
to well purging; Further, the Agency
realizes that in1 many situations groiind^-
wafer recovery &i purged: wells-may;
take a considerable amount of 'time.:
Ground-water level measurements made
in wells that have* not fully recovered
will yield-unrepresentative results;"
leading'to-errors fir, the1 determination of
ground-water flow directions, hydraulic
gradients, and ground-water, flow rates.
In order to avoid this; problem, the
Agency has modified ? 258.53[d) of
today's rule to require thatownera and
operators measure:water.; levels: prior1 to
well purging. . :.,-,- ......
Two other commenfera wishedito:
ensure that.faefliiy owners; and;
operators measure ground-water fevelsi
in all wells over aiafhprt time frame soc
that accurate water level elessatioaa.can:
be determined^ One commenter,,
recognizmg'thatff facility .may-hot
' sample alLoftheiEwellsibii:the::sam(jf - •
i suggested thaKrather:than:reqjiiring':
'
sampling1,: EPA; could, require; ilak water
level measurements beperformed/at:
specified intervals.
In respoase tCfeese cpfflmeWers;'
concerns, l:258^3'{d} of today's.rule ,
reqjikes. that, for wells that monitor, the
same waste management: area, owners -•
and.pperators mustmeaaure water level
elevations within: a: period of tima short
enough to avoid temporal variationa in,
ground-water ftow that, eould preclude
accurate determination, o£ groundrwatez
: flow rate and direction. As the
commenter. notedt in; some instances:
ground-water., sampling, atagiven.v^aste
management area may take more than
one day. The Agency believes-that
. water levelmeasurementa from
boreholes, piezometers,, or monitoring
wells used; to: construct a; single
piezometri&surfacesshouldibe colfected
within a 24-hour neriodi Moreover, .
certain situations necessitate that aft.
measurements be made within, a,period
of time less than 24 hours. These , -
..situations include: tidally influenced
aquifers; aqjiifers affected by rfVer •
stage, imppundments, or unlrned'dit'Griesr
;aquifers stessedby hitermittent
pumping, of production well's^ and
aquifers.being actively recharged: due to
a precipitation event. Gbnseqaent'ly,
facilities must measure wafer levefe in,
all wells prior to initiating well purging
and sampling.
Several commenf ers believed that the
requirement that the owner or operator
. determine the- rate and- direction1 of
ground-water Eowm tfre-uppermost
aquifer each timeground-wafer'gradaesnt
changes, as indicated by previous1
sampling, period-elevation
measurements, is overly; burdensome;
unrealistic, and unnecessary;
Commenters maintained that many/
ground-water'ilp'vv variffiabns are the;
result of seasonal factors-, especially ite
dynamic grdund-waterreginies, and; that
any fluctuation of any grpund-wat'er '
level will resttlt1 in a ground-wafer
gradient change, consequently each
monitoring event would require a .-"•••
. separate- evaluatiort of the rate-and:"
direction of ground-water flow.
CommeHt'ers: suggested; a variety of
ways in which, the proposed rule could
be madified, includirigsflj Require
recording and reporting'of ground-water
level data,but only'require analysis of
groundfwateFlev.el and flow data as. '
necessary ta understand or interpree
other grounds-water data;. (2); require
evaluatiort of waterlevetdsta: based?
boundary conditions; for the range-of
' "routine" ground-water gradients?
expeEted.at:ttsLtedarm'g:ridrmat '
hydrpgeolbgiKcyclesfcEil) coraprare vsateir
" leyetraeasurelrrentsfo oi&etwett . :" --:.
"iflea'surem'ehts to determine-if'"\ ' ;'.-..'
; redefinitiaiE o£ ground-water- Sow; ratE-
and directJan; is necessary; aiidj^Jc <'-. "
require that ground- water erevratrcwrs be
compared to the nomral!,raHge;;of
elevations foe eacb well; and if anyr
changes ih; water- level; elevation, ax&
inconsistent' wife other1 wells, indicattye
of a change in grcrandi-watei flow-
direction, or display gradients beyond.
ranges observed" in past sampling- '.- >'
events, then analyze ground-water flow
directions and rates' for e&ange.
The Agency has1 considered the
comments summarized above, and
believes thaflfe requirements; for .
determination of ground-water flow
direction and rate dp not represent a "
significantburdentp^ owners and
operators. Moreover; it' is the Agency-V
intentrto require facilities* to monitor
: changes in ground-water flbw rate and'
direction, particularly in settings where
ground-water flbw rate andi direction,
change dramatically and/orfre,quentryr
Only by maintaining, a constant
imderstanding of changes' in. the
direction and, rate of 'gpound water flow
can facilities ensure;tha.t their
monitoring systems, are adequately
designed to, defect a. rerease, and
• facilities will be able, to. predict the fate
of areleasei.shQuMIareIease;be ;
detected of corrective action-become
•necessary.. , ,
Although: subtitle 'C currently requiEes.
facilities- fo':determine gfoundrwater.
.flow direction and. rate atleast arauralljr^
.the Agency haa-prpposed requirements:
forSubtitleCifacilities te determine. ,
ground-water flow rate and direetioa
. more freqiiently than annually when, ;
justified by siterSgecifiahy-drbgeoIogJG
conditions tsaER 2ai60)»Beeaase d£the .
self-irhplemerjting, approach' to? today's
final rule, no mechanisms exists for
requiring amore frequent determinations
of ground-water flow direction, andtrate
as provided for under subtitle C. , ,
Therefore, today/' ss final rule requires '
that all facilities deferminegEound- :
water flow direction; andrate- each time ,
groundrwateeis'samplBdL'EheAgertcjf'
does not believe- requiring flow rate
calculations- fb^eaeht samphngf evenf
will- represent* any inereaBed bmrd:en,; t0
owners andcoperators..EstHnaMngj :
average ftawrrategenerally/requires
only aisfinples eatculatioH^using! values
for porosity; ^^hydEaalto conductivity/,, and
hydraulic- gradient The April 1989 EEA-
publicatiomStatisticaL Analysis: of,
Ground-W-aieEMamitoring;Btata,af:
guidance, act de.tefrmining?grpinrd-wate]?
flow rkte^Valuesj for pcsrosity and
hydraulic conductivity shoufdib-e " - :
determined: by/fax5ilitiesiduring?thefr site
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51074 Federal Register / Vol. 56, No. 196 / Wednesday. October 9, 1991 / Rulesand Regulations
investigation activities. Hydraulic
gradients can be determined using a
simple calculation once ground-water
elevation data are available to draw
equipotential lines on a map of the
facility. Ground-water flow direction
also can be determined from a map
displaying equipotential lines.
e. Consistency With Subtitle C
Statistical Procedures
The proposed statistical procedures
were the same requirements as those
proposed on August 24,1987, for
hazardous waste disposal facilities
regulated under subtitle C of RCRA [see
53 FR 31948). Today's final statistical
procedures reflect comments received
on the final statistical package
promulgated under part 264 of subtitle C.
Comments on the statistics rule
promulgated under subtitle C addressed
the folk wing areas: (1) Power of a
statistical test; (2) methods to analyze
below detection limit data; (3)
establishing background concentrations
with downgradient wells; [4] guidance
document; (5) data distribution
assumptions; (6) obligation of owner or
operator to propose statistical methods
and sampling procedures; (7) data
variability and sampling procedures; (8)
procedures at interim status facilities;
(9) determining background
concentrations; (10) sampling required
by proposed § 264.98(g)(2); (11) type I
experiment wise error rate; and (12) time
intervals for ground-water s.ampling.
Comments also were received in many
of these areas on the proposed subtitle
D rule and have been discussed
previously in today's notice. Additional,
discussion of these comments is
contained in the preamble to the
October 11,1988 final rule which
outlines statistical methods for
evaluating ground-water monitoring
data from hazardous waste facilities (53
FR 39720).
Today's rule incorporates one
additional provision of the final subtitle
C statistical procedures rule that was
not specifically included in the proposed
subtitle D rule. In the proposed subtitle
C rule, the Agency invited public
comment on the methods available for
analyzing data where the background
level of a constituent is either below the
detection limit of the analytical method
used or is recorded as a trace level of
the constituent. The proposed subtitle D
rule required the owner or operator to
evaluate different ways of dealing with
values below the limit of detection and
choose the one that is most protective of
human health and the environment.
Several commenters to the subtitle C
rule requested EPA to consider
establishing national baseline values for
compounds that do not occur naturally
in ground water, and as a result are
frequently recorded as below the limit of
analytical detection in background
monitoring wells. Specifically, the
commenters suggested that EPA conduct
a round-robin study involving several
different certified chemical laboratories
to establish national baseline values for
these compounds.
The Agency did not establish national
baseline values for each constituent in
the final subtitle C rule, but instead,
required that the statistical method
chosen include procedures to evaluate
data that are below the limit of
analytical detection. The Agency also
added the requirement that any
practical quantitation limit (PQL) used
must be the lowest concentration level
that can be reliably achieved with
specified limits of precision and
accuracy during routine laboratory
operating conditions that are available
to the facility.
Accordingly, EPA has added the same
requirement to § Z58.53(h)(5) of today's
final rule. Appendix II of today's final
rule lists the method-specific PQL for
each constituent. These PQLs are the •
Agency's best estimate of the practical
sensitivity of the applicable method for
RCRA ground-water monitoring
purposes.
On July 9,1987, the Agency published
a final rule, "List (Phase I) of Hazardous
Constituents for Ground-Water ^
Monitoring" (52 FR 25942; July 9,1987)
listing practical quantitation limits
(PQLs) for specified analytical methods
capable of detecting Appendix IX
parameters. The PQLs were established
from "Test Methods for Evaluating Solid
Waste" (SW-^46). SW-846 is the
general RCRA analytical methods
manual, currently in its third edition.
The PQLs listed there and in Appendix
II of today's final rule represent EPA's
best estimate in 1986 of the lowest
concentrations of analyses in ground
water that can be reliably determined
within specified limits of precision and
accuracy by the indicated methods
under routine laboratory operating
conditions. These numbers do not
represent a determination of detection
limits in other matrices (55 FR 22540-42;
June 1,1990). The PQLs are included for
guidance purposes only and are not part
of today's regulatory requirements.
Regulatory authorities may find PQLs
useful in checking on a laboratory's
performance and in evaluating
analytical methods. A background
document containing information about
analytical methods and their established
PQLs can be found in the docket for this
rulemaking.
f. Sample Filtration
Many commenters questioned
whether the Agency was requiring
owners or operators to measure
dissolved (filtered samples) or total
concentrations (unfiltered samples) of ..
constituents in ground water. As
discussed below, the Agency believes
that samples should not be field-filtered
prior to laboratory analysis., \
During ground-water sampling, every
attempt should be made to minimize
changes in the chemistry of the sample
that may result in a non-representative
view of the subsurface environment. A
sample that is exposed to the •
atmosphere as a result of field filtering
is very likely to lose a significant
amount of volatiles, thereby providing
non-representative monitoring data.
Further, emulsion-trapped organics are
lost through field filtering. Field
filtration of ground-water samples for
metal analyses will not provide accurate
information concerning the mobility of
metal contaminants. Some mobile metal
contaminants may move through
fractured, Karstic, and porous media,
not only as dissolved species, but also
as precipitated phases, polymeric
species, or adsorbed to inorganic or
organic particles (e.g., colloids) that are
likely to be removed by filtration.
Therefore, § 258.53(b) of today's final
rule prohibits MSWLF owners and •
operators from field filtering their
ground-water samples in all cases. The
Agency recognizes however, that there
are certain circumstances where it is
necessary to filter or centrifuge the
sample under controlled conditions in
the laboratory prior to analysis to r
prevent instrument damage. Sample
filtration in the laboratory is permissible
if, after acid digestion, insoluble
materials (e.g., silicates) remain and
could clog the instrument nebulizer. If
this step is necessary, the filter and
filtering apparatus must be thoroughly
cleaned and prerinsed with dilute nitric
acid. Laboratory personnel should
consult SW-846 for information
concerning these procedures.
The Agency would like to note that
background-concentrations also will be
established on the basis of unfiltered
samples (as are MCLs) thereby
providing a consistent comparative
basis for data evaluation between
background and downgradient
monitoring wells."
b. Section 258.54 Detection Monitoring
The proposed rule set forth a list of
parameters that were to be monitored at
least semiannually (Phase I monitoring)
as the primary means of detecting
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Federal Register £ Vbf. 5$..No, 196, / Wednesday, .October 9, 1991 / Rulea and Reeulafi&is 51075
ground>water contamination during the .
active; life and closure of a unit.. Tie
actual monitoring fisequericy used was to
be based on thegrouTidrwater'flow rate
and the resource? value of the aquifer.
During post-clasureLcareyhoweveft the
proposed rule allowed: the State to set a
differentminimum frequency oil a, site-
speciffc-basiSi-Thepraposedimonitonng
parameters: included major cationsy
major anionsv metals, cyanide, and 46
volatile, organic compounds (VOCs)l.
The propasedrulesrequired thatait
owner or operator expand the: Phase; I;
monLtoring:program;to:Phase"ehernfcal Oxygen Demaftd£(3OD)r
.
(19} Chromium^
(20] Cyanide;
(21} Lead;,
(22) Mercury; .
(23) Selenium;
(24) Silver and
(25) The 46 VQCs listed in appendix L
In the preamble ta the proposed rule*
the Agency HivitedpubHc commenE on
this list of Phase I monitoring, '
parameters^ Piye commenters supported
the list of proposed parameters;,
however, the majority of commenters,
felt the list was too extensive for routine
monitoring and suggested it be reduced.
They contended that the amount of
required sampling, would not only
overwhelm MSWEF owners and -
operators who would perform and fund
analyses, but also would overwhelm the
States- who would5 need to devote time
for data reviewand analysis. :•"•'.
In ccntrast; several conimenters
suggested additions' to the Phase I;
monitoring list. Specifically, commenters
suggested adding tetrachloroethylene,
which is currently regulated under the
SafeDrinkmg Water Act, aDcaUmty (as
GaCOs), water temperature (to- aid in-
chemical conversions);, radioactive
contaminants, specific' conductance,.
carbonatei fecal bacteria,, biological
oxygen demand (BOD), organic nitrogen,
and total Kjeldahl nitrogen.
The Agency reevaluated the list of
detection monitoring parameters' in;
response to- these'5, comments. The'
Agency proposed the userof 46 VOCs as
indicator parameters because analyses
of available data1 show that VOCs are
more mobile than many/otherorgamc
compounds'. These compounds- are fairly
soluble in water and'fcavelowmolecular
weights, both of which lead to enhanced
mobility in ground water. Father, VOCs
do not tend to have a; high sorptiye
potential'on to matrix aquifer material.
Therefore, the Agency beleyea that
volatile organics would' be among the
best indicators for early detection of a
release and fcas retained them in
appendixi;
Commenters generally supported:
detection monitoring; for VOCs but
requested that seven chemicals be
deleted from Appendix 1 because of
analytical problems?
bromochloromethane,. 4-
bromofluorobenzenef. I,*-
difluorobenzene» ethanoj 2-chloroethyl
vinyl ether, ethyrmethacrylate, and
dichlorodifiaoromethaneiThe Agency
agrees that these chemicals should te
deleted1 frofrt detection njonttoring.
except for bromoeMbromet&ane. TKs
chemieal is smena&le to analysis by '
EPA Methods 8021 andB260. It is often-
used as sn; internal Standard, butihe
Agency believes that other standards
are available.Two chemrcalsv.4- '••
bromofluorobenzene andl^
difluorobenzene, were deleted because1
they are used as&ternal' staHdards for
mass spectrometry determination.; Four
others were deletedfor the fbllowing
reasons: E&anol, because it does*not
purge adequately fa the- purge-fap-
desorb teehnfque;'2K;hloroethyl vikyt
ether, becauseof poorpurging-and'
instability of standard solutions;; ethyl
methacrylate, forwhickconflictnig'
information has been received regarding
reliability of determination in routine
VOC screening analysis;-and?
dichlbrodifluoromet&anei because-it is^
the only analyze in this group: that
requires: charcoal in the-trapiand the
charcoal can reduce sensitivity; toother
Appendix I analyses,The fationafe and
data supporting each deletion isi '
discussed fully fe background "
; documents to this.ralev,
Eight chemicalis are added to the-
proposed VOCs listed in-Appendix F by
today's final rule:.I,2-dibromo-3-
chForopropane; l;2-dibromoethaner o-
dichlorobenzene;. p-diehlbrobenzenBr 1,2-
dichloropropane;'!,!,!^* •
tetrachlorpethane; tetrachloroethylener
and cis-l;2-dicHoroethylene. The^fn-st
seven areriir both the RCRA hazardous
waste constituent list fAppendix VHP of
. 40 CFR Part 261),: and the:ground-water
monitoring list (Appendix E£ of 46 CFR
Part 264); The-.cisrT^-dichloroethyleneis
in Appendix VHF as an unspecified
isomer and is included specifically
among VOCs proposed for addition to
the National Primary Drinking- Wkter
Regulatibns by EPA in May 1989 (54 ER
22062) imder the Safe Drinking Water-1
Act Today's rule amends; appendix ftp -
include each of thesefconstifuents
because the Agency believesr(l): These
, constituents may be present m .
MSWEEsr (2)reach^ of these, constituents
is of doneern-in the protection-of human
.health and the environmentr and (3f
, their: addition to* Appendix I will
increase-the ability to'deteet potential
migration orcontaminants to the ground
water from MSWEFs. However,
including t&ese constituents on the
detection monitoring list wiff not
increase the monitoring cost fa MSWLF
owners and operators because all of the
added VOCs can-be identified with the
same analytical method (Method 8260J"
as can be used tofdentify the other
VOCs Kstedrin Apgendfi* T, Therefore
the owner or operator wiB &e better able
to monf tor thegmund-water; while
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51076 Federal Register / Vol. 56, No. 196 / Wednesday. October 9, 1991^/Rules and Regulations
incurring no additional costs. Appendix
I of today's final rule now contains 47
VOCs.
A number of commenters suggested
that EPA limit the number of VOCs
required for analysis to a single
analytical method. Several commenters
requested that the list be limited to
those VOCs that can be analyzed by
EPA Methods 601,802. and 624. One
commenter implied that EPA Method
8240 be recommended. In response to
these comments, the VOCs on today's
final Appendix I list are amenable to a
single method. The Agency believes that
Method 8260 (capillary column) is the
preferred scanning method for all of the
VOCs on Appendix I because of its
ability to analyze for a large number of
compounds; however, the Agency is not
requiring a specific method in today's
final rule.
The proposed rule identified eight
metals to be analyzed during the first
phase of monitoring: Arsenic, barium,
cadmium, chromium, lead, mercury,
selenium, and silver. Several
commenters suggested that the metals
be removed from monitoring, though one
commenter suggested the list of metals
be expanded to include copper, nickel,
and zinc. Most commenters implied that
the metals should be deleted because of
their lower mobility. While the Agency
agrees that metals are less mobile than
the VOCs and that they may be less
significant in indicating a release from a
newer MSWLF than the VOCs, the
Agency believes that the metals pose ;
serious threats to human health and to ,
the environment. Recent scientific
studies (available in the docket for this ,
rule) have shown that metals may
undergo a facilitated transport
phenomenon through sorption to
colloidal particles. This process makes
metals more mobile in ground-water
than previously thought. Further, since
the geochemical parameters have been
eliminated, the metals will provide a
direct indicator for inorganic releases to
the ground water. Therefore, the Agency
requires monitoring for specified metals
in appendix I of today's final rule.
The Agency has, however, revised the
list of metals for detection monitoring. In
response to comments, the Agency has
added copper, nickel and zinc. The
Agency has also added antimony,
beryllium, cobalt, thallium, and
vanadium to the required metals in
appendix I. The Agency added these
eight metals to the detection monitoring
list because they are representative of
MSWLF leachate. Additionally, all of
the metals are amenable to the same ICP
scan, and will not significantly increase
the cost of the monitoring requirements.
The rationale and data supporting the
use of these parameters is discussed
fully in background documents to this
rule.
The Agency notes that mercury and
cyanide were originally proposed as
constituents for detection monitoring.
However, neither are amenable by the
ICP scan method and thus both require
separate analytical methods. The
Agency does not have specific
information indicating that their
addition to appendix I would improve
the ability to detect a release from a
MSWLF; therefore, in today's final rule,
EPA is not requiring analysis of these
two compounds during routine detection
monitoring. However, because of
potential threats posed by cyanide and
mercury, they have been retained on
appendix II and are required for
analysis during assessment monitoring
to determine their presence in ground
water.
A number of commenters supported
the use of the inorganic geochemical
parameters that were included on the
proposed list of appendix I parameters
(parameters 1 through 15). The majority
of these commenters indicated that
these parameters, or a subset of them,
provide the best indication of a release
from the MSWLF and can be
economically analyzed. One commenter
indicated that they have witnessed a
long history of ground-water monitoring
at MSWLFs and found that the
geochemical parameters performed well
as indicators of a release to ground
water. Several commenters however,
objected to the commonly and naturally
occurring inorganic geochemical
parameters that were included on the
list. These commenters alleged that
these constituents exhibit natural spatial
and temporal variability and may
falsely indicate releases.
After careful consideration of these
comments, EPA has decided against
requiring the use of geochemical
parameters in detection monitoring
(appendix I) for several reasons. Eleven
of the proposed parameters are
naturally occurring in soils and ground
, water. The remaining four parameters,
COD, TDS, TOG, and pH, are common
test parameters that are not specific to
any one element or class of man-made
chemicals. Moreover, the Agency notes
that natural variability [both temporal
and spatial) of the geochemical
parameters is extremely difficult to
characterize, especially in
heterogeneous hydrogeologic settings.
This could lead to an excessive number
of false positives and false negatives
during detection monitoring. Also,
changes in the geochemical parameters
have not been correlated with fate and
transport characteristics of hazardous
constituents from MSWLFs. Finally, the
analytical costs associated with
monitoring a large suite of geochemical.
parameters (e.g., fifteen, as listed in the
proposed rule) may significantly exceed
the cost of'an analytical scan method
(e.g., inductively coupled plasma (ICP)
emission spectroscopy for metals), that
has the capability of providing
information on many more hazardous
constituents. For these reasons, the
Agency did not retain the proposed
geochemical parameters in appendix I of
today's final rule. However, in response
'to the relatively large number of
commenters in support of the
geochemical parameters, the Agency isi
allowing approved States the flexibility
to use the geochemical parameters in
lieu of some or all of the heavy metals
on a site-specific basis. This flexibility
will be discussed below.
One commenter suggested creating
different lists of indicators for various
waste types. However, the Agency does
not believe that wastes in all MSWLFs
can be characterized as homogenous.
The various lists would place an
increased burden on the owner or
operator to characterize the waste in tide
landfill in order to choose a specific list
of monitoring parameters. Therefore,
EPA believes that one comprehensive
monitoring list is appropriate. The
Agency realizes that it is difficult to
create a detection monitoring list that is
capable of identifying every possible -
release. Therefore, the Agency
developed a minimum list that should be
able to detect, with reasonable
confidence, nearly every type of release
from a MSWLF while considering the
practicable capability of the regulated
community. This list of parameters, as
specified in appendix I, includes the 15
metals and 47 volatile organic
compounds discussed above.
It is possible to analyze all of the
required detection monitoring
constituents in appendix I by using only
two analytical "scan" methods; a gas
chromatogfaphic/mass spectroscopic
procedure (GC/MS) for the' volatile
organic analyses and inductively
coupled plasma emission spectroscopy
(ICP) for the metals. EPA is not,
however, requiring the use of the GC/
MS or the ICP spectroscopy. The Agency
believes these methods involve high
identification reliability, although they
are not the only or necessarily the best
methods for achieving the lowest
detection limits for any specific analyze.
The Agency has considered the
practicable capability of the regulated
community in selecting the constituents
-------
Federal
.J°L.5,6;.ff°: .ffiL Wedn6sday- October 9. iQgi/ Rules and Regulations 51077
for detection monitoring and believes
that the final appendix I list is sufficient
to protect human health and the
environment while avoiding
unnecessary analytical costs.
Due to the self-implementing nature of
today's final rule, the Agency believes it
is necessary to identify a minimum set
of parameters for detection monitoring.
However, in response to a number of
comments that were received, the
Agency is allowing approved States to
specify a set of indicator parameters for
detection monitoring on a site-specific
basis. To provide approved States with
additional flexibility, § 258.54(a)(l) of
the final rule allows an approved State
to remove constituents from the
detection monitoring list if it can be
.determined by an approved State that a
constituent is not reasonably expected
to be in, or derived from, the waste
contained in a MSWLF unit. The Agency
believes that an approved State would
delete parameters from the detection
monitoring list only in rare instances
where the owner or operator of the
MSWLF can demonstrate definitive
knowledge of the nature of the waste
being disposed in the landfill. This may
occur where the chemistry of the waste
is uniform (homogeneous) throughout,
such as in municipal waste combustion
(MWC) ash monofills. Additionally, an
owner or operator of a new MSWLF
who maintains accurate records of
waste placed in the landfill (via a
comprehensive waste analysis plan)
may be able to show the unlikelihood of
certain constituents appearing in '
leachate emerging from the landfill. In
these situations, an approved State may
conclude that some of the appendix I
constituents are not appropriate for
. ground-water monitoring at that
MSWLF, This variance is not available
to MSWLFs in non-approved States due
to the self-implementing nature of
today's final rule.
:In addition, § 258.54(a)(2) of today's
rule allows the Director of an approved
State to establish an alternative list of
inorganic indicator parameters for a
MSWLF unit to be used in lieu of-some
or all of the heavy metals (parameters 1
through 15 in Appendix I) if the
alternative parameters provide a
reliable indication of inorganic releases
from the MSWLF unit to ground water.
In determining the alternative
parameters, the Director must consider
the factors outlined in § 258.54(a)(2] (i)-
(iv). Although the Agency generally feels
* that geochemical parameters may not be
the best indicators of a landfill release
(for reasons discussed earlier in this
appendix); the Agency feels that the
'geochemical parameters may be
reasonable indicators in those instances
where natural background levels, are not
so high as to mask the detection of a
statistically significant release or where
there is minimal natural spatial and
temporal variability in the geochemical
parameters. EPA would like to stress
that (1) this alternative list may only be
granted by an approved State on a site-
specific basis because ground-water
chemistry may vary from site to site.
within a State; (2) the alternative list" ,
may contain both metals and ,
geochemical parameters because a
complete replacement of metals with
geochemieal parameters may not be
protective in all instances; and (3) this
alternative list does not allow removal
of the volatile organic constituents
(parameters 16 through 62 appendix I).
b. Monitoring Frequency
The Agency requested comments on
the minimum semiannual monitoring
frequency f9r Phase I presented in the
proposed rule. The proposal required
Phase I ground-water monitoring at least
semiannually during the active life and
closure of a unit. The actual monitoring
frequency required-by States was to be
based on the ground water flow rate and
the resource value of the aquifer. During
post-closure care, however, .the
proposed rule allowed States to set a -
different minimum frequency on a site-
specific basis. '.
The Agency received varied
comments on the proposed minimum.
semiannual monitoring frequency. A few
commenters supported the minimum
semiannual monitoring frequency while
one commenter suggested that
monitoring be required quarterly.
Several commenters suggested that the
minimum semiannual monitoring
frequency was excessive and requested
only annual monitoring. A number of ;
commenters favored allowing owners
and operators to demonstrate an
appropriate sampling frequency for their
facility based on the flow rate within the
underlying aquifer. Finally, some
commenters supported a phased
approach for Phase I monitoring. This
scheme would allow owners and ' '
operators to monitor semiannually for a
subset of the parameters (e.g., the
geochemical parameters) and monitor
annually, or less frequently, for the
remaining parameters (e.g., the metals or
VOCs).
The Agency originally proposed, a
semiannual monitoring minimum to
prevent large volumes of ground water
from being contaminated due to
inaccurate measurements or unexpected
variability in ground-water flow
velocities. The Agency recognizes that
across the United States, ground-water
flow velocities can range from several
feet to greater than 2,000 feet per year.
In some geographic areas, a minimum ,
annual monitoring frequency could
allow contamination to travel
considerable distances before detection.
In areas with low ground-water flow
velocities, the Agency recognizes that
quarterly monitoring could be overly
burdensome. The Agency believes that
the semiannual minimum monitoring
- frequency strikes a balance between
protection of human health and the
environment and the practicable •-'
capability of the regulated community.
This also is the minimum monitoring
frequency required for hazardous waste
disposal facilities (40.CFR part 264
subpart F). In addition, due to the self-
implementing nature of today's final
rule, the Agency believes it is necessary
to set a minimum monitoring frequency.
Therefore, today's rule requires a
minimum of semiannual detection
monitoring for owners and operators'.in
States with unapproved programs.
The Agency realizes, however, that
the need to vary monitoring frequency
may make sense in certain situations
and should be evaluated bii a site-
specific basis. The sampling frequency
chosen by the MSWLF must be
sufficient to protect human health and
the environment (§ 258.53(c)j. For
example, depending on the,flow rate of
the ground water and the resource value
of the aquifer, less frequent monitoring
may be allowable or more frequent
monitoring may be necessary. For this
reason, the Agency is allowing approved ,
States to specify an alternate frequency
for repeated sampling and analyses for
appendix I constituents during the active
life (including closure) considering the
following factors: (1) Lithology of the
aquifer and unsaturated zone; (2)
hydraulic conductivity of the aquifer
and unsaturated zone; (3) ground-water
flow rates; (4) minimum distance
between upgradient edge of the MSWLF
unit and downgradient monitoring.well
screen; and (5) resource vahie of the
aquifer. However, the minimum
" frequency during the active life
(including closure) must be no less than
annual. Additionally, because there may
be a lower probability of releases from a
closed MSWLF, the Agency also is '
continuing to allow approved States to
set alternative frequencies for
monitoring during the post-closure care
period based on the above-mentioned
factors.
Finally, the Agency considered the
monitoring schemes suggested by
commenters whereby owners and
operators would monitor semiannually
for a subset of the monitoring
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51078 Federal Register / Vol. 58, No. 196 / Wednesday,
parameters and monitor less frequently
for the remainder. The Agency believes
that this approach would, in a sense,
create a complicated three-phased
monitoring program. As discussed
earlier, the majority of commenters
requested that the final rule be
simplified. The Agency, therefore, has
attempted to simplify all aspects of
today's final rule while ensuring, that the
requirements are adequate to protect
human health and the environment. For
this reason, the Agency did not
incorporate the monitoring schemes
suggested by these commenters.
c. Assessment Monitoring Trigger
The proposed rule required the owner
or operator to initiate Phase H
monitoring if there was a statistically
significant increase overljacTcground (or
decrease in the case of pH) for two or
more of parameters Cl) to (15), or a
statistically significant increase over
background for any one or more of
parameters (16) to (24) or any of the
VOCs listed in Appendix I. The Agency
chose to require a statistically
significant increase (or decrease) in two
or more of the geochemical parameters
as a trigger for Phase II monitoring
because many of these parameters could
be elevated by human activities (e.g.,
agriculture) or natural geologic and soil
variations.
A few commenters objected to the
triggering mechanism outlined above
because, in their opinion, it ignored the
geochemical correlation among several
of the parameters. They asserted that
relying on statistical changes in one or'
two of the indicator parameters would
lead to false positive readings.
Cdmmenters requested that the Agency
increase the number of parameters
which must exceed background at a
statistically significant level.
Because the Agency deleted the
geochemical parameters from today's
final rule, the Agency believes that the
commenters' concerns have been
addressed. The detection monitoring
parameters provided by today's final
rule do not exhibit the high degrees of
spatial variability in most
hydrogeological environments as do the
proposed geochemical parameters.
Therefore, § 258.54(c) of today's final
rule requires an owner or operator to
begin assessment monitoring if there is a
statistically significant increase over
background for one or more of the
constituents listed in appendix I.
Because pH has been deleted from the
list of detection monitoring parameters,
the determination of a statistically
significant decrease does not require an
owner or operator to establish an
assessment monitoring program. It
should be noted that the assessment
monitoring trigger will not change even
if the Director of an approved State
allows the use of geochemical
parameters in lieu of some or all of the
heavy metals. In the situation where an
owner or operator suspects that a
statistically significant increase in a
geochemical parameter is caused by
temporal or spatial variability, the
owner or operator will have to
demonstrate that this increase was due
to natural variation to avoid proceeding
to assessment monitoring. A discussion
of this demonstration is found in section
(d) below.
d. Response to Statistically Significant
Increase
Proposed § 258.54(d) required that an
owner or operator expand the Phase I
monitoring program to Phase II
monitoring when two or more of
parameters (1) to (15), any one or more
of parameters (16) to (24), or any of the
VOCs listed in Appendix I were
detected at levels that significantly ,
differed from background levels. At the
point that Phase II monitoring was
triggered, the owner or operator was to
notify the State of this finding within 14
days, and was to begin a Phase II
monitoring program within a reasonable
time period as determined by the State.
Within seven days of triggering Phase II
monitoring, the owner or operator couM
notify the State that he or she intended
to demonstrate that detection of
significant changes in ground-water
quality during Phase I monitoring was
caused by sampling or analytical error,
or caused by a source other than the
MSWLF. The owner or operator then
had 90 days, or an alternative time
period approved by an approved State,
in which to complete this demonstration.
Such a demonstration may show that
false positives (i.e., when a test
incorrectly shows contamination or an
increase in contamination) were caused
by errors hi sampling (e.g., improper
decontamination procedures of non-
dedicated bailers), analysis (e.g., lab
contamination of sample with internal
standards such as methylene chloride),
statistics (e. g., false positive problems
associated with many comparisons),
and/or natural variation in ground-
water quality (e. g., temperature and
spatial variability). If the demonstration
proved that the contamination was not
from the MSWLF or was based on
inaccurate results, the owner or operator
could halt Phase n monitoring.
Many commenters supported the
availability of this demonstration
provision. One commenter stressed that
Phase II monitoring should not be
delayed until the demonstration is
completed, however, because of the
possibility of additional contamination.
The Agency agrees with the commenter.
Section 258.54(c) (3) of today's final rale
requires the owner or operator to initiate
an assessment monitoring program if,
after 90 days of determining a
statistically significant increase over
background for any of the constituents
listed in appendix II, the owner/ *
operator cannot perform a successful
demonstration. This timeframe was
proposed as the time allowed for an
owner or operator to complete the
demonstration that the statistically
significant increase resulted from a
sampling or analysis error or that
contamination resulted from a source
other than a MSWLF.. Although
approved States may modify the 90 day
time period (§ 258.50(g)), the 90 day cut-
off now sets a definitive .time frame for
purposes of self-implementation of
today's rule.
A few commenters requested thai: the
time allowed for making the
demonstration be extended (e. g., to 180
days). They asserted that it would take
' more than 90 days to resample and have
laboratories conduct new analyses.
They further added that it would take
more than 90 days to conduct field
investigations to determine that another
source is causing the contamination. The
Agency recognizes that it could take
more than 90 days to make the
demonstration, and as a result,
§ 258.54(c) (3) of today's final rule does
not place a time limit for owners and
operators to complete the
demonstration. However, if after 90 days
the owner or operator has not made a
successful demonstration, (s)he must
begin an assessment monitoring
• program. Any owner or operator miay
demonstrate that the statistically
significant increase resulted from an
error in sampling, analysis, statistical
evaluation, or natural variation in
ground-water quality, or was caused by
a source Other than the landfill, but. this •
activity does not waive the
responsibility of the owner or operator
to establish an assessment monitoring
program, after the allotted timeframe.
Owners and operators in approved
States should note that the Director of
an approved State may modify the 90
day tune period for a successful
demonstration pursuant to § 258.50 (g). If
the demonstration proves, after
assessment monitoring has been
initiated, that the contamination was not
from the MSWLF or was based on
inaccurate results, the owner or operator
may cease assessment monitoring and
return to detection monitoring. If the ,
demonstration-is successful, the owner
-------
or operator is required by § 258.54 (c) (3)
to place a notice in the operating record.
Today's final rule no longer requires the
owner or operator to notify the State of
his or her intent to make the •
demonstration because of the self-
implementing approach of the final
.regulations. However, because today's
final rule is self-implementing, the
owner or operator must have the
demonstration certified by a qualified
ground-water scientist - ;
Several commenters also requested
that the timeframe for notifying the
Stateof a statistically significant' '•--.-
increase be extended (e.g., to 30 days).
The commenters believe that the
1 proposed tiineframes place an ;
unnecessary burden on the owner or
operator without a gain in protection of
human health and the environment.
Although, the Agency does not agree
with the commenters that the 14 day
timeframe places a burden on owners
and operators, the Agency has decided
that States should ;have the flexibility to
set their, own time frame for notification.
Therefore, today's rule requires a 14 day
period, for self-implementation
purposes, or, an alternative period
designated by the Director of an •
approved States. In addition, because of
the need to provide for a self-
implementing approach to today's final
rule, owners and-operators are required
by § 258.54(c) (l) to also place a notice
m the facility's operating record within
14 days of finding a statistically
significant increase over background for
one or more of the constituents listed in
appendix I. Again the Director of an
approved State may elect to modify this
timeframe. .
7. Section 258.55 Assessment Monitoring
The proposed rule required initiation
ol Phase II sampling and analysis if the
owner or operator determined that the
ground water exhibited significant
increases (or decrease in the case ofpH)
over background levels for two or more
of parameters (1) through (15) or one or
more of parameters (16) through (24) or
the Appendix I VOCs. The purpose of
this second phase of grpundwater
monitoring was to determine the nature
and extent of the release to ground
water. Triggering Phase II monitoring ,
did not necessarily indicate a threat to
human health and the environment.
Rather, entering Phase II monitoring
signaled the. need to analyze for a more
extensive list of ground-water analyses
and to determine if any of these
constituents have exceeded health-
based trigger levels.
Proposed § 258.55(c) required owners '.
and operators in Phase II monitoring to
sample all wells and analyze those
samples for all constituents identified in
appendix II to determine which
constituents were present at levels '
statistically significant above
background concentrations. This
, activity Was to be completed within 90
days of triggering Phase II monitoring or
an alternate time period approved by
the State.Jf ihe owner or operator
determined that none of the Appendix II
constituents exceeded background at
statistically significant levels, pursuant
to § 258.54(d), the State was to ;;
determine the appropriate frequency for
repeated sampling and analysis of all
appendix.il constituents. Section
258.55(e) of the proposed rule allowed
the owner or operator to return to Phase
I monitoring if no constituents were
detected above background levels
during a specified time period. The State
was to determine an appropriate period
of time to require the owner or operator
to remain in Phase n monitoring, based
on consideration of specified factors,
before allowing a return to Phase I. ''-••',
If any appendix II constituents were
detected at statistically significant
levels over background in either the
initial or repeated testing, the owner or
operator was to notify the State within
14 days and within 90 days, and
quarterly thereafter* sample and analyze
for those constituents present above
background. The State also was .
required under proposed § 258.55(d) to
specify an appropriate frequency for a
iull appendix IT analysis to determine if
jmy additional constituents had entered
the ground water at concentrations that
exceed background at statistically
significant levels. Proposed § 258.55(g)
required the owner or operator to notify
the State and submit a report on the
concentration of any additional
appendix II constituents detected above
background levels within 14 days.
If any of the appendix II constituents
were detected at a statistically-
significant level above the ground-water
trigger level established under proposed
§ 258.52, the owner or operator was to
notify the State, assess corrective
measures required under § 258.56, and
continue Phase II monitoring. Before
assessing potential corrective measures,
the owner or operator could
demonstrate, under § 258.55(h) (4), that a
sourqe other than the landfill was '
causing the contamination or that the
increase resulted from sampling or
analytical error. ,; •
The Agency received several
comments in favor of eliminating Phase
II monitoring (now assessment
monitoring) and requiring the owner or
operator to implement corrective action
once statistically significant increases of"
the Phase I monitoring parameters
occurred. These commenters believe
that Phase II monitoring will not result
in increased environmental protection
and will delay remedial activities. They
believe that the elimination of Phase'II
monitoring will lead to more rapid
implementation of corrective action. -'
The Agency believes that the owner
or operator must determine what
contaminants have entered the ground
water and understand the extent of the
plume to develop an efficient and
effective corrective action program. The
purpose of assessment monitoring
(Phase Ilmonitoring) is to evaluate,
rather than detect, contamination. The
Agency believes that this second phase
of monitoring'is essential for evaluating
the nature and extent of Contamination
and has retained it mtoday's final -rule.
The proposed rule did not require the
owner or operator to continue Phase I
monitoring after triggering Phase II
mpnitoring'requirements. In the
preamble to the"proposed rule, the
Agency noted that States may require
an owner or, operator to continue
"occasional monitoring or particular
Phase I monitoring parameters during
Phase II monitoring, particularly if that
State has established corrective action
requirements that involve those
parameters. Two commenters objected
to the lack of continued monitoring and
requested the Agency to require Phase I
monitoring to continue after Phase II
monitoring has been triggered. Because
of the need to provide for a self-
implementing approach to today's final
rule, the Agency agrees that.it is
necessary to require continued
semiannual monitoring for the appendix
I constituents during assessment
monitoring (or an alternative frequency,
no less than annual, set by the Director
of an approved State) and has amended
§ 258.55(d)(2) accordingly. Similarly,
§ 258.56{b) requires the owner or
, operator to continue monitoring for
appendix I constituents along with the
appendix II constituents during the
evaluation of corrective measures.
The Agency received numerous •. - .
comments on § 258.55 of the proposed
rule. The majority of the comments
received were on the list of constituents
in appendix II. Other commenters
addressed the. following areas: Different
phases of monitoring, full appendix II
analyses, return to Phase I monitoring,
background determination for appendix
II constituents, monitoring frequency,
and notification of contamination, to
name a few. These comments, along -
with Agency responses, are discussed
more fully in the following sections. This
section also addresses comments on the
-------
51080
••••••K
determination of the ground-water
protection standard originally proposed
in § 258.57.
9, 1991 / Rules and Regulations
a. List of Constituents
The Agency proposed a list of
appendix II constituents that were
known to pose a risk to human health
and the environment and that could
potentially migrate to ground water. The
proposed constituents were similar to
those used in compliance monitoring at
hazardous waste disposal facilities
under subtitle C of RCRA [40 CFR part
205 appendix LX). Appendix II, as
proposed, included almost all of the
appendix IX constituents; plus
additional constituents that are not
included on appendix IX (e.g., Superfund
indicators). Several of the constituents
that are listed in appendix IX, also
proposed in appendix II, are suspected
to have analytical problems and the
Agency is considering their removal
from the appendix IX ground-water
monitoring h'st. The proposed appendix
II list was chosen because any of the
proposed constituents could be present
in toe wide variety of wastes disposed
at MSWLFs and could be present in
ground water beneath facilities at levels
threatening to human health and the
environment.
The Agency requested comment on
the proposed list of 248 appendix II
constituents. In general, the commenters
thought the list was excessive with only
one commenter supporting the h'st of
constituents.
Several commenters suggested that
the appendix II parameters instead be
selected by the State based on site-
specific factors such as operational
history of the site, the type of waste
accepted, and previous analytical data
on leachate samples. However, as
discussed hi the proposed rule, this
approach is unworkable for sites with
no leachate collection system [including
the majority of existing landfills).
Additionally, it does not account for
degradation processes occurring during
constituent migration through the
unsaturated zone and ground water. It
would require periodic resampling of the
leachate to account for the wide
variations in leachate composition over
time. The Agency also believes that it
may be difficult to determine the types
of wastes that may have been
historically disposed in many MSWLFs.
However in response to these comments
requesting a site-specifio list, the
Agency is allowing approved States, in
§ 258.55(b), to modify the list of
constituents in appendix II if it can be
determined that a constituent is not
reasonably expected to be in, or derived
from, the waste contained in the unit.
Approved State modification of the
assessment monitoring parameter list
may occur only in rare instances. These
circumstances are discussed earlier in
this preamble with regard to
modification of the detection monitoring
h'st of parameters (§ 258.54(a)). Under
these circumstances, an approved State
may conclude that some of the appendix
II constituents are not appropriate for
ground-water monitoring at that
MSWLF.
A number of commenters requested
that the Agency develop a new list of,
monitoring constituents consisting of
compounds that have been identified in
MSWLF leachate. This option had been
considered for the proposed rule, but
was rejectedvbecause of limitations of
the MSWLF database. As explained in
the proposed rule, EPA's current data on
59 landfills identifies 112 compounds
that have been found in MSWLF
leachate. In most cases, the list of
constituents analyzed for at a particular
landfill was unknown, so these data
may not indicate the full range of
constituents that may be found in
MSWLF leachate. Further, many of
these compounds present analytical •
problems or require specialized
analytical methods making them
inappropriate for routine analysis. For
these reasons, a list of compounds
limited to those found in MSWLF
leachate was not proposed and has not
been incorporated into today's final rule.
In response to the criticisms of tho
commenters, however, the Agency did
reevaluate the list of appendix n
constituents. The Agency considered
two options for revising appendix II: (1)
Finalizing appendix n as proposed; and
(2) making specific additions and
deletions from proposed appendix n.
The first option considered was
finalizing appendix II as originally
proposed. This would have resulted in a
list of 248 compounds. The Agency
chose not to finalize proposed appendix
n, however, based on consideration of
commenters' objections. In particular,
commenters remarked that the list
contained a number of compounds
which either could not be measured
using existing technology or presented
analytical problems. Several .
commenters also objected to the
naturally occurring compounds on the
list such as calcium, magnesium, and
sodium.
. In response to numerous comments on
the proposed constituents, the Agency
has revised appendix H. As discussed
below, the Agency evaluated specific
additions to and deletions from
proposed appendix n and adopted
assessment monitoring constituents
similar to those presently listed in
appendix IX of 40 CFR part 264.
Appendix II is not identical to appendix
IX due to expected proposed revisions
to appendix LX. The most up-to-date
information concerning analytical
methods, degradation products,
hydrolysis products, and chemical
properties (i.e., adsorption to soil) was
used to develop appendix II, and also
will be used to propose consistent
revisions to appendix IX.
For several reasons, EPA believes that
it is appropriate for constituents on .
appendix II to generally be consistent
with the constituents required for ,
compliance monitoring under subtitle C
of RCRA, First, hazardous wastes were
routinely disposed of in municipal solid
waste landfills before, the amendments
to RCRA were promulgated in 1980 (45
FR 33154; May 19,1980). Second,
municipal solid waste landfills may
receive hazardous waste from small
quantity generators (SQG) and
household hazardous waste (HHW).
Multiple SQG's and multiple sources of
HHW may collectively result in
substantial quantities of hazardous
wastes at MSWLFs. Further, MSWLFs
may not have adequate engineering
controls (e.g., either a natural or
synthetic liner and a leachate collection
system), to prevent hazardous wastes
from contaminating ground water. For
these reasons, the Agency believes it is
appropriate to provide for consistency in
selecting ground-water monitoring
analyses for both solid waste and
hazardous waste disposal facilities.
The specific additions to and
deletions from proposed appendix II
were based on: (1) The feasibility of
determining compounds of concern in
ground water by standard screening
methods, and (2) comparison with the
ground-water monitoring list for
hazardous waste facilities. Appendix II
as finalized consists of 214 constituents.
Fourteen constituents are added to
proposed appendix H by today's final
rule. Nine of these constituents currently
are required for compliance monitoring
for hazardous waste facilities. The
remaining constituents have been added
to appendix E because they have either
been detected at high concentrations in
ground water samples collected from
RCRA subtitle D facilities or because
they are likely to exist in the variety of
wastes managed at MSWLFs arid are of
concern in the protection of human
health and the environment. The
constituents added to today's final
appendix II will not necessarily add to
the analytical costs of ground-water
monitoring; however, because the
additions are amenable by the same
-------
Federal Register / Vol. se
'^^^^^^^^L^L£^^ andmegulato
sct^n methods capableiof,eompleting,the
final appendixill.analysis. The
constituents,added by.todayls final rule
arepres,ented,in Iabie>I.,Specific .
reasons for eachofrthe additions, are
cpntained:m.the;b:ackgrpund,,dacument
for today's final rule
Thirty-nine Gonstituehts.onprqposed
^ appendix JLhaveiheen deletediby
today's finalrule, The list of deleted
constituents risjpreaented.in Table <2,
Several -raunmenters, suggested .that
severalmetelsran.appendix'H couldrb.e
found natuEally.in,;gro.undwater.,.ana,
therefore,,should npt.be usedifor
assessment monitoring. The Agency
agrees with-the cprnmenters. Although
these metals are used bjithe Agency,as
Superfund mdicator bompo.unds,,roiitine
testirjg,auring assessmentrjrnpnitprinjg ?at
all MSWLEsfisinot appropriate [because
they are not .toxic;atithe,le,v,els;found
naturallyJn ground .Water. Another
metal 'ffluoriae) is.fo.unajiaturalty as an
inorganic ion,lanawas.ae'le'teafor,;the
same.reason. Seweral .commenters-also
suggestea.lhat.ajiuniber of-the proposed
appendix3I .constituents 'fe,g., .1,3-
benzenedipl. oxiranB, benzenefhidl,
• nexachlprpphene),aTejiot,easily
detectea;by,c.urrerit,analy.tical,methctas.
The Agency revdewed-appenaixJI and
aeleteaawerity-nine cpnstituents
because .dtserious staoility or analytical
limitations ;by ,standara'SWHB4B
methods. Specificjeasons for,,each of
the deletions.aretgiven'in the
backgrouna document for .today's final
rale. The Agency3s .similarly, assessino
the appropriateness .o'f all appendixTX
constituerits'basea on considemtion of
the information usea'in the aevelopmprit
of appendix'II.
^Qne,Gommenter,expresseH>conceEn
about thejnonitoringj:e§uirements'for
dibenzofuran.'The^ontmon name for,
dibenzofuran in the proposed rule listed
variouspoly-chlorinated dihenzofurans
as well as the uncKlorinated
dibenzoTuran. After^urther review of
available;grouna-water;information, the
Agency pdeleted fhe;polychlorinatea
dibenzdfurans.as wellras 2,3i7;8-
tetrachloroaibenzo^p-aioxln'fincluding
the polychlorinated dibenzo-p-dioxins.)
from appencUxirbecause they^have
been«analyzed for andthave not-been
detected in-grpund-water samples
cpllected'frpm'RCRA'fmuriiclpalana
hazardous waste) and'CEKGLA facilities
because of their.slrong.adsorption.to. •
their strong, adsorption;to soil, they also
have rareVbeen detectedin surface
water. Adaitionallyv these obmpoimas -
requires speciaLarialyticail'GC/MSi .
'inethpdtaiSimatically increasing the^c
.ofassessmentmonitOTing.'Ther^for^
after consideration of :the,practicable
capabilities of owners and^'operators,
and the fact thatsthese contaminants are
rarely found in ground water, EBA.,does
not JDBlieve'it is^necessary to routinely
require the awrierior ,op.erator;to analyze
ground-watercsamples forithese
compornds aspart.of the.assessment
monitoringjjrogram: Altho.ugh today's
final rule.dQes.not'require monitoring: for
these compounds,States arenot
precluded from;reguiringianalyses,for
these compounds,,onasitetspecific
basis. However, "the-unchlorinated
dibenzofuranihas beenjetained on
appendix II,;because it as •amendable^by
Method,8270 whichsis ,a, suggested
method lor .analyzing .otherappendix II
constituents during«assessment
monitoring.
The Agency notes that appendix-JI is
likely to change over time as
modifications are made'ui'analytical
methods for /detecting contaminants.
Today's finalappendixjlisibasea upon
currently .available analytical
technology ana;,consiaeratiQn of .the
practicable,capabilitytof owners and
opera tors .ofMSWLEs. With the
development and standardization of
new techndlpgieSiandmethoas,
appendix H will.likeTy. needfuture
revisions.,EEAielieves,that:the'list of
constituents'presentedan appendix H.df
today's final nileimeets ,ihe .overall
objective- of-assessment monitoring, that
is, to ensure monitoring which .evaluates
the .nature .of.ajrelease fcomAMSWLF to
ground water.
Goncurrent-with.the :adaiflonlist;b.ysalphabetic,common
name.Jn.keepingOTithihe.formused.m
other Agency lists. As. requested by
several .cpmmeriters, 'the Agency-als.o.is
incluaing,some,suggestea,methbas.fr.om
Test Methods:lor Evaluating Solid
Waste, Third:Edition;(SW-^4i6)and
estimates of a,mefhodTspecific,PQL for
eachvconstitaent. Additionally, technical
corrections tp a nuniber of name
spellings,have been made and several
Arodlors are.riow'lis;ted under
pdlycHlorinatea'bip'henyls.
Finally,'theAgencylbelievesihat
today's jjQrnptehensive "list of .appendix
II constitueritslis essential for pmviaing
a check on'the performanceof .the
lanafill,design,ana operation-Under
today's rule, owners and operators iin
•approved iSMtes-may design their
landrjll.inaceoraance;with & •
perfprmaiair standard based on a more
.limited s
(see ^§ ,25B;4Q); As'discussedteadierm
this preamble, EPA.limited this
performance standard to cpnstituents
with,JEPA approved standards ,(i.e.,
MGLs)-to provide-an-approach-that
could,beieffe,ctivelyiimplemente,d
considBring ahe.technicaLcapabilities. of
the regulated community.-EPA-believes
it is, appropriate'to specify a "-
camprehensive;Ust of compounds Tor
assessment.monitortogdfori;two;reas.ons.
First, -such a:comprehensive@.et,;Unercand
leachate coflection'system
regukements). Second, ithe/owner-or
operator is required'to routinely
evaluatefonlyihosficappendixdl "
cpnstituents :that,are.detected,in the
ground water, thereby'limiting impacts
on the pwjieri or operator,
.^ADDLTIONS TO ARPENDixtll
2-Chlotoethyl.Bfhyl ether, ____ ;.
m-Cresol; 3rMethylphenol.. .....
Diallate ......„..''
,™..
1 ,3-DiclilofopropanB; iTrimeth*lene"di-
chlorida ______________ _„. ______ ______
2,2-Dichlofppmpane; ilsppnspyiidene
chloride -........_.........._„.....„.„.„..
1.,1-Dfchlorqpropene... ____ . ___ ....._ . .....
Dimethoate. _____ . _______ ............... ....... ™
EndosOlfantsulfate __ .".l:.Z!Z.Z.l""'
Ethyl methanasulfDnate ______ ._..!.;...!„.
p-Phenylsnediamine _________ ... ___ . _____ .'.'
o-Toluidine ________ _. __________ „._....._.........!'""}
O,O,OiTnethy|.'phosph'orothioate™Z."]!:
sym-Trinitrbbenzena _____ „._. _____________ -
,1 08^39-4
.2303-16-4
14242849
594-20-7
•563-^56^5
60-51^5
.
.62-50-0
106T50--3
126-:68-1
TABLES.—DEtEtioNSi=ROM.AppENDix,II
Common name
Allyl alcohol......„...„..„:._„„.;.....„.
Aluminum. ..........
Aniline: '. ..................Z.I
.Benzidine „. _._;....ZZ
Benzole, acid .._™._;.._.....Z
p-Benzoqiiinqne ...
Calcium .._ ;..„.:. Z'!
2-Chlbroethyl vinylfether. 2....
3-Chtoroprqpionitrile „
Dibenzota,f]Byrene „.. __.
Dibenzo'Ca.eJpyrene...... ......;
DibenzoEa,h;qpyrene....:..... .....'."
Dibenzofurans ;
-------
TABLE 2.—DELETIONS FROM APPENDIX
II—Continued
Common name
4,4I-MQlhyloneb!s(2-ch!oroanil!ne)...
N-Nitrosomotpholina •••••
Osmium.™.....—.———
Pantachlofoethatw
2-Pteoflne—.——•———
Potassium -
2-Pfopyn-1-ol; Propargyl ateonol
Rosorc'mo]
Sodium—..—»———.
2 3,7,8-TaUachtorodtbenzo-p-dtoxin —
Totraothyi dithtopyrophosphate; Sulfo-
topp •-•—•—••••• '
TWophenol; Bonzonelhlol - —
Tricbtoromethanethiol
Trls(2,3-dibronK>propyl) phosphate
CASRN
101-14-4
59-89-2
7440-04-2
76-01-7
109-06-8
7440-09-7
107-19-7
110-86-1
108-46-3
7440-23-5
1746-01-6
3689-24-5
75-70-7
126-72-7
b. Different Phases of Monitoring
The proposed rule required that once
one well triggered Phase H monitoring,
all wells monitoring the unit were to be
sampled and the ground water analyzed
for the appendix H constituents. In the
preamble to the proposed rule, the
Agency requested comment on whether
different wells at the same unit or
facility should be allowed to be in
different phases of monitoring. In-other
words, some wells would be in Phase I
monitoring while other wells would be
in Phase II monitoring. In the preamble
to the proposed rule the Agency stated
that this option could be appropriate in
situations where the unit was very large
and only a few monitoring wells had
triggered the next phase of monitoring,
however, once corrective action had
been triggered in one well, all of the
ground-water surrounding the particular
waste management unit would be
subject to corrective action provisions.
Several commenters supported the idea
of allowing different wells to be in
different phases of monitoring given the
complexity of the movement of leachate,
attenuation, dispersion, and ground
water movement.
The Agency agrees that, in situations
where larger MSWLFs are surrounded
by a great number of wells, and the
hydrogeology of the area is well known,
it may be practical and cost-effective to
sample and analyze a subset of wells for
both the complete list of appendix II
constituents and for the appendix II
constituents detected as a result of the
complete analysis. The Agency believes
that States with approved programs
should have the flexibility to make the
determination regarding the specific
wells to be included in assessment
monitoring. Therefore, § 258.5(b) and
§ 258.55{d)(2) of today's final rule
affords the Director of an approved
State the flexibility to specify an
appropriate subset of wells to be
sampled and analyzed during
assessment monitoring. This means that
some wells would advance to
assessment monitoring while all would
remain in detection monitoring.
However, during corrective action, the
owner or operator is required to comply
with the ground-water protection
standard at all points within the plume
of contamination that lie beyond the
ground-water monitoring well system,
(§ 258.58(e)). This will very likely
necessitate that all wells be
incorporated into the corrective action
program. In consort with the self-
implementing nature of today's rule,
owners and operators of MSWLFs in
unapproved States must sample and
analyze all wells during assessment
monitoring.
c. Appendix II Analysis
The proposed rule, § 258.55(c),
required the owner or operator to
sample and analyze ground-water for
the constituents listed in appendix II
within 90-days of triggering Phase H
monitoring or an alternate time period
approved by the State. If appendix II
constituents were not detected,
§ 258.55(d) required the State to
determine an appropriate frequency for
repeated sampling and analysis for
appendix II constituents during the
active life, closure, and post-closure
care of the unit. In setting the
appropriate frequency, the State was to
consider: (1) Lithology of the aquifer and
unsaturated zone; (2) hydraulic
conductivity of the aquifer and
unsaturated zone; (3) aquifer flow
velocities; (4] minimum distance of
travel; and (5) nature of any constituents
detected. The purpose of this provision
was to determine if any additional
constituents entered the ground water
over time. The Agency proposed to
allow States to set the frequency for
repeated full appendix II analyses
because the Agency believed that site-
specific conditions will have a
significant impact on the release of any
new constituents to ground water from a
MSWLF.
A number of commenters objected to
the requirement for repeated appendix II
analyses, stating that it would be
burdensome for MSWLF owners and
operators to repeatedly analyze for over
200 constituents. Other commenters
argued that the amount of data
generated by repeated sampling would
be burdensome for States to review.
Another commenter felt that EPA should
set a maximum limit on the number of
scans that could be required within a
given period of time while two
commenters suggested that the full
appendix II list be analyzed annually.
As stated in the preamble to the
proposed rule, the Agency believes that
periodic analyses for all appendix II -
parameters are essential to ensure
detection of ground-water _
contamination and for use in
determining whether the design of an
ongoing corrective action program must
be changed to accommodate the
treatment-or removal of additional
constituents. The Agency also believes-
it is necessary to include a specific
requirement for repeated, complete
appendix II analyses because of the
need to provide for a self-implementing
approach to today's final rule.
Therefore, the Agency is continuing to
require repeated appendix II analyses,
as modified below (see § 258.55(c)(2)).
In determining an appropriate
frequency for repeated full appendix II
analysis, the Agency considered the
similarities in the ground-water
monitoring programs for MSWLFs and
hazardous waste facilities, Because
owners and operators of hazardous
waste facilities are required to conduct
yearly analyses for a comprehensive list
of constituents (similar to appendix II)
during compliance monitoring (which is
similar to assessment monitoring) to
determine the presence of additional
constituents, the Agency also set an
annual monitoring frequency for
repeated full appendix H analyses tor
•MSWLF units conducting assessment
monitoring. This minimum frequency
will serve to ensure protection of human
health and the environment from •
ground-water contamination resulting
from MSWLFs. This requirement is
found in § 258.55(b) of today's final rule.
More frequent analysis is still required
for detected Constituents as discussed
below.
To address commenters' concerns
regarding the burdensome nature of this
requirement, the Agency is providing
approved States with the flexibility to
reduce the frequency of the repeated full
appendix H analyses (see § 258.55(b)).
An approved State is required to
consider the following factors in
assessing the appropriate monitoring
frequency for repeated full appendix II
analyses: (1) Lithology of the aquifer and
unsaturated zone; (2) hydraulic
conductivity of the aquifer and
unsaturated zone; (3) aquifer flow
velocities; (4) minimum distance
between upgradient edge of unit and
downgradient monitoring well screen
(minimum distance of travel); (5)
resource value of the aquifer and (6)
nature of any constituents detected.
These are the same factors identified for
-------
Stateieonsiderationiin the:prqposed rule
for determining an alternate tfrequency
fortthe repeated fulLappencUxiri
analysis. ;
Tlie^Eqppsed.rule.alsp required
pwners'.and qperatprstomdtifyand
submit.aireport to,the State,withintl4
days ofMentifying appendix II
constituents that haiinofbeenldentified
through previous monitoring. This -has
not changedto-taday'siinalrule.Section
258.55(d)(i) requires that within ,14 days
df detecting appendix II constituents
through the Initial or.subsequent
sampling events'in assessment
monitpring the pwner and pperatpr.\(l)
Place a notice. in:the qperating record
identifying the detected appendixB
constituents andpJ.noHfy the'State
Director that Ms ndtice:has been
placed. The Director df an approved
State.prqgram may modify this time
period.
d. Detection of iAppendixlIConstituents
imGmund iWater
If any appendix?!! constituents were
detected at statistically significant
Ievels'above-background,;|'258:55(i353f
the proposed rule-requiredthe-owneror
operatorto:'(i)'Ndtifyappendix!IIiEonatituentsim
order to:d;etennine>if a;«.tatis'tically
significant increaaeuav.er,backgtQund
had'pccuEced, Therefore, f§ 258;55{d)K) ,
.of today?s:feal;ride;reiuiEes jownersand
operators torCDtftintteiseihiannual
.,.
apprpyed State to specify -asmpnitorirrg
•• frequency,cpther;ihansemiannually,;for
those constituents ,thdtare.detectedrin
ground water as Ja,result of'a complete
appendix n;analysis. This'iflexibility is
discussedlater.in .thiSisectiPn. Sp-that
owners and-qperatois-mayidetermine
whether appendixrHiconstituents :have
exceeded the';ground:iwaterprd.te,ction
standard at.statisfically significant
levels, § 258.55(d)(3) oftodayjscfinalirule
also requires tthe owner drpperatpr.tp
establishtbackground concentrations
only for;appendix-II;constituents that
have been detecteddn ground-water.
The Agency .does not-mean to suggest,
however, that jowners-and-operators
should delay sampling pBhackground
wells during -the firstessessment
monitoring samph'ng event until
constitueritS'haveEbeendetected:in
dpwngradient'wellSi The owner and
operator shouldfsimultaneously collect
grpund-water-samples from'boththe
backgrpundrand dpwngradient wells
and send'both'sets of samplesfto:the
laboratory with instructions tpfirs't
analyze ;downgr;adierit wells ;for
appendix II constituentVandto delay
analysis df'the background ground-
water samples until'thB.resiilts of the
downgradierit ground^water:analysisrare
avaOable.:EBA 'encourages owners and
operdtorsto deterniine the
concentrations of a •constituerit'uithe
samples*flirpijgh thense pf-pne-ppint-in-
time"cpmparispnsrbetweBn:baakgrpund
and,downgraaientwells."rhis-approach
will'help-reduce the'components df
seasonal variation by providinglor
simultaneous comparisons between .
background well and downgradient well
monitoring jdata. For aaditiorral
pjscussionpf this approach, see the
preanible discusslon!in:53"FR39720
(October.ll/a.g88,) concerning the
determination dflbackgrounci
concentrations and their relafionsnip^o
statistical analysis df.grpund-water
mpnitprmgidata.andatKCRAIacih'ties."
Regardless pf the sampling delay, the
Agency wishes, to-emphasize that
§ 258.53ireguiresieach pwner.or qperatpr
to maintainisampUng-and analysis
program documentationfthatiincludes
procedures and techniques designed to -
ensuretaecurateiEepresentation of
ground^wa'ter quality. fAfter .the'detected
appendix;II:GonstituentS!Breiidentyied.
the owner' pn operator must analyze ithe
:Packgrpund;ground water aampiessfor
thpse constituertts and eStaiiHsh
backgrpund.TJieAgfencytbBiieves;;this
the proposed;rule required the ownen.pr
pperatpr tp conduGtiquartefly analyses
fpr thpse appendixill-constituents.
Section 258,S5(f)(3J ofithe?pr,qposed:iulp
did,hpwBvter,;ptovide!theS.tate*the
flexibility to-determinB:an'.approprlate
minimumanonitprmg,frequBncy!fpri.the
detected, appjendixin constituents ;durmg
the post-closure period,fBonsrdering'the
fpllpwinglist pf factprs:,(l),Lithplogy,of
the aquifer and unsaturated zone; '(2)
hyaraulic-conauctivity of ;fhe aquifer
-
travel (i.e.,'MSWLF unitedge-tp
downgFadient'wells);'anaf4j the nature
of the detected-constituents.
Intgeneral, mostrcommeriters stated
that quartefljr:mpriitoring;is-excessive
andnptnefided;'inall^iituationsand .
recommended'thatthe:frequ:ency'be
determined on:a'case-by-case;baBis:
After careful reviewxi'f'these^comments
the Agency agrees that theTeguirement
for quarterly*moriitoririg during'the
active life and-closure may;not'be
necessary?m spme xjircumstances. Fpr
example, the AgencyEbelieves that
quafterly a-ssessment!mpriitpring wo.uld.
not be cost-Le'ffectivefor owners'and
operators of .MSWtEslocated:in areas
with .low grouna-waterBow^lpcities.
The Agencyieh'ev:es.fhat,:basea,on:the
specifics d'f.thB'MSWEFlsite, States
shouldlhave ;ths flexibility to ideternune
an appropriate sfreguencylprirepeateii
sampliqg and .analysis jidt prily' .during
the post-closure j)erio4,!but :the actLv^
life (including jclosurei as well.:n3iis
flexibili^ also addresses«fhepr,acticaHli
capabilities,o'f,owriers.,and pperatorslby
allowing less .than.quarterly.ahalysisdn
situations where'it is.npt-absolutely ,
necessary. It shpuldletnpted.that
today's juledpesinotipredlude States
fromjeqnMng.more.frequehtjmqriitoring
if it is warranted. - '".,"
•Eherefore,^;258.5S(4«2} of tpday's
final rule provides ilexibilitySfpr the
Director of an, approyjedrStatetofspecify
a monitoring frequency,-p,ther:than
semiannually,,!fdr,those consfituertts 'that
are detectedamgrpundwater;asia:iesiu't
pf a complete appendix:!! analysis
during the;activ.etlife,'X3lpsure,;and post-
closure :care'pfiripd. JEhe 'Director df can
approved State is required to cpnsider ...
the same factorsfthat w.erejistediinthe
propQSedu^le:for:se;ttingtan{alterna-tive
frequencyidurlngthe'ppafeclosuTe ."-...
perioiL.ThesECsame.Iactarsareiisedho '
deterriJine anailternatiy,edrequenqyifpr, .
the full appendix.nmnalj&rais'tsee
'""'"""''
thataredeteEtediinc^un^Wjatexsasfa
•?f!^t;i^«^p:i^^ ;/./;;;
means
dperatprs.:.
Becausej'ofttheise^-impleniehting
appKoa^^jtpda^®alr^B.t&e ^•"."'.'
A^ei^.SfefflioTinngip^iy.^gSpKred *' ' ;*
monitoring frequency.f<
-------
S1084 Federal Register / Vol.
appendix II constituents during the
active life, closure and post-closure care
period. Owners and operators of
landfills located in States without
approved programs are required to
continue semiannual monitoring for
detected appendix II constituents
throughout the active life, closure, and
post-closure care period.
e. Return to Detection Monitoring
Under the proposed rule, if the owner
or operator determined that there had
not been a statistically significant
increase in any appendix II constituents
over background, after conducting :.
monitoring for a State approved period'
of time, § 258.55(e) of the proposed rule
allowed the unit to return to Phase I
monitoring. (A statistically significant
increase over background was the
trigger for requiring quarterly monitoring
for that constituent.) In determining an
appropriate period of tune for appendix
II monitoring before allowing return to
detection monitoring, the State was to
consider the following four factors: (1)
Lithology of the aquifer and unsaturated
zone; (2) hydraulic conductivity of the
aquifer and unsaturated zone; (3)
ground-water flow rates;'and (4)
minimum distance of travel.
In general, commenters supported the
proposed provision allowing an owner
or operator to return to the previous
phase of monitoring. Therefore, the
Agency has retained this concept in
§ 258.55(e), but has modified it by
adding a minimum time period during
which monitoring must be conducted
before allowing a unit to return to
detection monitoring. This will make it
consistent with the self-implementing
approach in today's rule.
In the preamble to the proposed rule
the Agency requested comments on the
appropriateness of a minimum time
period during which monitoring must be
conducted before allowing a unit to
revert to the previous phase of
monitoring. Two commenters suggested
specific monitoring periods; two
monitoring intervals and three
consecutive quarterly analyses. The
majority of commenters requested that
this minimum time period remain site-
specific.
The Agency agrees with the
commenter's suggestion of a minimum of
two monitoring intervals without
detection of appendix EL constituents is
' necessary before a facility may return to
detection monitoring. The Agency
believes that this requirement for two
consecutive sampling events will reduce
the probability of false-negatives [false
negatives occur when monitoring fails to
detect contamination or an. increase in a
concentration of a hazardous
constituent). In addition, by specifying a
specific time period, the Agency is
providing for the self-implementing
structure of today's rule. Therefore,
§ 258.55(e) of today's rule allows an
owner or operator to return to detection.
monitoring if the concentrations of all •
appendix II constituents are at or below
background, using the statistical
procedures in § 258.53(g) for two.
consecutive sampling events.
The Agency believes that this
approach balances protection of human
health and the environment with the
practicable capabilities of owners and
operators.. It considers the practicable
capability of the owner or operator by
not requiring repeated analysis of the
ground water for the complete list of
appendix II constituents, which may
yield the same negative results. It is
protective of human health and the
environment, as is required by
§ 258.53(c) of the rule, because the
owner or operator is still required to
continue to monitor the ground-water
and respond to statistically significant
changes in ground water quality. Once a
unit has returned to detection
monitoring, the owner or operator will
be required to establish an assessment
monitoring program if subsequent
monitoring indicates a statistically
significant increase of any appendix I
constituent over background levels. This
will, once again, require the owner or
operator to sample all monitoring wells,
or in approved States, an appropriate
subset of monitoring wells. The ground
water samples collected must then be
analyzed for all of the constituents listed
in appendix II.
For the purpose of clarification,
today's rule also includes a new
§ 258.55(f). This addition simply states
that if the concentration of any
appendix II constituents are above
background, but all concentrations are
below the ground-water protection
standard, the, owner or operator must
continue assessment monitoring.
f. Plume Characterization
Under the proposed rule, § 258.56(b),
the State could require an owner or
operator to conduct additional
monitoring in order to characterize the
nature and extent of the plume. This
provision implied that characterization
of the plume may require the installation
of several additional monitoring wells.
The Agency's rationale for this provision
was that the distribution of
contaminants must be delineated to
properly define the extent of the area to
be addressed .by the corrective action
program.
. One commenter remarked that EPA
should require a thorough definition of
the problem that may exist at a facility
prior to the initiation of corrective
measures. The commenter stated that if
the site-specific hydrogeologic and
ground-water quality characteristics are
not understood, attempts to remediate
the facility may fail. The Agency agrees
that a thorough understanding of the
contamination and the hydrogeology of
the site is essential to creating a
corrective action program. Therefore,
this concept has been retained in
today's final rule. •
Section 258.55(g)(l)(i) of today's final
rule requires the owner or operator tip
characterize the nature and extent of the
release, once the ground-water
protection standard has.been exceeded,
by installing additional wells, as
necessary. Circumstances that may
require additional monitoring include:
(1) Facilities that have not determined
the horizontal and vertical extent of the
contaminant plume; [2) locations with
heterogeneous or transient ground-water
flow regimes; and (3) mounding .,
associated with MSWLF units. In these
situations, an owner or operator may be
required to install additional wells.
However, because the requirements for
additional monitoring are site-specific,
the Agency is not able to set
requirements for cases where additional
monitoring is required nor the number of
additional wells that must be installed.
The Agency maintains that
characterization of the release is critical
in designing and implementing
corrective action programs if ground-
water remediation is necessary. The
purpose of these additional wells is to
delineate the contaminant plume
boundary and to eventually demonstrate
the effectiveness of corrective action in
meeting the ground-water protection
standard. Additional wells installed for
this purpose are not subject to the
assessment monitoring requirements for
Appendix II analyses.
In the subtitle C program for
hazardous waste facilities, the Regional
Administrator has the authority .to
require the installation of additional,
monitoring wells to characterize ground
water. Due to the decision to provide a
self-implementing approach to today's
final rule and in response to the
. comment that EPA should require a
thorough definition of any ground-water
contamination problem prior to
mandating corrective action, the Agency
has also added the requirement that the
owner or operator install at least one
additional well at the facility boundary
in the direction of contaminant
migration (§ 258.55(g)(l)[ii)). This well.
must be sampled semiannually, or an
alternative frequency determined by the
-------
Federal
Director of an approved State, and the
ground water samples analyzed for the
Appendix II constituents that have been
detected in the wells located at the unit
or alternative boundary. The Agency
added the specific requirement of a well
at the facility boundary so that the
owner or operator will be able to
determine when contaminants have
migrated past the facility boundary so
that affected persons who own or reside
on.land overlying the plume may be
notified. It should be noted that although
§ 258.55(d)(2) allows the Director of an
approved State to determine an
appropriate subset of wells to be ,
sampled and analyzed for the detected
Appendix II constituents, the Director of
an approved State must always include
this one additional well in the sampling
and analysis program. •
\ The Agency recognizes that it may be
difficult in certain circumstances to
characterize the nature and extent of the
plumes that have moved off-site. In
limited cases, the owner, or operator
mayihave difficulty obtaining
permission from adjacent land owners
to install additional wells on their
property. Nevertheless, the Agency
expects owners and operators to make
every effort to fully characterize the
nature and extent of the contamination.
Section 258.58{a)[3j of the proposed
, rule required the owner or operator to
notify all persons who own or reside on
land that directly overlies any part of -
the plume of contamination. This
notification was to be sent if any
Appendix II constituents were detected
at a statistically significant level above
the ground-water protection standard.
Several commenters addressed the
notification requirement that was
proposed. ;.
Two issues were raised by
commenters: The scope of any notice
and the timing of the notice.
Commenters suggested expanding the
scope of those receiving notice of
contamination beyond that required in
the proposed rule. These commenters
argued that this notice should not be
limited to land owners and local
residents who own or reside on land
that overlies a contaminated plume, but
also should include owners of mineral
rights and owners of permits to
applicable surface and ground water, as
well as to local officials such as fire,
health, school and transportation
officials.
The Agency agrees that it is important
for those persons whose uses of the
ground water may be affected, including
those who own or reside on land
overlying the plume and those whose
drinking water may be affected, to be
made aware of potential risks. However,
^
the Agency believes it would be difficult
for a MSWLF owner or operator to
identify and notify all persons whose
uses of ground water could be affected.
Therefore, the Agency is retaining the
proposed requirement that the owner or
operator notify individuals owning or .
residing on land overlying the plume of
contamination (see § 258.55(g)(l)(iii)}.
The Agency does, however, agree
with the commenter who suggested that
• the MSWLF owner or operator be
required to notify local authorities of
ground-water contamination resulting
from a release from the MSWLF. The
Agency has, therefore, broadened the
scope of .the proposed notification to
include appropriate local government
agencies or officials, as well as persons
owning or residing on land overlying the
plume of contamination. Section
258.55(g) of today's final rule requires
that notification be sent to local
government officials or agencies once it
has been determined that constituents
have been detected at statistically
significant levels above the ground-
water protection standard. The Agency
understands that in the case of MSWLFs
that are owned or operated by local
governments, the additional reporting
requirement in today's final rule will
.mean that one local government agency
or official may be notifying another
.agency or official of the same
municipality. The Agency still feels the
expanded notification requirement is
necessary to ensure that all appropriate
government officials and agencies are
notified.
It also was suggested by commenters
tha.t the timing and method of
notification be specified in more detail
'.than in the proposed rule. These
commenters felt that the notification
should be required immediately upon
detection of contamination, and that the
language and structure of the proposed
rule does not adequately indicate this.
At the request of the commenters, the
Agency evaluated the timing of the
required notice, and consequently
changed the timing of the notice from
the proposed rule. The Agency agrees
that it is important to quickly notify
individuals of potential ground-water
contamination. Today's final rule
requires the owner or operator to notify
owners or residents of land overlying
the plume of contamination if sampling
of the well located ;at the facility
boundary, [required by § 258.55(g)(l)[ii)J,
indicates that contaminants have
migrated off site. However, the earliest
, an owner or operator of a MSWLF that
is contaminating ground water can
notify residents of land overlying a
plume is when the nature and extent of
contamination has been identified.
Nevertheless, MSWLF owners and
operators can quickly notify local
government officials well before:the
plume is fully characterized. Therefore,
as discussed above, today's rule
requires the owner or operator to notify
appropriate local government officials
within 14 days of finding a statistically
significant increase over .the ground-
water protection standard. These
officials can then work with the owner
or operator in determining if certain
others should be notified prior to plume
characterization..Note that § 258.50(g)
provides flexibility for .the Director of an
approved State to alter this time for
notification. ...
In summary, if any appendix II
constituent is detected at a statistically
significantlevel above the ground-water
protection standard, § 258;55(g) requires
the owner or operator to: (1) Notify the
State and local government officials and
place a notice in the operating record ~
within 14 days or within another
' timeframe specified by the Director of
an approved State; (2) characterize the
nature and extent of the release, which
may require the installation of
additional monitoring wells; (3J install at
least one monitoring well at the facility
boundary in the direction of
contaminant migration; (4) notify all
persons who own or reside on land '
overlying the plume if contaminants
have migrated off-site. In addition, the
owner of operator is giyen the
opportunity through § 258.55(g} (2)-to .
.demonstrate that a source other than the '
MSWLF caused the contamination or
that the statistically significant increase
resulted from an errorin sampling,
analysis, or evaluation. This
demonstration must be certified by a
qualified ground-water scientist or
approved by the Direction of an
approved State and placed in the
facility's operating record.
g. Ground-Water Protection Standard
The proposed rule required States to
set ground-water protection standards
(GWPS), when.selecting a remedy, for
each appendix II constituent detected
above trigger levels. The GWPS was to
represent the constituent concentrations
that remedies were to achieve. The
proposed rule established the State's
primary consideration when setting the
GWPS to be to ensure protection of
human health and the .environment. The
proposed rule allowed the State to use
promulgated health-based standards,
such as Maximum Contaminant Levels
(MCLs), where they are available. In
cases where promulgated standards are
not available, the proposed rule allowed
the State .to set a GWPS for carcinogens
-------
51086
Federal Register / Vol. 56. No. 196 / We_dnesday^ctobeLjLJ991 / Rules
that would achieve a level of protection
within a risk range of 1X10-* to
1X1CT7. The proposed rule allowed the
State to take site-specific exposure
considerations into account when
establishing the GWPS and to take into
account the reliability of the remedy
when establishing the standard. If the
WSWLF owner or operator could'
demonstrate to the State that a detected
contaminant was already present in the
ground water, then the State was not to
set the GWPS above the background
level unless the State determined that
clean up below the background level
was necessary to protect human health
and the environment and the clean up
was in connection with an area-wide
remedial action under other authorities.
The majority of the commenters,
including several States, argued that the
States should not bear the responsibility
of establishing the level to which ground
water should be cleaned. The
commenters argued that the States do
not have the financial or technical
resources to undertake this task and
that the lack of a federal standard
would result in inconsistent standards
nationally. Many commenters
contended that federal standards should
be established to ease the rule's burden
on States and to allow States to devote
State resources to making decisions on
appropriate remedies. Some commenters
argued against allowing States to
establish GWPS on a site-by-site basis
due to concerns that the State would
take cost considerations (that would not
ensure protection of human health and
the environment) into account when
setting the standard. EPA also received
comments supporting and rejecting the
use of MCLs as the GWPS. One State
commented that all GWPS should be set
at background levels or below the MCL.
One commenter suggested that EPA
abandon the use of MCLs in setting the
GWPS because in the commenter's
opinion, they are overly conservative
and non-health related.
The Agency agrees that in many cases
States have limited resources available
to establish clean-up standards for a
large number of compounds. EPA has
partially addressed this concern by
deleting the requirement for establishing
trigger levels for all appendix II
constituents prior to the initiation of
ground-water monitoring (§ 258.52), and
instead, today's rule is requiring the
establishment of clean-up standards
(i.e., ground-water protection standard)
only for those compounds that have
been detected in assessment monitoring
(see preamble discussion on § 258.52).
In determining the approach for the
ground-water protection standards in
the final rule. EPA also considered the
decision to provide for self-
implementation. Under this approach,
owners and operators are able to
implement the final rule without
interaction with the State.
In order to respond to public
comments, as well as incorporate the
Agency's self-implementing approach,
today's final provisions regarding the
ground-water protection standard,
require the ground-water protection
standard to be either the MCL or
background, except in approved States
which may set alternative levels. While
the Agency prefers to use site-specific
health based standards and the use of
background concentrations may be
overly conservative in some cases, this
approach was necessary to incorporate
the self-implementing approach in
today's rule.
Specifically, today's final rule requires
the MSWLF owner or operator, rather
than the State, to set the GWPS at the t
MCL or background for all appendix II
constituents detected at a level above
background. GWPS must be set at the
MCL for all appendix II constituents for
which there is a promulgated level under
section 1412 of the Safe Drinking Water
Act. If there is no MCL promulgated for
a detected constituent, then the GWPS
must be set at background^ In cases
where the background level is higher
than the promulgated MCL for a
constituent, the.GvVPS is to be set at the
background level.
Today's rule also allows approved
States to establish an alternative GWPS,
for constituents without an MCL, that is
an appropriate health-based level based
upon specific criteria. Any alternative
GWPS must be set at a level derived in
a manner consistent,with Agency
guidelines for assessing the health risks
of environmental pollutants and must be
based on scientifically valid studies
conducted in accordance with the Toxic
Substances Control Act Good
Laboratory Practice Standards or other
equivalent standards. In the case of
setting an alternative GWPS for
carcinogens, the alternative level must
be associated with a risk level within
the risk range specified by today's final
rule, as discussed below. In the case
where an approved State decides to set
an alternative GWPS for a toxic
chemical that causes an effect other
than cancer or mutations, the alternative
level must be equal to a concentration to
which the human population could be
exposed on a daily basis without
appreciable risk of deleterious effects
during a lifetime.
In the preamble to the proposed rule,
EPA specifically requested comment-on
the appropriateness of the 1X10"* to
1X10~T risk range for carcinogens. Few
comments were received specifically
addressing the proposed risk range. -
Some commenters were concerned that
the range was not protective of human
health and the environment, while other
commenters agreed that this range was
appropriate and protective. One
commenter objected to the risk range
proposed by the Agency because it
implied that States could, not choose
more protective goals. In addition to
these specific comments, the Agency
received many comments that argued
that the proposed rule in general was
too stringent and burdensome.
As mentioned above, in today's final
rule the Agency is allowing approved
States to set an alternative ground-
water protection standard, for
carcinogens, within a risk range of
1X10~* to 1X10"8. The Agency
' recommends that States use 1X10"6 as
the point of departure for establishing ,
the GWPS. This starting point is
generally consistent with historical
Agency practices. However, a variety of
practical, site-specific factors (e.g., the
reliability of exposure data and the
weight of scientific evidence) may
require that the.standard deviate from
this risk level. These site-specific factors
will enter into the determination of
where within the risk range the GWPS
should be established. The risks to an
individual should not exceed 1X10"4.
Because this alternative GWPS can only
be set by approved States; and must be
consistent with EPA guidelines for
' assessing health risks, the Agency
believes that this approach is protective
. of human health and the environment.
Although today's final rule sets a risk
range of 1X1CT4 to 1X10~6, States are
not precluded from setting a more
stringent standard. There may be, other
site-specific exposure factors that may
indicate the need to establish a risk
level for a particular contaminant that is
more protective than 1X 1(T8. These
site-specific exposure factors may
include: Human exposure from other
pathways at the facility; population
sensitivities; potential impacts on
environmental receptors; and cross-
media impacts.
The criteria and site-specific
considerations for establishing
alternative GWPS by approved States
are essentially the same criteria and
considerations established in the
proposed rule, to be followed by all
States when establishing the GWPS.
However, in response to comment (as
mentioned above, commenters were
concerned States would consider cost
when setting the GWPS), today's final
-------
51887
rule does not allow the State to consider
the "reliability, effectiveness,
practicability, or other relevant factors .
of the remedy" when establishing an
alternative GWPS. The Agency
eliminated this consideration from the
final rule for two reasons.
First, the GWPS in today's final rule is
being used somewhat differently than in
the proposed rule, which established
both a trigger level (an environmental-
or health-based goal) and a ground-
water protection standard (the actual
clean-up standard set after
consideration of cost, technical
feasibility, eta). As discussed earlier in
this preamble, in response to comments -
EPA is eliminating "trigger levels" and i«
establishing a single standard, the
GWPS, in today's final rule. As used in
today's final rule, the GWPS is similar to
the proposed trigger level in that it is an
environmental- or health-based
standard that is used as the goal for
clean-up. Used in this, context, it is
inappropriate for remedy factors,
including cost, to be considered in
setting the GWPS.
•_ However, several opportunities for
considering the costs and technical
feasibility are provided in today's final
rule. For example, today's final rule
allows the owner or operator to evaluate
the costs of a remedy iii assessing the
corrective measures (§ 258.56(c) (3)) and
to evaluate their practicable capability,
including a consideration of the
technical and economic capability in
selecting'a remedy (§ 258.57(c) (4J).
In addition, as described in this '
appendix (under § 258.58(b)), if the
owner or operator determines that the
selected remedy cannot achieve the
GWPS (i.e., due to technical
infeasibility), the owner or operator can
explore alternative remedies and
receive a certification that no current
technology can achieve the GWPS. Hie
owner or operator, however, is always
responsible for controlling exposures ,
and the source of the contamination.
h. Remediation to Below Background
Levels '
As proposed, the GWPS would not be
set below background levels unless the
State determined that clean up below
background levels was necessary to
protect human health and the
environment and the clean up was
connected with an area-wide remedial
action under other authorities.
EPA received several comments from
parties that were concerned that the
Agency would, under some
circumstances, require MSWLF owners
.and operators to be responsible for
remediation below background levels
Commenters argued that landfill owners^
and operators should not be responsible
for contamination that may have
occurred as a result of other activities or'
from releases at other facilities. They
further remarked that requiring clean up
below background levels in effect places
•the cost of remediation on landfill -" •
owners and operators who are not
solely responsible for the contamination.
EPA also received comments
. suggesting that MSWLF owners and
operators should be required to be
responsible for remediation below
background. Some commenters argued
that landfill owners and operators were
legally obligated tp restore the aquifer to
its origirial condition and that-the GWPS
should be established to ensure this .'.
outcome. ,
As discussed in the preamble to the
proposed rule, the Agency believes that
it may not be reasonable to require the
owner or operator to reduce the
concentrations of hazardous
constituents to below background
levels. Therefore, today's final rule
retains this concept and requires the
owner or operator to clean up only to
the background concentrations
established for the MSWLF. The Agency
recognizes that there may be
circumstances where the ground water
is contaminated by other sources !
upgradient, resulting in elevated
background levels for the MSWLF
However, if the MSWLF is contributing
to the existing contamination/today's
final rule does not allow the owner or
operator to ignore his contributions
unless a determination is made by an
• approved State under § 258.57(e) that
remediation is not required. Moreover
today's final rule does not preclude
States from requiring an owner or .
operator to clean up contamination •"
below background levels where it is
warranted.
In today's final rule, EPA is requiring
corrective action for ground-water
releases. The legislative history
accompanying section 4010 provides
that a principal purpose of revising the
part 257 criteria is the protection of
ground and surface water and drinking
water supplies. To that end, Congress
directed the .Agency to study the
adequacy of the current solid waste
disposal criteria in protecting human
health and the environment from
ground-water contamination (section
4010(a)). Moreover, in directing EPA to
revise the existing criteria, Congress
provided that such criteria revisions
include ground-water monitoring as
necessary to detect contamination and
to allow for corrective action. -
In view of the existence of other
regulations providing for controls of '
other types of releases to other
environmental media, the Agency .
believes it is adequately protecting
human health and the environment by
limiting the scope of the corrective
action requirements in this rule to
ground water releases. The Agency also
intends to further study releases to soil -
and surface water by municipal solid
waste landfills and make future • .
revisions to the Criteria to require
corrective action for these m'edia. firthe
meantime, today's final rule includes
several provisions to protect surface.
waters. Specifically, today's final rule
requires fun on/run off controls and
requires that any discharge of pollutants
from a MSWLF into waters of the ; . •
United States must comply with
regulations developed under the Clean
Water Act. Furthermore, today's final V •
rule includes location standards with
respect to wetlands,and floodplains. ;
Congress also has provided authority
for controlling releases to other media
under a number of statutes. The Clean
Water Act (CWAJ and Clean Air Act '
(CAA) can be used to address releases;
into surface water and air. The Federal
Water Pollution Control Act.can be used
to address point and nonpoint releases -
to "waters of the United States" because
it grants authorities for addressing '
surface water releases. The CAA can be
used to address releases .of some
hazardous substances and particulates
to the air. While the CAA is'jipt directed
specifically at the waste management
industry, its authorities can be used to
address releases to the air from waste
management facilities. On May 30,1991,
EPA proposed New Source Performance
Standards and Emission Guidelines for
MSWLFs under the CAA to control
emissions of non-methane organic '
compounds that contribute to ambient
ozone problems and are a source of air
toxics. A portion of the CAA program,
the National Emission Standards for
Hazardous Air Pollutants (NESHAPs)
• program has specified maximum
emission levels for a number of
particularly hazardous constituents., , ,
Furthermore, the Federal CERCLA
program and other similar State-
authorized clean-up programs can be
used to address all media,,though these
programs are generally not preventative
or regulatory in nature, and thus these
authorities are typically used when
there are no responsible parties
available to clean up landfills that are
no longer in operation.
The following is a discussion of the
corrective action-program. This section
reviews the requirements to assess
corrective measures (§ 258.56); to select
a remedy (§ 258.57), and implement
corrective'action (§ 258.58). .;,
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51088 Federal Register / Vol. 56, No. ig6 / We^sd^
8. Section 258.56 Assessment of
Corrective Measures
Under the proposed rule, assessment
of corrective measures would be
required when any of the constituents
listed in appendix II have been detected
at statistically significant levels
exceeding .the ground water trigger
levels. These trigger levels were to be
health-based or environmental-based
levels established by the State. The
purpose of the assessment was to study
potential corrective measures. The
scope of the assessment was to be set
by the State and the proposed rule
specified several activities that the State
could include in the study. These
activities included: (1) Assessment of
effectiveness of the remedy; (2] an
evaluation of the performance,
reliability, ease of implementation and
impacts associated with the potential
remedy; (3) timing of the potential
remedy; (4) an estimation of costs; (5)
institutional requirements; and (6) an
evaluation of the public acceptability of
alternatives. The State could also
require the owner or operator to
evaluate one or more specific potential
remedies because the State could have
knowledge of successful technologies.
used at other landfills with similar
contamination problems. The proposed
rule required that the owner or operator
submit a report to the State on the
assessment so-that the State could
choose which remedy should be
implemented. The proposal also
included a provision allowing the State
to require the owner or operator to
initiate interim corrective measures
when necessary.
Comments on the concept of ground-
water trigger levels and the Phase I and
II structure of the ground-water
monitoring program were discussed
earlier in this appendix. Other general
comments on the proposed § 258.56
approach and the Agency's response are
summarized in the following discussion.
Several commenters identified a need
for the assessment of the risk posed to
human health and the environment by
the release prior to proceeding with the
corrective measures step. However, in
attempting to simplify and streamline
the corrective action program, the
Agency did not incorporate the
commenters' suggestions for a risk
identification program^ The Agency has
allowed for an evaluation of the,
potential threats presented by ground-
water contamination prior to requiring
corrective action. For example,
§ 258.55(j) allows an approved State to
considei exposure threats to sensitive
environmental receptors and other site-
specific exposure of potential exposure
to ground water when setting the
ground-water-protection standard;
which is the level the selected remedy
must achieve. Additionally, the owner or
operator is given the opportunity, by
§ 258.55[g) (2), to demonstrate that the
contamination is resulting from a source
other than the landfill. Furthermore,
several risk factors are evaluated during
the remedy selection phase, such as
magnitude of reduction of existing risks
and potential for exposure of humans
and environmental receptors.
Other commenters expressed support
for the consideration of cost as a
practical remedy assessment criteria
(§ 258.58(c)(4)). The Agency is finalizing
this criteria unmodified as § 258.56(c)(3).
The Agency believes that the
practicable capability of the owner or
operator, including the capability to
finance and manage a corrective action
program, is an appropriate consideration
in selection of a remedy, and cost,
therefore, is an appropriate
consideration for assessing corrective
measures.
Several commenters expressed
concern regarding the lack of deadlines,
to complete the required studies, arguing
that the lack of deadlines would provide
an opportunity for considerable delays
before corrective measures are
implemented. The Agency understands
the commenters' concerns, but as
previously mentioned, realizes that the
extent of the corrective measure study
must be commensurate with the
complexity of the site. Recognizing the
diversity of hydrogeologic
characteristics and environmental
problems, the Agency structured the
corrective action program to provide
flexibility in conducting the corrective
measure study, while still requiring
under § 258.56(a) that the assessment be
completed within a reasonable
timeframe. States are free to establish
timeframes they deem appropriate.
One commenter suggested that the
regulations should contain a bias to
suspend operations. The final rule does
not specifically identify conditions that
call for the suspension of operations [or
dictate any other specific corrective
measures). The Agency has attempted to
construct corrective action provisions
which are broad and flexible enough to
address the diversity of facilities,
regional and site-specific
considerations, technological
approaches to corrective action, and
remedial challenges without limiting,
remedial options or dictating
pragmatically impossible solutions.
Further, the Agency believes that
automatic suspension of operations are
generally unnecessary as a response to
most releases and could cause serious
disruptions in the solid waste
management industry due to a redaction
in disposal capacity, which is contrary
to Congressional directives. While it %vill
be appropriate under certain serious
release scenarios to take significant and
"rapid remedial actions, the Agency
believes that a bias for automatic
closure of the MSWLF is unwarranted in
most cases.
Another commenter was concerned
that, as proposed, § 258.56(c)(6) did not
expressly require public participation in
the evaluation of corrective measures or
the remedy selection process. This
provision required that the assessment
of potential remedies include an
evaluation of public acceptability. The
Agency agrees with the commenter that
the public should be actively involved in
the evaluation of corrective measures. ,
The public, particularly in the vicinity of
the facility, has a vested interest in the
protection and remediation of the local
environment. Therefore, § ,258.56(d] of
today's final rule requires the owner or
operator to discuss potential jemedies at
a public meeting prior to the selection of
a. remedy. This requirement is intended
to promote active and effective
communication between the interested
public, the owner or operator, and
where appropriate, the responsible State
regulatory agency.
As a result of the public comments
discussed above and in previous
. sections of today's notice, the proposed
approach to the assessment of
corrective measures has been modified.
Today's final rule requires the owner or
operator to initiate assessment of
corrective measures within 90 da.ys of
detecting any of the constituents listed
in appendix II at statistically significant
levels exceeding the ground-water :
protection standards (| 258.56(a}). The
purpose of the assessment is to study
potential corrective measures. Section
258.56[a), as finalized, differs from the
proposed approach in that it must be
initiated when the ground-water
protection standard is exceeded, rather
than when the proposed ground-water
trigger level is exceeded. The
replacement of the trigger levels with
the ground-water protection standards
has been discussed .earlier in this
appendix.
Section 258.56(c), as proposed, has
been replaced with proposed § 258.58(c)
(1). The effect of this change, reflecting
the self-implementing approach of
today's final rule, is that the scope of the
assessment is no longer set by the State.
The removal of required State
involvement has been discussed earlier
in today's notice. However, the Agency
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Vol. 56, No. 196 / Wednesday, October 9, 31991 / Rules and Regulations S1QS9
anticipates thai mast States will .
participate in Hie corrective action
process and will play a role in setting
the scope of the assessment.
As in the proposed rule, the final
version of § 258.56{o) requires Iheowner
or operator to assess the effectiveness of
potential remedies in meeting/the
objectives of § 258.57 by addressing at
least: (1) Performance, reliability, .ease
of implementation, and potential
impacts; (2) the time requirements; {3J
costs; and (4J institutional requirements.
In evaluating the performance,,
reliability, ease of implementation, and
potential impacts of each remedy, the
owner or operator should evaluate the
appropriateness of specific remedial
technologies to the problem being
addressed and the ability,of those
technologies to achieve -the GWPS.
Analysis af a remedy's reliability should
include an assessment of the
effectiveness of the remedy in
controlling the source of the release and
its long-term reliability. EPATjelieves
that long-tenn reliability of remedies is
essential in ensuring protection of
human health and the environment. ;
Construction and operation '
requirements also should be evaluated.
Finallyjthe owner or operator also
should assess whether She remedy will
cause intermedia transfer of *
contaminants. - '•'.
The-second criteria, timing of
potential remedies, should include an
evaluation of iGonstruction, start-up, and
completion time. Timingis particularly
important if contamination has migrated
off-site. Cost is ;the third listed factor to
be evaluated and may become
important in the jemedy:selection; '.
process when evaluating alternative
remedies that will achieve the same
level of protection. EPAdoesjiol
believe, however, that cost should be a
determinative factor in .assessing
alternative remedies when they do not
achieve the same level of protection.
Finally, institutional requirements, such
as local permit or public health
requirements, may effect
implementation of the remedies
evaluated and should,be .assessed by -
the owner or operator.
Section 258,56,,as finalized, does not
include proposed § 258.56(d] through ff).
These proposed regulations would have
provided States with the authority to
direct owners or .operators to include
certain remedies in the'Corrective
measures assessment, required owners
and operators to submit the corrective
measures assessment study and direct
the State to select a remedy, and.
allowed the State to require owners and
operators to perform interim corrective
actions. These proposals have been
deleted as part of the self-implementing
approach of the regulations finalized
today. States may., however, adopt these
types of requirements .as fjartiof State ,
regulatory programs.
9. Section 258.57 Selection of Remedy
As proposed, § 258.57 outlined the
general requirements for .selection of
remedies for MSWLEs..As structured, it
established four basic criteria
(§ 25B.57ib;)(l-4)) that all remedies Jiad
to meet. As proposed, these criteria
would have required that States .choose
remedies that: ;(1J Are protective of
human health/and the environment; .(2)
attain the ground-water protection
standard; (3] control the sourceCs) of
releases so as -to leduce *or eliminate, to
the maximum extent practicable, farther
releases of Appendix 31 constituents into
the environment thatanay posea threat
to human health or the environment; and
[A] comply with ithe.specified standards
for management ;of wastes. These
criteria reflect the major technical
components .of remedies: cleanup of
releases, source control, and
management of wastes that ars' •
generated by remedial activities.
The proposed .rule also specified
decision criteria {§ 258.57{c){l-533 that
would be considered by the State in
selecting the most appropriate remedy:
(1J Long and short term effectiveness,
and degree of certainty of success; (2)
effectiveness-of Temedy'in controlling
the source to reduce further releases; (3)
ease or difficulty of Implementation; (4)
practicable capability of owner or
opera tor, including technical and
economic capability; and >(5) community
concerns. Additionally, the proposed
rule outlined eight factors for setting
schedules for initiating and completing
remedies [§ 258.57(dj(l-8^. These
factors include: fl] Extent and nature of
contamination; (2j practical capabilities
of remedial technologies; [3J availability
of treatment or disposal capacity for
wastes to be managed as part of the
remedy; (4J desirability of'utilising
emerging technologies not yet widely
available; T[5] potential risks to human
health and the environment; (6) resource
value of the aquifer; f7) practicable
capability of the owner or .operator; and
(8) other relevantfactors.
Proposed S 258.57 also included
requirements for setting ;the ground-
water protection standard {§ 258.57(eJ),
which,.as discussedaarlier, hasbeen -'''.'
finalized as | 258.550] and ;Q). .Section
258.57(fj proposed three remediation
waiver options and § 25B.57(g) provided
States with the authority to require
remediation despite a i258.S7{f)
demonstration. Section 25a57(h)
proposed specific requirements :for
achieving compliance.
.Public comments were received on
various ;aspects .of the proposed remedy
selection requirements: The scope of
source 'contel.(§ 258.57(b)(3]); the
practicable capability remedy selection
factor [§ 258.57{c3(aj};fte proposed
approach to dmpiementation schedules
. (§258.57[d)3; the remediation waiver
proposed under § 258.57.{f); and the lack
of public re view or'comment provisions
on the selected corrective actionremedy.
and schedule. Each of Shese areas are
discussedferther below-, _
a. Source Control
The proposed rule, §,258.57(b|,
requu-ed the State to select aremedy
meetinglour .standards.'One of these
standards, | 258.57;(bJ{3Vrequired :that
remedies control the source of the
release so as to reduce or eliminate, to
the maximum extent jjf acticable, further
releases of appendix JI constituents into
the envTronment. One eommenter
expressed .concern that i258.57{b]{3)
does not hrnit the concept of source
cpnteol lo-exclude disintermeht and
redisposal, despite preamble language
identifying less disruptive types of
source icontroL The commenter believea
that such a limitation is necessary in
light of the Agency and.Congressional
goal of ayoidingdisniptioniof solid
waste management operations.
While the Agency .agrees with the
commenter that disintennent and
redisposal are not the primary forms of
source :control envisioned in this
subparagraph, there may be certain
extreme cases .where, due to the
miportance-of the &reateaed aquifer or .
fragih'ty of the-underlying geology {such
aa Karsf terranes), the most effective
and expedient form of source
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51090 Federal Register / Vol. 56, No. 196 / Wednesday, October 9. 1991 / Rules and Regulations
environment will be protected while the
remedy is being implemented arid once
it is completed. They also are a measure
of whether the ground-water protection
standard can ba met. The third factor,
implementability, is a measure of the
variables affecting start-up of the
remedy such as difficulty of
construction, availability of equipment,
and local permit requirements. The
fourth factor, practicable capability,
includes both the economic and
technical capability of the owner or
operator. The fifth factor, community
concerns, requires the owner or operator
to consider possible public reaction to
the potential remedy selected.
One of these factors, § 258.57(c)(4),
allowed the State to evaluate and
consider the practicable capability of
the owner or operator including a
consideration of the technical and
economic capability. Many comments
were received on the ability of States to
consider the practicable capability of
MSWLF owners and operators when
selecting a corrective action remedy.
Half of the commenters supported
consideration of practicable capability
when selecting a remedy while the
remainder of the commenters argued
that practicable capability was not
relevant in selecting a remedy. Instead
they argued that selection of a remedy
should be based solely on protection of
human health and the environment.
The Agency believes that the
practicable capabilities of the owner or
operator to implement the corrective
action program are vital to the overall
success of the program. If the owner or
operator cannot properly support and
administer all phases of the corrective
action program, the goals (protection of
human health and the environment) may
not be met, resulting in wasted
expenditures of resources and continued
environmental degradation.
Consideration of practicable capability
allows for the selection of the
achievable remedy or combination of
remedies that can meet the overall goal
of protection of human health and the
environment. Therefore, §-258.57(c)(4) of
today's final rule continues to allow for
the consideration of the practicable
capability of owners and operators
when selecting a remedy.
The Agency believes, however, that
the evaluation factors provided by
| 258.57(c), including practicable
capability, are secondary to the
standards of § 25B.57(b) that require
remedies to be protective of human
health and the environment, attain the
GWPS, control the source of the release,
and comply with the § 258.58{d)
standards for waste management. The
evaluation factors in § 258.57(c) are to
be used in evaluating one or more
remedies meeting the standards of
§ 258.58(b) as a means to select the
appropriate remedy. Therefore, the use
of these factors should not compromise
protection of human health and the
environment.
One coinmenter argued that Congress
did not intend that practicable
capability be considered in the manner
in which the Agency has incorporated it
in the proposed rule. The commenter
stated that the Congressional Record
only referred to practicable capability in
the context of how the criteria could be
phased in. As discussed earlier in the
preamble, the Agency believes that the
legislative history underlying the
subtitle D statutory amendments
supports the Agency's application of
"practicable capability." The Agency
believes that, as discussed above, the
statutory language of section 4010(c) and
its legislative history indicate that
congress intended that the technical and
economic capability of owners or
operators need to be considered to
avoid serious disruptions in the disposal
of solid waste. The Agency also believes
that the consideration of practicable
capability hi selecting the remedy is not
meant to reduce the level of protection
of human health and the environment.
This is so because despite any
secondary consideration given to
practicable capability in selecting a
remedy under § 258.57(c)(4), the remedy
must always be protective of human
health and the environment under •
§ 258.57(b)(l). Section 258.57(c) of
today's final rule requires the owner or
• operator, rather than the State, to
consider the five factors listed in the
proposal when selecting a remedy. This
change reflects the self-implementing
approach of today's final rule. Of course,
EPA expects many States, including all
. approved States, to be involved in the -
review and selection of remedies.
c. Schedule for Implementation
The proposed rule required the owner
or operator to assess corrective
measures and the State to select a
remedy when appendix II constituents
had been detected at a statistically
significant level exceeding the trigger
level (§§ 258.56(a) and 258.57(a)). As
part of the remedy selection process, the
State had to specify a schedule for
initiating and completing remedial
activities (§ 258,57(d)3. The owner or
operator would then implement the
selected remedy when any appendix II
constituents were detected at
statistically significant levels above the
ground-water protection standard
(§ 258.58(a)).
Because the trigger level has been
eliminated by today's final rule,
§ 258.56(a) and 258.57(a) require the
owner or operator to assess corrective
measures and select a remedy when
appendix II constituents are detected at
a statistically significant level above the
ground-water protection standard. As
part of the remedy selection process, the
owner or operator is required by
§ 258.57(d) to specify a schedule for
initiating and completing remedial
activities. When setting this schedule,
the owner or operator is required to
consider eight factors. These factors are
unchanged from the proposal. Today's
final rule requires the owner or operator
to set the schedule because of the need
to provide for a self-implementing
approach to today's final rule. However,
EPA expects that most States, under
State law, will establish schedules with
the owner or operator for initiating and
completing remedial activities. .
One commenter stated that EPA
should establish a time frame to preveiat
long administrative delays in .
implementing corrective action .
remedies. However, EPA is not setting a
minimum'time period in which remedial
activities must be initiated because of,
the widely varying circumstances at
facilities that require corrective action.
EPA is requiring instead that activities
begin within a reasonable period of
time. The Agency expects that many
different specific factors will influence
the timing of remedies; For example,
there may be a delay in acquiring the
level of technical expertise required to
implement a particular remedial
technology. However, today's rule does
require an owner or operator to take
interim measures necessary to ensure
the protection of human health and the
environment prior to implementing the
selected remedy (§ 258.58(a)(3)). If the
State is an approved State, the Director
will be able to establish alternative
procedures.
d. Remediation Waiver
In the proposed rule, under § 258.57(1],
EPA identified three situations in which
the State may decide not to require
cleanup of hazardous constituents
released to ground water from a
MSWLF. These situations were limited
to cases where: (1) The ground water is
contaminated by multiple sources and
cleanup of the MSWLF release would
provide no significant reduction of risk;
(2) the contaminated ground water is not
a current or potential source of drinking
water and is not hydraulically
connected with waters to which
hazardous constituents are migrating or
are likely to migrate in a concentration
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that would exceed the ground-water
protection standards in today's rule; or
(3) remediation is not technically
feasible or results in cross media
impacts. In any case, however, the State
could impose source control '..
requirements (e.g., covers and/or flow
control measures) to minimize or
eliminate further releases [see proposed
§ 258.57(g)]. The Agency did not attempt
to define "significant reduction" sin risk
and requested comment on whether a
specific definition was necessary.
A number of comments were received
on these waivers. Some commenters
strongly supported the inclusion ef such
waivers as means of ensuring that
valuable resources are applied to
corrective action measures in an
appropriate and effective manner. Other
commenters strongly opposed the
inclusion of waivers and a number -of
commenters objected to § 258.57(f){l)
due to fhe lack of a definition of
"significant reduction of risk".
After considering all the comments
supporting and rejecting the waivers
provided by proposed § 258.57(f), the
Agency decided to allow approved
States to waive the clean up
requirements where the ground water is
already contaminated by multiple,
sources and clean up of the MSWIF
release would, in the approved State's
opinion., provide no significantDeduction
of risk (§ 258.5716}). The Agency
understands and .anticipates that
approved States WuThave difficulties an
defining "significant reduction of risk.11
For this reason, EPA believes .that
approved States should take a
conservative approach when evaluating •
the relevance of .such a waiver. The
Agency does, however, anticipate that
situations will-arise where an approved
State will determine.that remediation of
a release from a MSWLF cannot "be
justified based upon the presence of
other sources of contamination or "based
on other extenuating circumstances that
will result in no significant decrease hi
the level of risk from the contamination.
Other commenters were concerned
that the proposed"! 258.57(f)(2)(i-iii}
waivers did not account for issues .that
would limit the ability of a State to
predict changes in populations and
future improvement in treatment
technologies, and to determine hydraulic
connections between aquifers. They
requested that the Agency reevaluate
the ability of States to issue remediation
waivers under proposed"! 258.57(f). The
Agency considered the cpmmenters'
concern's but is continuing to allow
approved States to determine that
remediation of a release la -not required
(now I258.57(e)). .
EPA realizes that it is difficult to
predict changes in populations (which
determine whether^round water is
reasonably expected to a source of
drinking water) and future
improvements hi treatment technologies,
or .to determine hydraulic connection.
However, the Agency believes, as
discussed in the proposal, that certain
circumstances may riot merit
remediation and the States should have
the latitudelo grant waivers in such
cases and avoid unnecessary and
unproductive expenditures, EPA
believes that such waivers are to .be
granted only after-an owner or operator.
meets the heavy burden of establishing
that one or more or the criteria in
§ 258.57(e) have been satisfied. States
are not precluded from requiring owners
and operators to undertake other
measures (e.g., source control) once-the
determination has been made that
remediation is not required {§ 258.57(f)).
e. Public Participation
One commenter believes that the
corrective action regulations should
provide an opportunity for public review
or comment on the-selected remedy and
proposed schedule. This commenter
argued that allowing public input during
the assessment study is insufficient and
that additional opportunities for public
involvement should be provided.
The Agency agrees that public
participation is important in the
selection of corrective action remedies
because-of the high potential for
exposure to the population. As •
discussed earlier in the preamble, public
participation requirements for approved
States will be dealt with in a separate
State program rulemaking. In addition,
with respect to today's final rule,
owners and operators of MSWLFs are
required to discuss potential remedies at
a public meeting prior to selection of the
remedy {§ 258.56(d)).
10. Section 258.58 implementation of
the Corrective Action Program
The proposed rule required-the
corrective action program to be
implemented when any Appendix II
constituents were detected at •
statistically significant levels above the
ground-water protection standard
(proposed §,258.58(a)). To implement the
corrective action program, the owner or
operator had to comply with several
requirements. First, the owner or
operator had to establish,and implement
a corrective-action ground-water
monitoring program, that, would
demonstrate .both the effectiveness of
the remedy and compliance with the
GWPS, Second, the'owner or operator
had to implement the remedy selected
51081.
by the State under ;J 258.57. Third, the
owner or operator had to notify all
persons who own or reside on the land
that overlies any part ;of the plume of
contamination. Finally, .at any time the
State determined that actions were
necessary to protect .human health :or
the environment, it could require the
owner^or operator to conduct interim
measures. The remedy would "be
considered complete-when the GWPS
had been achieved and all other actions
requiredln the remedy had been
completed (e.g., source control
measures). The owner or ;operaior would
• be released from die-corrective action'
requirements after the State received a
certification from an independent
engineer, geologist, or other qualified
person, and after the State determined
that the remedy was complete. If the
selected remedial technology was not
capable of attaining the cleanup
standard after reasonable efforts'had
been made by the owner or operator,, the
proposal allowed the State to require the
owner or operator to-evaluate and
implement-alternative technologies.
The Agency received several
comments addressing the :
implementation of the corrective action
program. One commenter indicated that '
the proposed rule, as implemented,
would be inconsistent-with CERCLA's
cleanup and liability pro visions. The
commenter stated that ;fhe proposed rule
does not provide f or 1he participation in
the investigation and cleanup by parties
that .might be liable under CERCLA. The
commenter also indicated that the
proposed rule does notallow owners or
operators to challenge the assumption
that contamination is from the landfill
and not from the surrounding area. The
commenter stated that the proposed rule
effectively excludes MSWLEs from the
CERCLA liability scheme and replaces it
with present owner liability. Finally, the
commenter asserted that under the
. proposed jule MSWLFs may never "be
listed on the Natipnall'riority List{NPL).
The Agency disagrees'that the
proposed rule is inconsistent with
CERCLA. Today's final rule under
RCRA focuses on managing solid waste
correctly during the operation of the
facility rather thanielying on CERCLA
to :clean up these sites in the future. The
corrective action required under this
rule is not CERCLA remedial action, and
therefore-CERGLA standards do not
apply. The Agency is well aware that
where a cleanup proceeds under
CERCLA authority, potentially ,
responsible parties (PRPs) normally
participate in the remedial process.
Under .today's final rule, however,
corrective action is required under
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51092 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 /
RCRA authority, and therefore,
potentially responsible parties under
CERCLA are not involved in
Implementing corrective action.
"The Agency also disagrees with the
commenter's assertion that the proposed
rule does not allow an owner or
operator to demonstrate that
contamination results from a source
other than the landfill facility. Under
§ 258.54(d)(3) of the proposed rule and
§ 258.54(c}(3) of today's final rule, the
owner or operator is allowed to make
such a demonstration.
Similarly, the Agency does not agree
that today's final rule exempts
municipal solid waste landfills from the
CERCLA liability scheme. These
landfills are subject to CERCLA
requirements to the same extent as any
other facility or site. The fact that
correclive action may be required under
RCRA does not preclude potentially
responsible parties from being liable
under CERCLA. If a MSWLF warrants a
CERCLA response action, all those
parties liable under CERCLA section
107(a) will be subject to that action. It is
the Agency's intent, however, that the
corrective action required under today's
rule will result in a facility not being
subject to CERCLA liability because a
release is prevented or remediated.
RCRA provides adequate authority to
require corrective action for releases
and the Agency believes that these
corrective action requirements provide
MSWLFs with the necessary incentives
to manage the waste correctly.
Consistent with this, under today's rule,
MSWLFs are not precluded from being
listed on the NPL if they warrant being
so classified.
Other commenters had concerns with
the costs of corrective action. They
indicated that it is important that each
landfill operator be able to demonstrate
the ability, both fiscally and technically,
lo fund and implement all foreseeable
corrective measures. It was suggested
that some financial security should be
required to ensure this capability.
Commenters expressed the view that the
proposed rule does not provide for any
consideration of costs in the selection of
the appropriate corrective action, and
that it is not reasonable to ignore the
issue of economic feasibility.
The Agency agrees that it is important
thai owners or operators be able to
demonstrate the financial ability to"
implement corrective action. This is why
the proposed rule includes a financial
assurance requirement in § 258.32. This
assurance requires that landfill owners
or operators who must undertake a
corrective action program must establish
financial assurance based on a recent
estimate of the cost of the corrective
action program. EPA has incorporated
this financial assurance provision in
today's final rule at § 258.73.
The Agency does not agree with
commenters that cost consideration is
not provided for in the selection of
appropriate corrective action. As
'discussed earlier in the preamble,
provisions in today's final rule also
address the technical capability of the
owner or operator to implement a
corrective action program and provide
for the consideration of costs in the
selection of a remedy.
Public comments also were received
on the requirements for interim
measures, the period of compliance, and
the alternative approach discussed in
the preamble to the proposed rule. Each
of these areas is discussed below.
a. Interim Measures
Section 258.58(a)(4) of the proposed
rule required the owner or operator to
take any interim measures deemed
necessary by the State to ensure the
protection of human health and the
environment. In determining whether
interim measures are necessary, the
State was to consider seven factors
including: (1} The time required to
develop and implement the final
remedy; (2) actual or potential exposure
of nearby populations or environmental
receptors to hazardous constituents; (3)
actual or potential contamination of
drinking water supplies or sensitive
ecosystems; (4) further degradation of
the ground water that may occur if
remedial action is not initiated
expeditiously; (5) weather conditions
that may cause hazardous constituents
to migrate or be released; (6) risks of fire
or explosion, or potential for exposure to
hazardous constituents as a result of an
accident or failure of a container or
handling system; and (7) other situations
that may pose threats to human health
and the environment.
One commenter stated that proposed
§ 258.58(a)(4) is too Vague. The
commenter stated that forcing a facility
that is already performing corrective
action to conduct interim measures may
be a waste of time and money. The
commenter also suggested that such
interim measures should only be
required where necessary to prevent an
immediate threat or endangerment to
human health or the environment.
The Agency disagrees that the
provision authorizing interim measures
is vague. The discussion in the proposed
rule adequately addresses the purpose
and nature of these interim measures.
As,noted in that discussion, such interim
measures serve to mitigate actual"
threats and prevent potential threats
from being realized while a long term,
comprehensive response is being
developed. Sections 258.58(a) (3) and (4)
require any interim actions to be
consistent, to the greatest extent
practicable, with the objectives and
performance of the remedy selected, and
that several factors are specified that
must be considered by the owner or
operator in taking these measures.
These both guide the owner or operator
in formulating interim measures.
Interim measures may encompass a
broad range of actions. For example, an
owner or operator responsible for
contamination of a drinking water well
may make available an alternative
supply of drinking water to protect
human health. This replacement action
could be temporary or permanent. Other
interim measures can include well
relocation and treating contaminated
ground water at the point of use. For
further guidance, the Agency refers
readers to the guidance document
entitled RCRA § 3008(h) Corrective
Action Interim Measures (June ,10,1987;
OSWER Directive 9902.4). .
Although the Agency has, changed the
rule language regarding interim
measures, this change is. a Jesuit of the
decision to provide for a self- .
implementing approach to today's final
rule. Today's final rule requires owners
and operators to undertake these. ;
measures, in lieu of States, but does not
alter the standard for when such
measures are required. Under today's
final rule, interim measures are required
when necessary to protect human health
and the environment.
b. Alternative Remedies .
In the preamble to the proposed rule,
the Agency explained that
circumstances may arise which could
render the chosen remedy: technically
impracticable. Proposed § 258.58(b)
provided factors that the State should
consider in making this determination.
These factors included: (1) The owner or
operator's efforts to achieve compliance
with the requirements; and (2] whether
other currently available or new and
innovative methods or techniques could
practicably achieve compliance with the
requirements for the remedy. The
proposed rule allowed the State to
require the owner or operator to
implement alternate measures to control
exposure of humans or the environment
(proposed § 258.58(c)). States also were
allowed to require the owner or operator
to implement alternate measures for
control of the sources of contamination,
or for the removal or decontamination of
equipment, units, devices, or structures .
required to implement the remedy. The
Agency stated in the preamble to the
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—fg^^ and Regulations
51093
proposed rule that the ground-water
protection standard would not be
changed.
The Agency did not receive comments
opposing this approach so it has been
• retained in today's final rule.
Modifications have been made,
however, to allow for self-
implementation of the regulations.
Specifically, § 258.58(b) of today's final,
rule-allows an owner or operator to
determine that compliance with
requirements of § 258.57(b) are not being
achieved through the selected remedy.
This situation may arise, for example,
when the unexpected occurrence of an
area of unstable soils may make it
impossible to construct the selected
remedy. If such a situation arises, the
owner or operator must implement other
methods or techniques that could
practicably achieve compliance with the
requirements for the remedy.
If compliance with the remedy
requirements of § 258.57(b) cannot be
achieved by currently available
methods, the owner or operator is
required to implement other techniques
or methods that can achieve compliance
with the requirements. If currently
available techniques cannot practically
achieve compliance, § 258.58(c) requires
the owner or operator to:,(l) Obtain the
certification of a qualified ground-water
scientist or the Approval of the Director
of an approved State; (2) implement
i alternate measures to control exposure
of humans or the environment to
residual contamination, as necessary to
protect human health and the . -
environment; and (3) implement
alternate measures for control of the
' sources of contamination, or for removal
.or decontamination of equipment, units,
: devices, or structures that are
• technically practicable and consistent
; with the overall objective of the remedy.
: Prior to implementing alternate
; measures, the owner or operator is
- required to notify the State and place a
j. report in the facility's operating record
I justifying the alternative measure.'
^ c. Period of Compliance
"; The Agency proposed that the State
:' specify in the remedy the requirements
for achieving compliance with the
ground-water protection standard
(§ 258.57(h)). These requirements
included: (1) The ground-water
protection standard be achieved at all
points within the plume of
contamination that lie beyond the
ground-water monitoring system; and (2)
the time necessary for the owner or
operator to demonstrate that
concentrations of hazardous
constituents have not exceeded the
ground-water protection standard. In
setting an appropriate length of time, the
State was to consider: (1) The extent
and concentration of releases; (2)
behavior characteristics of the;
hazardous constituents in the ground
water; (3) accuracy of monitoring or
modeling techniques; and (4)
characteristics of the ground water.
In the preamble to the proposed rule,
the Agency requested comment on the-
appropriateness of a minimum period of
compliance as is required by the subtitle
C program for hazardous waste facilities
(i.e., three years]. Only one commenter
supported setting a minimum three year
period of compliance as is required
under the Subtitle C program; The
remaining commenters requested that
the period of compliance remain site-
specific.
Because of the need to provide for a
self-implementing approach to today's
final rule, the Agency believes it is
necessary to set a minimum period of
compliance. The Agency has chosen to
set the minimum compliance period at
three years. However, the Agency has
decided to continue to allow approved
States to establish an alternative
compliance period based upon site-
specific conditions. When establishing
an alternative compliance period, an
approved State must consider the
following site-specific conditions under
§ 258.58(e): (1) The extent and the
concentration of the release; (2) the
behavior characteristics of the
hazardous constituents in the ground
water; (3) the accuracy of monitoring or
modeling techniques, including any
seasonal, meteorological, or other
environmental variabilities that may
affect the accuracy; and (4) the
characteristics of the ground water.
In summary, § 258.58[e) of today's
final rule requires that the ground-water
protection standard be achieved for a
period of three consecutive years at all
points within the plume of
contamination that lie beyond the
ground-water monitoring system unless
an alternative period of time is
established by an approved State.
Approved States may set an alternative
period of compliance after taking site-
specific conditions into, consideration. In
demonstrating compliance with the
ground-water protection standard, the
owner or operator is required to use the
statistical procedures promulgated
today in § 258.53.
d.. Alternative Approach
In the proposal, the Agency outlined
and requested comment on an '
alternative approach to the proposed
corrective action program which would
have established fewer specific federal
requirements for- cleanup. It involved the
following steps: (1) Any concentration of
hazardous constituents in the ground
water above trigger levels would be
reported to the State; (2) the nature and
extent of the contamination would be
investigated; and (3) all necessary
actions to abate any immediate risks to
human health arid the environment
would be taken. After the owner or
.operator submitted the results of the
investigation, the State would assess, on
a site-specific basis, the risks to human
health and the environment posed by
the ground-water contamination. Based
on this assessment, the State would set
site-specific requirements for clean up of
the ground water (including clean up
levels). Next, the owner or operator , .
would be required to submit a plan for
attaining the cleanup requirements to
the State for approval. The owner or
operator would then implement the
, approved plan. Modification to the plan
would be allowed based on site-specific
considerations.
Two commenters indicated that they
support the alternative approach
discussed above. One commenter •
asserted that this alternative approach
would be equally protective and
somewhat more cost-effective than the
proposed approach. After consideration
of this alternative approach, the Agency
has rejected it for two reasons. First,
EPA believes the proposed approach is
more protective of human health and the
environment than the alternative
approach because it more clearly
defines the clean up levels and factors
to be considered hi evaluating and
selecting appropriate remedies. Second,
because of the site-specific risk
evaluations required by the alternative
approach, the Agency believes that
States could spend a substantial amount
of time reviewing plans and risk
assessments and setting site-specific
clean up goals, which would result in
significant expenditures of resources.
Therefore, the Agency believes that
today's final rule, .which is self-
implementing, is more cost-effective
than the alternative approach outlined
above. As a result, today's final rule
does not incorporate the alternative
approach. .
Appendix G—Supplemental Information
for Subpart F—Closure and Post-Closure
Care
Because of the potential threats to
human health and the environment
posed by municipal solid waste landfills
that are not adequately closed and
maintained after closure; the Agency
specified minimum standards' for closure
and post-closure care in the proposed
criteria. The proposed criteria included
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51094 Federal Register / Vol. 56, No. 196 / Wednesday, October 9^1991
and •Regulations
a closure performance standard, a cover
design requirement, 'theTeqairement to
prepare closure and post-closure plans,
and closure andpost-closure care
certification requirements. 'Following
closure of each unit, the proposed
criteria would require .owners or
operators to conduct post-closure care
comprised of two phases. All owners 'or
operators were subject to a minimum :of
30 years of post-closure care (Phase I);
following the 30-year Phase I program,
owners or operators were required to
continue those post-closure care
activities deemed necessary by the
State. The duration of this second period
was also to!be.determinedly the State.
Under the proposal, the States would be
given the authority to specify certain
closure and post-
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-^-^J?',.^;.',!.??,/. Zed.nesday' October 9. 1991 / Rules and Regulations 51095
risks than others. Several commenters
noted that the risk-based approach
would be very expensive for owners or
operators because of the data they
would need to generate to demonstrate
the adequacy of the final cover, and
suggested specifying a minimum design
standard to minimize the costs. Other ,
commenters were concerned that the
proposed final cover requirements could
imply the need to install a Subtitle C
type cover and argued that a final cover
of five feet of clay would be too costly
because of the added expense of
trucking in additional clay. These
commenters suggested that a coyer with
a minimum of two feet of clay would be
adequate to protect human health and
the environment. Commenters also
argued that the cost of complying with
the proposed risk-based standard would
force unscheduled closure, of MSWLFs.
,. Many commenters also opposed the
final cover requirements specified for
existing MSWLF units. The.se
commenters noted that the final cover
standard proposed in § 258.40 for
existing units specified that the final
cover must prevent-the infiltration of
liquid, which is a more stringent •- .
standard than the language in the
proposed performance standard in
§ 258.30, which would require that
closure minimize the formation, and
release of leachate. These commenters
strongly recommended that the Agency
require that the closure standards
minimize the formation andrelekse of
leachate, contending that a prevention
standard is overly stringent..
The Agency received a variety of
suggestions for final cover designs. A
few commenters recommended l£at the
priteria should define a minimum
infiltration rate for the final cover
system, suggesting, for exafipte, a final .
coyer permeability which is equal to or
less than the bottom liner specification
in order to prevent a "bathtub effect."
These commenters also suggested that,
in cases where the existing unit does not
have a liner, the final 'coveMj&tem
should have either a minimum standard
of six inches of clay with,a permeability
level of 1X10-8 cm/sec, or a comparable
puncture resistant flexible membrane
liner having the same standards as those
established for bottom liner systems.
Other commenters suggest!!* variety
of other cover designs including the
design described in the subtitle C
guidance manual entitled "Technical.
Guidance Document: Final Covers on
Hazardous Waste Landfills gpd$aifac£
Impoundments," July 1989, EPA(530-
SW-89-047. The Final cover desij
recommended for subtitle C facilities
others argued that a two foot final co ver
would be protective for MSWLFs. In
addition, over 40 States require at leas'
two feet of final cover material for
MSWLFs and many specifically require
infiltration and erosion layers. Finally,
while the final cover permeability
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51036
Federal Register / Vol. 56, .No. 196 ,/ Wednesday. .October 9, 1991 / Rules ,and .Regulations
standards vary by State, some States
require a permeability of less than
1X10~S cm/sec.
After review of commerrters
suggestions .and current State
approaches,, EPA concluded that todays
minimum infiltration and erosion layer
requirements will be protective of
human health and the environment,
while at the same -time lie within the
practicable capability of owners and
operators of MSWLFs. EPA found that
more stringent final covers, such as
those recommended for subtle C
facilities, would be substantially:more
costly .than, today's final requirements.
These higher costs would likely
contribute significantly to making
.today's jnde bey ondfhe practicable
capability of MSWLF owners .or
operators (see Regulatory Impact
Analysis results infection 1II.B of
today's preamble).
Finally, § 258.60(b) of today's rule
allows the Director of an approved State
to approve alternative final covers that
include infiltration and erosion layers
that achieve equivalent performance as
the minimum designs specified in
§ 258.60{a). The Agency included this
provision to provide an opportunity to
incorporate technology improvements
and to address site-specific conditions.
Because the Agency believes these
alternative-designs must be reviewed
and approved by an approved State, .the
opportunity for alternative designs will
not be available for owners and
operators of MSWLFs instates without
EPA-approvedpermittlng programs.
a Sections 258.60(c)r.and 258.61(o)
Closure and fast-Closure Care flans
a. General Contents of Plans
Sections 258.30lb) and 258.31(c) of,the
proposal would require all owners and
operators of municipal solid waste
landfills to prepare written closure and
post-closure plans describing how the
facility would be closed in .accordance
with the closure performance standard,
and maintainedafterclosure. The
•Director of an approved State may
specify alternative recordkeeping
locations .and alternative schedules for
recordkeeping and notification
requirements for these plans or any
anlytical data from closure andpost-
closure. The closure and post-closure
plans would describe the activities
required to meet the closure
performance standard -and the post-
closure care requirements, and would
provide a basis for establishing site-
specific coat estimates used to .
determine the amount of financial
assurance required.
The Agency specifiedin
§258.301b)[lJ-!;5) the minimum
information mat must be includedan a
closure plan. This information included:
a description of the .methods,,
procedures., and processes necessary to
close the landfill in accordance with the
closure performance standard, including
decontamination procedures; an .
estimate of the maximum .extent of
operation that would be open during the
active life of the landfill; an estimate,of
the maximum inventory of wastes .ever
on-site over the landfill's life; a
description of .the final cover in
accordance with the .design criteria
proposed,in S ,258.40; .and a schedule for
completing ,all sof.these activities.
As proposed, the post-closure plan
would ,have to describe the monitoring
and maintenance activities to he,
conducted .during the two-phase post-
closure care period, as well as the
frequency with which these activities
would ,be performed. Maintenance
activities consist mainly-of iroutine
maintenance suchasanowing,
fertilization, and erosion and rodent
control. EPA also proposed that .the
post-closure plan inclu.de the name,
address, land telephone .number .of the
person cor office to contact about the
landfill during both phases .of post-
closure care, and a description .of the
planned uses of the property-after
closure.
Comments 021 the types iof information
and level of detail to the plans were
varied. Some commenters argued for
more specificity in the closure plan
requirements, including submission -of
detailed engineering plans. Gommenters
also suggested that plans he prepared by
a professional engineer, and that a
certified qperator be responsible for the
site. In contrast, other commenters
contended that the proposed rule's
requirements were too detailed and
extensive and that,EPA should allow for
more flexibility ta the content of the
plans in .order to account Jorisite-
specific considerations. Others
suggested 'that decisions on the level of
detail in the plans be left to the States.
Upon consideration ,of these-
commentSj the Agency is finalizing the
requirements applicable to'the contents
of closure and post-closure care plans in
§§ 258.60[c) and 25B.filfc) as prpposed.
With two changes discussed below in
Section c on decontamination and
section d on estimates of.maximum
extent of .operation and maximum
inventory. The Agency continues to
believe .that the level of detail required
ia the plans represents the minimum
level necessary to-ensure adequate, ..
planning by the owner or operator, to
pro vide criteria for .evaluating the
adequacy of these plans, and to ensure
the enforceability of closure .
requirements by citizen suits. The
Agency disagrees that the proposed
requirements would restrict the
flexibility of owners or operators in
preparing the plans JOT limit a State's
discretion in evaluating the adequacy of
these plans. The requirements would
require an owner or operator to provide
extensive detail about the types of
activities that will be undertaken to
meet the closure and post-closuze
criteria; 'however, .most fof the .specific
activities are left up to the:owner,or
operator, thus allowing .him to
incorporate .site-specific conditions.
Similarly, States with (approved
programs will have sufficient flexibility
in evaluating the adequacy of these
plans.
The Agency recognizes the concerns
of commenters about the need for
specificity,in the'closure and post-
closure plans, particularly .since these
requirements will be self-implementing.
The closure and post-closure plans are
critical documents for .ensuring that
owners onpperators of municipal .solid
waste landfills have .adequately planned
for the necessary activities to ensure
that all units are closed ina manner that
provides adequate protection of human
health and the environment. Also,
closure and post-closure care plans
provide the basis forcost'estimates that
hi turn establish -the amount of financial
responsibility that must be
demonstrated. Adequate plans therefore
help to ensure that .owners and
operators demonstrate adequate
financial jesponsibility.
The Agency does not agree with
commenters who lelt that closure plans
should be certified by a professional
engineer,'EPA believes It will be
relatively easy to .verify that the plan
meets the requirements because the
closure performance standard has been
replaced in today's ,rule -with a final
cover design standard in J 25a6DJiaj
providing very .specific directions to the
owner or operator. Any variations from
the final cover standards in | 258.60{a)
must be approved by the.D,irector>of an
approved State. Therefore, EPAibelieves
an additionaLrequirementthat the plant
be certified would place an-unnecessary
burden on owners and ^operators. ,
The Ageneydoes:notagree.with
commenters who'suggested (that faeilitj^
operators should 'be required to ibe
certified.'The Agency believes that the
provisions ;in today's srule, whiqh include
a specific closure design standards, are
sufficient to (ensure that landfills are.,.
closed and maintained after closure In Ja
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7 Wednesday, October 9, 1991 / Rales and HegdaBons
manner that will protect .human health
and the environment, thus'making any
• additional .certification requirements
unnecessary. In addition, the Agency
did not receive suggestions aboul the
kinds-of additional certifications that
would be appropriate for operators of
municipal solid waste landfills. The
absence of a certification requirement
for facility operators in the finaLnde,
however, does not preclude a State from
supplementing the federal criteria with
additional closure and post-closure plan
requirements as deemed:necessai.-y,
,'b. Location of Closure, and Post-Closure
Plans
The proposed lule specified in
§ § 258.30{c) and 258.31{d} that the .
closure and post-closure plans must be
kept at the facility or at an alternate
location designated by the owner or
operator. To be consistent w|th other
recordkeeping provisions of the final
rale* §§ 258,60{d),and 258,61(djofthe
final jule .require the closure and jpost-
closure plans to be included in the
facility operating arecord.
c. Decontamination of me Facility
The proposal would require fhat
closure plans include a description of
procedures for decontaminating the
landfill If 258.30£b3(l)). The proposal did
not specify .the scope of this requirement
or particular activities to be undertalcen.
Many commenters noted that the
Tequirement was ambiguous and
requested that it "be clarified. Tor
example, one commenter noted ftathe
assumed that decontamination applied
to the equipment, structures., and soils
.contaminated by'lubricants or other
similar materials. A number of
cpmmenters were uncertain about the
differences oetween decontamination
activities and corrective action and
noted that they could be inconsistent
For example, one commenter contended
that planning for decontamination was
not practical because such plans would
need to be based on the nature of flie
contamination, which would noVbe
known until the contamination occurred.
Other commenters were concerned that
the requirement implied that feg-jastes
from the landfill must be iremofed at
closure and that •such measures "wets
appropriate only if the landfill posed an
imminent public endangerment andno
other options -were ^available, finality,
some commenters contended 1hat\he"-
requirement was confusing and
recommended that it be deleted
altogether. ^ ...
The Agency recognizes thafftie L
requirement'that the closure plan ;
. describe-decontamuTationactivifiesJias
caused confusion among commenters
and that the ambiguity t>f 8ie
requirement may result in a
misunderstanding ofthe Agency's
intent. The Agency's real -concern in
proposing this requirement was to
ensure that hazardous waste at the site
would be managed adequately. Upon
reconsideration, the Agency determined
that the concerns regarding the receipt
or management of-any hazardous waste
are adequately addressed in the facility
operating standards (see | 258.20) and
need not be included in the closure
criteria. Therefore, the final rule does
not require that a description of
decontamination activities be Included
_ in the closure plan.
• d. Estimates of Maximum .Extent o£
Operation and Maximum Inventory
The proposal would provide that the
closure plan include an estimate of the
maximum extent of operation that ''mil
be open at any time during the active
life of the landfill and the maximum '
inventory of wastes ever on site over the
active life of the landfill (§ 258.3G(b) (2)
and (3)). Several commenters expressed
confusion concerning the definition of
maximum extent of operation and
maximum inventory and questioned
whether the proposed requirements
were necessary. Tor example, some
commenters were concerned that the
maximum extent of operation was
equivalent to the maximum design
capacity of the entire landfill *and as a
result wouldnot account for partial
closures •undertaken over the life of the
facility. -One commenter recommended
requiring the plan to address the areal
extent of fte facility Tequiring-final
grading rather than estimates of ihe
"maximum extent of operation" and
maximum inventory.
In the preamble to the proposed
criteria, the Agency explained that the
estimates of the maximum extent of
operation and maximum inventory ever
on site over the active life of the facility
are important becauseihey are used to
estimate the cost of closure and the level
of financial assurance that is required.
The amount of financial assurance must
account for the maximum costs of
closure to ensure mat adequate funds
are available even if closure takes place
earlier than expected.
The preamble further noted that the
estimate of themaximum extent of
operation of the landfill must account
for the largest portion of the landfill ever
open atany one time over the active life
of the landfill. For example, if an owner
or operator routinely capped portions of ,
the landfill as they xeadhed capacity and
never had more than one acre open at
any time, then the estimate of the
maximum extent of operation would be
one acre. Under the proposal, an area
was -considered open if it was subject to
the regulations and had -not been closed
in accordance wifh the closure
requirements (i.e., tad not been closed
with a final-cover that met the technical
design standards].
Likewise, the estimate of maximum •
inventory referred to the largest amount
of waste ever on,site atxme time that
would need to be handled if,closure
were to occur at any time during the
active life of a municipal solid waste
landfill. Tins estimate Would include
any wastes stored temporarily on site
(i.e., jiot yet disposed) and run-off from
trenches or ditches associated with ihe
landfill. The Agency expects that at
most facilities, minimal inventory wifl
be accumulated on site.
The Agency continues to believe thai
estimates of the maximum area of the
landfffl ever requiring alBnaloover at
one time and of the maximum .inventory
must be includedlnthe closure plans to
ensure that owners or operators have
adequately prepared for closure,
including closure that might occur
unexpectedly at anytime.Inaddition,
these estimates win serve as the basis
for determining the amount of financial
responsihilityneeded in order to ensure
. that owners and operators have
adequate funds to cover themost
expensive cost of closure (i.e., when the
largest area of fee landfill Is open).
Because of the confusion over the
definition of "maximum extent of
operation," however, the Agency is
clarifying me language m the'finalTuIe
by replacing the estimate -of me
"maximum extent 6f-operation" wjifli an
estimate of :the largest area of the
MSWLF lhat wffl ever require a final
cover over the active life,of the facility.
If,an owner or operator routinely closes
landfill cells as they are filled, then the
plan should indicate the greatest number
of cells ever open at one tune. The
Agency is finalizing as proposed the
requirement to include an estimate of
the 'maximum inventory ever on site in
the closure plan.
The Agency wishes to reiterate that
the estimate of the maximum area of the
MSWLF requiring a final cover must
account for all areas of the MSWLF
subject to these regulations and not
already closed in accordance with the
§ 258.60 closure Jequiremenls.
Therefore, portions of the landfill that
have daily cover, but not a final cover
that satisfies Jhe cover design standard,
must he included jn the estimate.
Similarly, me estimate of me maximum
inventory must account for the
maximum amount of wastes on site Jand
not yet disposed) that may need to be
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removed or disposed in the landfill over
the life of the site, including any wastes
that may be stored prior to being
disposed on or off site. The Agency,
however, does not intend the estimate of
maximum inventory to represent the
design capacity of the landfill.
e.'Post-Closure Use of Landfill Property
The proposed rule would require that
the post-closure plan include a
description of planned future uses of the
site. Section 258.31(c)(3) proposed that
the post-closure use of the property
could not disturb the integrity of the
final cover unless the State approved
the owner's or operator's demonstration
that the activities (1) would not increase
the potential threat to human health and
the environment or (2) were necessary
to reduce a threat to human health or
the environment (e.g., disturbance of the
final cover as part of corrective action).
In the preamble, the Agency noted that a
recreational park might be an
acceptable use of property if the above
criteria were satisfied.
The Agency received several
comments regarding the use of landfill
sites during the post-closure care period.
One commenter supported the future use
of closed sites as long as the integrity of
the final cap and liner was maintained
and proper monitoring continued. A few
commenters opposed the subsequent use
of property, noting that post-closure
recreational use (e.g., use of off-road
vehicles) could disturb the final cover,
expose the public to toxic materials, and
promote leachate generation, thereby
providing inadequate protection of
human health and the environment. One
commenter suggested that sites not be
used for at least five years and that an
evaluation of the site by an independent
geotechnical engineer affirming that
subsidence had not occurred be required
prior to any subsequent use.
Upon consideration of the comments,
the Agency is finalizing the proposal
substantially as proposed with changes
to allow for self-implementation and to
clarify the intent of the regulatory
language. To ensure that corrective
action measures could not be construed
as inconsistent with the post-closure use
of property restrictions, the proposed
rule included a provision that a closed
unit could be disturbed if necessary to
reduce a threat to human health and the
environment. To clarify this intent, the
final rule replaces this language with the
provision in § 258.61(c)(3) that states the
owner or operator may not disturb the
integrity of the final cover unless it is
necessary to comply with other .
requirements in part 258. This clarifies
that an owner or operator in an
unapproved State is not precluded from
initiating corrective action if needed.
While the Agency continues to believe
that under very limited circumstances it
may be possible or desirable to allow
certain post-closure uses of land,
including some recreational uses,
without posing a significant threat to
human health and the environment, such
situations are likely to be very limited
and need to be considered carefully. To
ensure that activities othej? than those
necessary to comply with part 258 are
not undertaken without prior approval,
the opportunity to request permission"
for future use of a closed MSWLF for
such activities is available only to
facilities located in approved States. In
an approved State, the Director may
approve a request from an owner or
operator to disturb the final cover, liner
or other component of the containment
system, including removing wastes, only
if the owner or operator demonstrates
that such activities will not increase the
potential threat to human health or the
environment.
4. Sections 258.60[d) and 258.61(d)
Closure and Post-Closure Plan
Deadlines and Approvals
The proposed requirements for closure
and post-closure plan deadlines and
approvals in §§ 258.30(c) and 258.31(d}
would establish the general requirement
that owners or operators must prepare
closure and post-closure care plans by
the effective date of the regulation or
upon the initial receipt of solid waste,
whichever is later. The proposal would
defer to the States for establishing
deadlines for submitting the plans to the
States. The proposal also specified that
plans and any subsequent modifications
to the approved plans would be
approved by the States.
The Agency received a number of
comments regarding the rule's deadlines
for preparing closure and post-closure
plans and the requirements for States to
approve these plans. Most of the
commenters expressed confusion about
the deadlines for preparing and
submitting plans. In particular,
commenters questioned whether plans
must be prepared or submitted by the
effective date of the regulation, at some
later time, or by State-specific
deadlines. Some commenters noted the
possibility of inconsistencies and
conflicts between the proposed
deadlines and State deadlines. Other
commenters expressed concern that the
deadline for completing plans by the
effective date of the rule would not
allow adequate time for many owners or
operators, especially of existing
facilities and those serving smaller
communities, to prepare adequate plans.
Several commenters contended that
without a deadline for the submittal of
plans, it would be difficult to enforce
compliance and ensure the development
. of adequate plans. One commenter
suggested that States should establish
schedules for submitting plans but that .
they should be required no later than
three years after the effective date for
existing facilities. .
Several States expressed concern that
the proposal would require them to
review and approve or disapprove all
plans by the effective date of the rule,
which would pose an undue
administrative burden on limited
resources. Finally, some commenters
expressed concern that the proposal did
not contain specific provisions for public
participation during the plan approval
process.
Based on its experience in the'subtitle
C program, the Agency does not believe
that owners or operators will face an
unreasonable burden in developing
plans by the effective date of the rule. In
implementing similar closure and post-
closure plan requirements under subtitle •
C, the Agency did not encounter
problems for owners or operators of
hazardous waste facilities who were
required to prepare plans within 12
months from the promulgation date of
the rule (i.e., twelve months less time
than the deadlines applicable to owners
or operators of municipal solid waste
landfills). As noted in the preamble to
the proposed criteria, much of the
information required to prepare a
closure and post-closure plan should be
readily available to the owner or
operator based on routine operating
practices. ,
The Agency also continues to believe
that procedural requirements, such as
deadlines for submitting plans to the
States, should be left to the States to
allow them the flexibility to establish
their own priorities, particularly because
many States already have solid wasta
management programs with such
procedural requirements in place.
The Agency does not agree with those
commenters who asserted that without
deadlines for submitting closure and
post-closure plans, adequate plans may
not be prepared. The Agency believes
that the final rule includes a sufficient
amount of specificity to allow owners or
operators to prepare adequate plans.
Because of the above reasons, the
Agency is finalizing the rule
substantially as proposed with some
changes in order to allow for self-
implementation of the rule. The final
rule continues to require that owners
and operators prepare their closure and
post-closure plans by the effective date
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of the regulations m the initial receipt of
waste,, whichever Is later, Consistent
with the other recordkeeping
requirements in the final rule, the owner
or operator must notify the State
Director that the plans have been
prepared and placed in the operating
record of the facility. To allow for self-
implementation, thexule no longer
includes the requirement that States
must approve the plans.
5. Section. 258.G0 (f) and(g) Deadlines
for Closure
a. Deadline for Beginning Closure
The Agency proposed in § 258.30{d)
that owners and operators would begin
closure of each landfill unit in
accordance with an approved closure
plan no later than 30 days after the final
receipt of wastes at that unit. The
proposal did not define the "final receipt
of wastes"; however, in the preamble
accompanying the proposed rule, the
Agency encouraged States to define the
final receipt of waste to preclude
landfills from jemaining inactive for an
indefinite period of time .by .claiming
they had not received the final shipment
of waste. The Agencysuggested that
States adopt a standard requiring .sites
to begin-closure within 30 days of ;the
final receipt of waste, or no later than
one year after the most recent receipt of
waste if landfill capacity was .available.
The proposed rule would give States .the
discretion.to jgrant extensions to the
deadline for beginning closure, provided
that the landfill unit 'Would .not pose a
threat to Tiuman health or the , "
environment. ' '
The Agency received numerous
comments on this proposed requirement.
While some commenters favored the 30-
day deadline, most commenters argued
that the 'SO-day deadline for beginning
closure would not be feasible or
desirable under a number of
circumstances, such as adverse weather
conditions or unavoidable contract
delays. These commenters suggested 90
days orlBO days from the date of .the
final receipt of waste, with .allowances
for extensions, contending that these
longer thneframes would reduce the
number of requests for extensions and
pose no unreasonable risk to human
health and the environment. Finally,
some commenters recommended that
the Agency not -specify a deadline in the
regulation but delegate to the States the
responsibility of establishing closure
schedules.
The Agency received a number of
comments •supporting the Inclusion of
extensions to the 30-day deadline to
account for circumstances-such as
seasonal conditions that preclude
initiating earthmoving activities, or
landfills that have remaining capacity
but are experiencing business
fluctuations. Commenters also noted the
need for specific criteria for granting
extensions to the deadline to begin
closure. Most stated that detailed
criteria for granting extensions were
necessary to ensure adequate protection
of human health and the .environment.
Suggestions included specifying a time
limit for xvhich extensions may be
granted to ensure that sites were closed
in a timely manner, and allowing the
appropriate authority to grant
extensions to the deadline for beginning
closure only if the owner or operator
demonstrates that the unit or facilityJias
remaining capacity, and that the owner
or operator is operating, and will
continue to operate, the facility m a
manner that ensures the protection of
human health and the environment,
including complying with all applicable
regulations. '.- •
In response to public comments and to
make the reqnirements'self-
implementing, the final rule in $ 258.60(f)
requires an owner or operator to begin
closure within 30 days after the final
receipt of waste, or no later than one
year from "the most recent receipt of
waste under certain circumstances.
Extensions beyond the one-year
deadline are available only in approved
States if certain criteria are met.
The Agency continues to believe it is
important to establish deadlines for
triggering closure of landfills to avoid
potential threats to human health and
the environment posed by inactive but
unclosed landfills, particularly for
facilities located in unapproved States.
The Agency believes that in most cases,
30 days from the final receipt of waste
will provide sufficient time to begin
closure activities. The Agency wisherto
reiterate thatihe30-day deadline refers
to the beginning of closure activities and
does not-require- that closure be
completed within 30 days, or that
procedures for Installing the final cap
necessarily begin -within this -SO^day
deadline. Since all-owners-or operators
will be required to have prepared
closure and post-closure plans by the
effective date of the regulations, the
owner or operator should be prepared to
begin closure procedures of each unit
within the specified time frame. As
discussed below, flie&ial rule allows
owners or-opera tors, in limited
circumstances; to delay closure up to
one year after the most recent receipt of
waste, which should minimize any-
burdens on owners or operators.
The Agency agrees -with commenters
who argued that it may be desirable to
allow a unit or facility to delay closure if
the landfill unit has Temaining capacity.
Therefore, the final jule allows an
owner or operator of ,a landffll to lelay
closure up to one year Iram.the most
recent receipt of waste if the landfill unit
has remaining .capacity and there is a
reasonable likelihood that the unit will
receive additional wastes. In addition,
the Director of an approved State may
grant extensions beyond this one-year -
deadline for beginning closure under •
certain circumstances.
The Agency also agrees with
commenters that criteria forgrantiiig
extensions to the closure deadlines are
important for ensuring that units or
facilities do not unnecessarily delay
closure if such delays would pose
threats to human health and the
environment. Therefore, the final rule
adds criteria to f 258,60(f) and allows
the Director qf an .approved State to
grant an extension to the maximum one-
year deadline to begin closure if the
owner or operator demonstrates that the
unit has the capacity to .receive v'
additional wastes, andiheiias taken and
will continue to take all steps to prevent
threais to human health and the
environment from .the unclosed landfill.
The Agency also received comments
requesting clarification of the term "final
receipt of •wastes." The proposal stated
that closure must ibegm within 30 days
. of the "final receipt of waste." Most
commenters suggested that the Agency
define ""final receipt of wastes,"-arguing
that the lack of a uniform definition
would threaten the protection *>f human
health and the erivironment by allowing
sites to remain inactive Jor'an indefinite
amount of time. SuggesMons Included
defining "final receipt of waste" as the
last expected receipt of waste to
account for extended periods of
inactivity in rural areas and infrequently
used landfills, and linking the trigger for
beginning closure to design capacity to
avoid forcing a'landfill to close if it«till
has capacity and intends to Teeeive
additional-wastes. Commenters-argued
this approach would prevent owners or
operators from receiving periodic
shipments of wastes -solely to avoid
closure even though the unit had
reached its design-capacity.
The Agency agrees that it is necessary
to include a more explicit definition of
"final receipt of waste" to ensure that
closure is not deferred indefinitely. The
Agency also recognizes that in some
cases, a landfill may receive "wastes
relatively infrequently (as maybe the
case with small, rural landfills} but have ,
remaining capacity.'Therefore,
§ 258;60ffJ of the-final ruleTequires'that
owners or operators begin closure of
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Federal Register / Vol. 56, No. 196 / Wednesday, October 9.1991/ Rulesjind Regulations^
each unit within 30 days after the known
final receipt of wastes or. if the landfill
has remaining capacity and there is a
reasonable likelihood that the landfill
will receive additional wastes after the
30-day period, no later than one year
after the date on which the unit received
the most recent volume of wastes. This
defim'Hon will ensure that units are
closed when they are unlikely to receive
any additional wastes or have no
remaining capacity and, at the same
time, will provide sufficient flexibility to
account for routine business cycles and
other business disruptions.
b. Deadlines for Completing Closure
While the proposal did not specify
deadlines for completing closure, the
Agency recommended in the preamble
accompanying the proposed rule that
States develop specific deadlines and
milestones for completing closure
activities. The Agency also requested
comments on whether the federal
criteria should include a deadline for the
completion of closure.
A number of commenters supported
the proposal to leave deadlines for
completing closure up to the States, thus
allowing the States flexibility to account
for the unique situations of sites within
each State (e.g., weather conditions,
availability of contractors). The majority
of commenters. however, recommended
that a specific deadline be set for
completion of closure to ensure that
closure is not unnecessarily delayed.
Commenters suggested a number of
different deadlines: Some commenters
suggested the Subtitle C requirements of
180 days with an option for extensions,
and others recommended time periods
of one year to one and one half years.
One commenter suggested that the
Subtitle C interim milestone of 90 days
for managing all inventory also be
incorporated into the rule's closure
deadlines.
Particularly because the final rule
utilizes a self-implementing approach,
the Agency agrees with the commenters'
concerns that including a deadline for
completing closure is necessary to
ensure that the completion of closure is
not delayed indefinitely. Therefore, the
Agency is adding § 258.60(g) to the final
rule to require that closure of each unit
must be completed within 180 days of
the beginning of closure activities. The
Agency recognizes that in limited
circumstances climatic conditions and
other factors may make it difficult to
complete closure within 180 days.
Therefore, the final rule also allows the
Director of approved States to grant
extensions to the 180-day deadline if the
owner or operator demonstrates that
closure cannot be completed within 180
days, and he has taken all steps
necessary to ensure that delaying the
completion of closure will not pose a
threat to human health and the
environment. This 180-day deadline and
the option for the Director of an
approved State to grant an extension
under limited circumstances are
consistent with the deadlines under
subtitle C in 40 CFR 264.113 and 265.113.
This approach is also consistent with
comments submitted by a number of
parties as noted above.
The Agency does not believe that it is
necessary to incorporate a 90-day
interim deadline for removal of
inventory into the closure deadlines.
The Agency does not anticipate that
municipal solid waste landfills are likely
to accumulate large quantities of
inventory that could pose a serious
threat to human health and the
environment if they were not managed
quickly. Furthermore, the Agency does
not want to restrict State flexibility
unless it is necessary to protect human
health and the environment. States may
wish to incorporate interim milestones
in their programs to take account of site-
specific or State-specific conditions (e.g.,
interim deadlines for installing final
covers if deemed appropriate to account
for special climatic conditions).
6. Section 258.60(eJ Closure
Notification Requirement
The proposal did not include a
requirement that owners and operators
notify the States of the commencement
of closure. The Agency instead
recommended that States develop their
own closure notification requirements to
allow time for facility inspections to
ensure that the approved closure plan
was still applicable. (The proposal
would require that all closures be in
accordance with an approved closure
plan but would leave to the States the
responsibility of establishing review
procedures.)
Several commenters disagreed with
the Agency's position that closure
notification requirements should be
deferred to the States, arguing that
specific notification requirements are
necessary to allow States the time to
inspect facilities and ensure that the
approved closure plan was applicable.
In addition, commenters noted that
advance notification would help to
avoid inactive but unclosed sites.
Commenters suggested that the Agency
incorporate the requirements of Subtitle
C and require notification at least 60
days prior to closure. Commenters also
recommended including provisions for
public participation as part of the
notification requirements.
Upon consideration ,of the comments,
the Agency decided to add a notification ,
requirement to the final rule in
§ 258.60(e). The final rule requires all
owners or operators (in both approved
and unapproved States) to notify the
State in which the facility is located
prior to beginning closure of each unit,
and place a notice of impending closure
in the facility operating record. The
Agency believes that notifying the State
of closure is important to provide States
and citizens an opportunity to ensure
that the activities described in the
closure plan are appropriate to close the
unit under current conditions. This is
particularly important for today's self-
. implementing rule because there are no
requirements to approve the closure and
post-closure plans prior to closure.
7. Section 258.61(a) and (b) Length of
Post-Closure Care Period
The Agency proposed under
§ 258.31(a) that owners and operators of
MSWLFs must conduct two phases of
post-closure care. During the first 30
years of the post-closure care period
(Phase I), the proposal'would require the
owner or operator to conduct routine
maintenance of the jfinal cover, conduct
ground-water monitoring, continue
leachate collection and gas monitoring
requirements if subject to these
requirements during the facility's
operating life, and maintain the integrity
of these monitoring systems. Leachate
collection systems would be required to
be.operated until leachate was no longer
generated.
Following completion of the first
phase of post-closure care at each
landfill unit, the proposed rule would
require in § 258.31(b) that owners and .
operators of MSWLFs conduct a second,
less-intensive phase of care that
included, at a minimum, groundwater
monitoring and gas monitoring in order
to detect any contamination that might
occur beyond the first.30 years of
postclosure care. The proposal would
leave to the States the responsibility for
specifying the duration and the specific
activities to be conducted during this
second phase.
In the preamble Jto the propose'd rule,
the Agency requested comments on the
two-phased approach, information on
the frequency and timing of releases
from landfills, suggestions for criteria
that could be used to evaluate the length
of the post-closure care periods,
appropriate demonstrations for
terminating the post-closure care period,
and other pertinent information based
on experiences with closed landfills.
Commenters were nearly unanimously
opposed to the proposed length of the
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October 9, 1991 / Rules and Regulations 51101
post-closure care period and suggested a
variety of alternatives. Several
commenters argued that the minimum
30-year Phase I post-closure care period
was unnecessarily long, contending that
a landfill reaches equilibrium in as few .
as ten or fifteen years after which
significant quantities of leachate and
methane gas are no longer generated.
Others recommended a mandatory
period of five, ten or twenty years with
the option to extend the time frame only
if the State determined it to be X
necessary. Finally, some recommended
granting the States more flexibility hi
determining the length of post-closure
care period.
Several commenters specifically
opposed a mandatory second phase of
post-closure care asserting that
additional post-closure care beyond 30
years should only be required on a case-
• by-case basis if a problem exists. Other
commenters noted that the proposal was
more stringent than subtitle C
requirements, and recommended that
the final rule be consistent with subtitle
C and delete the second mandatory
phase and allow States the discretion to
reduce or extend the 30-year Phase I
requirements. Granting States the
discretion to increase the length of the
period if necessary to protect human
health and the environment on a case-
by-case basis eliminates the need for a
mandatory Phase II period. Many
commenters also noted the economic
burden of a potentially infinite Phase II
post-closure care period.
In contrast, some commenters
asserted that a 30-year Phase I post-
closure care period was not long enough
and urged the Agency to lengthen the
Phase I period because leachate and gas
formation may continue beyond the first
30 years after closure and releases may
occur when liners and leachate
collection systems fail. One commenter
contended that perpetual care would
likely be required. Other commenters
argued that unless owners or operators
continued to maintain the cover and
prevent the infiltration of liquids into the
landfill after the initial 30-year period,
significant amounts of water would be
introduced into the landfill, leachate and
methane gas would be generated, and
releases would likely to occur. Finally,
commenters suggested that the Agency
establish criteria for determining when
reductions in long-term postclosure care
are warranted to avoid inconsistent
implementation of the requirements and
to ensure that reductions are allowed
only when there is no significant threat
to human health and the environment.
After carefully considering the public
comments received, the Agency decided
to drop the two-phased approach to v....
post-closure care, and is requiring in
§ 258.61(a)(l)-(4] that owners or
operators conduct post-closure care
activities for a period of 30 years after
the closure of each MSWLF unit. 'Section
258.61(b) allows the Director of an
approved State to extend or reduce the
30-year period based on cause.
Reductions in the length of the period
will only be permitted if the owner or ,
operator demonstrates that a shorter
period is sufficient to protect human
health and the environment. Increases in
the post-closure care period may be
made if the Director of an approved
State determines that the lengthened
period is necessary to protect human
health and the environment.
Although commenters suggested
various alternative post-closure care
periods, the Agency does not have data
to enable it to evaluate the alternatives
suggested. While one commenter
submitted some data suggesting that
equilibrium would generally occur ten to
fifteen years after closure, this
assessment was made based only on gas
generation rates. No leachate data were
submitted. The Agency did not receive
empirical evidence demonstrating that
discontinuing post-closure care after the
stabilization of an MSWLF would be
- adequately protective of human health
and the environment. The Agency also
did not receive any data.supporting any
of the other recommended time periods,
including the need for longer tune
.periods. Therefore, the Agency does not
have data at this time to support a
requirement that is either more or less
stringent than-subtitle C requirements.
The Agency is allowing this 30-year
period to be decreased or increased by
the Director of an approved State to
account for situations where a 30-year
post-closure care period may be
inappropriate based on site-specific
conditions. Providing for variances in
the post-closure care period in approved
States allows the flexibility to
accommodate differences in geology,
climate, topography, resources,
demographics, etc. In all cases, however,
the Agency is convinced that these
decisions must be reviewed carefully
and be subject to State review to ensure
that units are monitored and maintained
for as long as is necessary to protect
human health and the environment.
8. Section 258.61(a) Post-Closure Care
Activities
The Agency received varied
comments on the types of activities that
should be undertaken during the post-
closure care period. A number of
commenters supported the requirements
as'-proposed. In contrast, some
commenters asserted that the
requirements should be made less
stringent, arguing that municipal solid
waste landfills do not pose the same
risk as hazardous waste landfills (e.g.,
MSWLFs located in rural areas). Others
contended that the very large costs
associated with 30 years of ground-
water monitoring would be burdensome
to owners or operators. Several
commenters contended that the
proposed post-closure criteria did not
provide sufficient guidance to the States
and recommended that more specific
post-closure care requirements be
promulgated in order to adequately
protect public health.
The. Agency received extensive
comments on the proposed post-closure
care leachate collection requirements.
Several commenters objected to the
requirement that owners or operators of
landfills maintain arid operate the
leachate collection system until leachate
is no longer generated, claiming that
leachate may be generated in perpetuity,
especially under certain climatic
conditions. One commenter stated that •
the proposed definition of leachate as
"liquid passing through or emerging from
solid waste that constrains soluble,
suspended or miscible.material" ensures
that leachate will need to be collected in
perpetuity even though it may pose
limited threats/Others contended that it
may be environmentally acceptable to
stop pumping leachate if the
contaminant concentrations reach
environmentally acceptable levels as
determined by the State.
After consideration of the
commenters' concerns, the Agency
decided to finalize the proposed post-
closure care activities in § 258.61(a) with
one change to the leachate collection
requirements as discussed below. The
Agency believes that requiring owners
or operators at a minimum to maintain
the cover and containment systems and
to continue ground-water monitoring,
gas monitoring, and leachate collection
is consistent with the Agency's dual
goals of preventing releases of
constituents and detecting releases that
occur as qaickly as possible.
The Agency does not believe that
more specific post-closure care
requirements are necessary. Many of the •
post-closure care activities are
extensions of activities conducted
during the operating life of the facility
and should not require extensive
facility-specific analyses. Furthermore,
the final rule does riot prescribe the
precise activities that must be
undertaken to achieve these objectives;
thus, the rule provides sufficient
flexibility to account for those'facilities
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51102 Federal Register / Vol. 56. No. 196 /Wednesday, October 9, 1991 / Rules and Regulations^
lhai pose low risks to human health and
the environment
The Agency reconsidered the
proposed leachate collection
requirements and acknowledges that at
some Jandiills, leachate concentrations
may eventually become low enough to
pose no threat to human health and the
environment. However, because of the
potential threats posed by leachate, the
Agency believes that the decision to
stop managing leachate must be
reviewed and approved by the State.
Therefore, the final rule in § 258.61(a)(2)
requires that owners or operators
continue to collect and manage leachate
in accordance with the requirements of
§ 258.40 for 30 years consistent with all
other post-closure care requirements. In
an approved State, the Director may
allow an owner or operator to cease
managing leachate if the owner or
operator demonstrates that the leachate
no longer poses a threat to human health
and the environment
A few commenters argued that post-
closure care activities were overly
burdensome for small landfills and that
such facilities should be exempt from
the revised criteria. While the Agency
recognizes the wide diversity in site
conditions and encourages States to be
flexible in evaluating post-closure care
requirements on a case-by-case basis,
the Agency is unwilling to grant less
stringent requirements or exemptions to
small landfills that otherwise do not
meet the criteria for exemptions to
today's rule as discussed in Section
1VA of the preamble. Without post-
closure care, the probability of future •
contamination greatly increases. In
addition, the costs of cleaning up a
release that might occur hi the absence
of post-closure care would likely be
much greater than if the site had been
properly maintained and monitored and
under constant surveillance.
0. Section 258.60 (i) and(j) Notation on
the Deed to Property
Proposed | 258.31(e) would require
that following closure of the entire
landfill, the owner or operator must
record a notation on the deed or some
other instrument normally examined
during a title search that will notify any
potential purchaser in perpetuity that
(!) The land has been used as a
municipal solid waste landfill, and (2) its
use is restricted under § 258.31(c)(3). The
proposed rule also would allow an
owner or operator to request permission
from the State to remove the notation if
all wastes were removed from the
facility.
Some commenters argued that an
owner or operator should not be
allowed to remove the notation from the
deed under any circumstances, asserting
that potential purchasers should be
made aware of the full history of the site
and be alerted to potential defects or
liabilities associated with the land, even
when all wastes have been removed.
These commenters argued that the
persistence and the difficulties of
detecting leachate plumes and the
uncertainties of evaluating the potential
for future health risks further supported
their recommendation of retaining the
notation on the deed.
The Agency considered the
commenters' concerns but disagrees that
property owners should never be
allowed to remove the notation on the
deed and is finalizing the rule as
proposed. The Agency continues to
believe that if all wastes have been
removed from the facility, including any
contaminated ground-water and soils,
then the property poses no greater threat
than one that never was used to manage
municipal solid waste. This provision is
consistent with subtitle C requirements
for hazardous waste facilities. However,
the Agency strongly believes that a
decision to remove the deed notation
must be considered carefully and that in
practice very few owners or operators
will be able to take advantage of the
provision. To ensure that this option is
allowed only on a very limited basis,
§ 258.80Q) of the final rule limits the
option to remove the notation to the
deed to facilities located in approved
States if the owner or operator can
demonstrate that all wastes have been
removed from the facility. To
demonstrate that all wastes have been
removed from the facility, the owner or
operator would not only need to remove
the entire contents of the landfill and its
containment structures, but also
demonstrate that no contamination
exists in the ground water or in the soils
at the facility.
Commenters also asserted that the
owner or operator should be required to
provide a copy .of the deed and its
notation to the State in order to ensure
compliance and facilitate enforcement.
Consistent with the provision of self-
implementing standards throughout
today's final rule, the Agency is
requiring in § 258.60(i) that owners or
operators notify the State Director that
the notation on the deed has been
recorded and place a copy of the
notation in the facility operating record.
One commenter recommended that
the requirement to include a notation on
the deed be required as part of the
closure requirements rather than as a
post-closure care activity. The Agency
acknowledges the commenter's concern
that the notation on the deed be filed in
a timely manner; however, in those rare
circumstances where all wastes are
removed as part of closure, it will be
necessary to complete closure before it ,
can be determined if a notation on the
deed needs to be recorded. The Agency
has made two minor changes to today's
final rule to encourage owners or
operators to file the deed notation
quickly. First, while ;the requirement
itself is being finalized as proposed, it is
included in .§ 258.60(i) of the closure
criteria to encourage the owner or
operator to file the notation concurrent
with the closure certification. Second, as
discussed in appendix H of today's
preamble, § 258.71[b) of the final rule
specifies that an owner or operator is
not released from closure financial
assurance requirements until he has
filed the notation, on the deed. In most
instances, by tying the requirement to
file a notation to the deed to the release
from closure financial assurance, the
owner or operator will have a financial
incentive to file the deed notice quickly.
10. Sections 258.60(h) and 258.61(e)
Closure and Post-Closure Care
Certifications
In § § 258.30(e] and 258.31(f), the
Agency proposed that following closure
of each landfill unit and following
completion of the second phase of the
. post-closure care period for each,unit,
owners and operators must submit
certifications that closure and post-
closure care activities have been
performed in accordance with the
approved plans. The rule would require
that a "qualified party" provide
objective verification, based on a direct
review of the landfill, that closure and
post-closure care activities had been
properly completed. Upon approval of
the certification by the State, the owner
or operator would be released from
financial responsibility requirements
under § 258.32(f). The Agency would
defer to the States for establishing
procedures for implementing these
requirements (e.g., the types of
certification that would satisfy the ,
requirements, documentation
requirements, deadlines for
submissions).
The Agency received numerous
comments on the certification
requirements. Most of the commenters
favored requiring some type of
certification or notification of the
completion of closure and post-closure
care to ensure that owners and
operators close their landfills and
maintain them in accordance with their
approved plans, although comments on
the specific requirements (e.g.* how
frequently to certify post-closure care,
procedural requirements'! were varied.
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oL 56
9' 1991 ^ Rules and
One eommenter questioned how the
post-closure care requirements would be
implemented in the absence of the State
approving the closure certification.
Some commenters recommended that
certification requirements be left.to the
discretion of the States. Others
contended that certification by a
"qualified party" would not be
necessary and, in fact, could be
counterproductive in States where
facilities are inspected on a regular
basis. -
The Agency continues to believe that
certifications are necessary to ensure
that closure and post-closure activities
are performed in accordance with the
closure and post-closure plans,
especially because the completion of
closure and post-closure care triggers
the release of the owner or operator
from financial assurance requirements
and other requirements. Moreover,
because the final rule utilizes a self--
implementing approach, the Agency
remains convinced that it must require
certifications in the revised criteria
rather than simply providing guidance to
the States. Closure and post-closure care
certifications provide an objective way
to verify that closure and post-closure
care activities have been performed in
accordance with the plans.
The Agency also agrees with those
commenters who favored including a
notification requirement of the
completion of closure and post-closure
care, particularly for facilities located in
unapprbved States. The Agency agrees
that it is important for the States to have
the opportunity to review the adequacy
of closure and post-closure care
activities, particularly in unapproved
States, and addresses this concern in
two ways in the final rule. First,
§ § 258.60(h) and 258.61(e) of the final
rule require all owners and operators to
notify the State that closure or post-
closure care has been completed and
certified by an independent registered
professional engineer or approved by
the Director of an approved State.
Second, the certification must be placed
in the facility operating record and thus
can be reviewed to verify that closure
and post-closure care have been
performed in accordance with the plans.
The requirement to notify the State prior
to the beginning of closure combined
with this subsequent notification of the
completion of closure or post-closure
care should help to ensure that
municipal solid waste landfills are
closed properly and maintained after
closure. .
• The Agency does not believe that the •
lack of ap woval of the closure
certification, particularly in unapproved
States, precludes an owner or operator
from conducting post-closure care. The
certification requirements in the final
rule are intended to be self-
implementing and as a result, the owner
. or operator is responsible for beginning
post-closure care after closure has been
completed.
The Agency also disagrees with
comments that certification of closure
and post-closure care may be
inappropriate and counterproductive hi
States that inspect facilities on a regular
basis. Requiring an owner or operator to
submit certifications following the
completion of closure and post-closure
- care activities will not interfere with
any scheduled State inspection, and iii
fact could help to verify the accuracy of
the owner or operator's certification. At
the same time, the Agency does not
wish to impose any additional burdens
on States' inspection capabilities, which •
could result if they were required to
review all closure and post-closure care
activities in lieu of a certification
requirement. :
The Agency also received a number of
suggestions regarding the specific
certification requirements. Many of the
commenters expressed concern that the
requirements to obtain a certification by
a "qualified party" was too vague to be
effective and recommended that
independent registered professional
engineer certifications be required.
The Agency agrees with commenters
that objective closure and post-closure
certifications are essential for avoiding •
any potential conflicts of interest and
ensuring protection of human health and
the environment and that more specific
requirements concerning the
qualifications of the certifying party are
necessary to ensure the adequacy of the
certification. The Agency, therefore, is
requiring in the final rule that
certifications be obtained from
independent registered professional
engineers (i.e., registered professional
engineers not in the employ of the owner
or operator], consistent with
requirements under subtitle C and other
federally mandated certification
programs (e.g., Clean Water Act grants).
The Agency also received comments
on the proposed requirements to certify
closure and post-closure care on a per-
uriit basis and to certify the completion
of post-closure care at the end of the
entire post-closure care period. Some
commenters supported this approach
and noted that it is consistent with
subtitle C. Some commenters, hqwever,
recommended requiring certification of
closure only at final closure of the entire
landfill and at the end of the post-
closure care period for the entire landfill
to reduce costs. Others suggested
requiring post-closure care certifications
more frequently than proposed (e.g., at
least every five years) to ensure that
post-closure .care activities are being
" conducted in accordance with the
approved plan.
The Agency is finalizing as proposed
the requirement that closure
certifications be submitted after closure.
of each unit. Although certifying closure
of each unit rather than closure of the
entire facility may be more expensive,
unless closure of each unit is certified
when closure is performed, it will not be
possible at the time of final closure to
determine if the previous closures were
: performed in accordance with the
approved closure plan. This approach/is
consistent with the subtitle C closure '
and post-closure care requirements
applicable to owners and operators of
hazardous waste treatment, storage, and
disposal facilities, which require closure
and post-closure by requiring .
certifications on a perrunit basis. :
The Agency also believes that
requiring one certification to be
performed at the end of the post-closure
care period for each unit is sufficient
and is therefore finalizing this provision
as proposed. Because an owner or
operator must continue to monitor
ground water during the post-closure
care period, the State will be notified
and actions will be taken if releases are
detected. It should also be noted,
however, that certification at the end of
the post-closure care period for each
unit is the minimum required under
these regulations. States have the option
of requiring more frequent certifications
if they determine that they are
necessary.' ,
Appendix H—Supplemental Information
for Subpart G—Financial Assurance
Criteria
: Under the proposed rule, the owner or
operator of a,new or existing MSWLF
would be required to demonstrate
financial assurance for the costs of
conducting closure, post-closure care,
and, as applicable, corrective action for
known releases. These requirements
have been retained in today's rule/Also
an owner or operator would be required
to demonstrate to the State that he had
planned for these future costs by
preparing written cost estimates based
on detailed written plans required in
§ 258.30(b) and 258.31(c). The final rule
also requires these cost estimates. Cost
estimates and financial assurance
documentation are required to be kept in
the facility operating record. Alternative
recordkeeping locations and alternative
schedules for recordkeeping and
notification requirements may be
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51104 Federal Register / Vol. 56, No, 196 / Wednesday. October 9. 1991 /Rules and Regulations
established by the Director of an
approved State.
While the proposed rale would require
owners and operators to demonstrate
financial assurance for closure, post-
closure care, and corrective action for
known releases, it did not specify the
types of mechanisms that could be used
to demonstrate financial assurance.
Instead, a performance standard was
proposed that specified criteria that
would have to be satisfied by any
mechanism that was used. In response
to comments on the proposed rule, the
final rule provides greater specificity
concerning acceptable financial
instruments, while continuing to provide
States with considerable flexibility in
establishing fheir financial assurance
programs. In addition, the Agency is
intending to propose under separate
rulemakings a revised corporate
financial test that would apply to
owners or operators of MSWLFs and a
financial test specifically designed for
local governments.
Numerous comments were received
by the Agency on the financial
assurance requirements. Major issued
raised by commenters are summarized
below. All comments are responded to
fully in the Financial Assurance
Comment Response Document
1. Section 258.70(b) Effective Date of
Financial Assurance Requirements
Under the proposed rule, the financial
assurance requirements would be
effective on the same day as all other
requirements applicable to MSWLFs,
i.e., 24 months following promulgation of
the final rule.
A number of commenters objected to
the proposed effective date of the
financial assurance requirements and
suggested that the financial assurance
requirements be decoupled from the rest
of the rule and that the comment period
be extended. In support of this
suggestion, several commenters stated
that it may be Impossible for some local
governments to meet requirements
immediately if they operate on yearly
budgets. Other commenters argued that
facilities closing in the near future may
have difficulty accumulating sufficient
funds to assure 30 years of post-closure
care. Another commenter argued that it
was unreasonable for EPA to expect the
States to have a framework in place to
approve the operating and design
criteria and the financial assurance
mechanisms within 18 months of the
final rule.
The Agency considered the
commenters' concerns and agrees that
additional time will help ensure the
effective Implementation of the financial
assurance requirements. Accordingly,
EPA has decided to make the financial
responsibility requirements effective 6
months later than the remainder of
today's rule. The financial assurance
requirements contained in today's rule
will be effective 30 months following
publication of today's rale. The Agency
agrees that owners and operators,
especially local governments, may face
difficulties in obtaining financial
assurance mechanisms within 24
months, particularly since the proposed
rule did not include a financial test
designed for local governments. The 6
additional months will allow the Agency
time to finalize a financial test for local
governments, thus providing an
additional mechanism for compliance to
those members of the regulated
community. Extending the effective date
will also allow the financial market
sufficient time to respond to new
demands for financial instruments,
thereby facilitating compliance and
helping to ensure effective
implementation of the requirements. The
Agency continues to, believe that the
financial assurance requirements are
important to the effective
implementation of the overall program
for management of MSWLFs,
Accordingly, the Agency does not
believe it is appropriate to decouple
these requirements from the rest of
today's rulemaking.
2. Need for Financial Assurance
As stated in the preamble to the
proposed rule, EPA believes that the
financial assurance requirements will
help ensure that owners and operators
adequately plan for the future costs of
closure, post-closure care, and
corrective action for known releases,
and will help ensure that adequate
funds will be available when needed to
cover these costs if the owner or
operator is unable or unwilling to do so.
These benefits are similar to those
derived from the subtitle C hazardous
waste and subtitle I petroleum
underground storage tank financial
responsibility programs.
The Agency received a number of
comments addressing the benefits and
costs anticipated from requiring owners
or operators to demonstrate financial
assurance. Commenters who supported
the financial assurance requirements
agreed that the requirements would
foster long range financial planning by
MSWLF owners and operators and
further argued that the requirements are
minimal requirements that are necessary
to provide protection for health and the
environment. These commenters argued
that the requirements should not have to
a wait; the development of State
regulations. , :• •" ,
Other commenters, however, did not
believe that EPA had adequately
established the necessity of financial
assurance requirements for protecting
human health and the environment from
threats posed by MSWLFs. These
commenters argued that MSWLFs do
not pose the same hazards as.subtitle C
landfills, and therefore the financial
assurance requirements*should be less
stringent than those for subtitle C
facilities. A few commenters contended
that the requirements would provide
little benefit, while another group of
commenters.argued that because
financial responsibility is not required
by statute, itis outside EPA's
Congressional mandate and has been
imposed,arbitrarily by ihe Agency.
Several commenters raised the
concern that the.costs associated with
obtaining financial assurance
instruments would be high, and in some
cases, would drive out of business
owners and operators who could
otherwise meet technical requirements
(thereby leaving the costs of closure and
post-closure care unfunded), or prevent
owners and operators from starting
operation of new sites. Some
commenters noted in particular the high
costs associated with 30 years of
ground-water monitoring during the.
post-closure care period. A number of
commenters were concerned that small
private operators, small local
governments, and MSWLFs operated in
remote and sparsely populated areas in
particular would be unduly burdened by
the requirements.
EPA believes that it has ample
authority to require financial assurance
demonstrations under today's rule.
Sections 10Q8(a) (3), 4004(a), and 4010 of
RCRA, as amended by HSWA, direct
the Agency to develop criteria to protect
against potential adverse impacts to
human health and the environment from
solid waste disposal activities. The
Agencyias determined that financial
responsibility is a necessary component
of the regulatory program and is
essential to protecting human health and
the environment
The Agency has long maintained that
financial responsibility requirements are
an important component of any
regulatory scheme, such as today's Part ,
258 criteria. In establishing the
regulatory framework for the
management of municipal solid waste,
the Agency believes that inclusion of
financial responsibility requirements
; will promote the overall statutory and ,
regulatory goals of RCRA by
encouraging the; development and
implementation of sound waste
- .management practices both,during and
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federal Register / ¥ol ,56, 'No. :19B ./ WiectoeB.day.. jOfitebBi U 1991,/ -.faies and JRegulatloBS StiSS
at the end ofacfere facility gopenitions.
Specifically, ithe regiiiTemenis wffl
ensure that .adequate funds ace •
available to cover file'costs of closure,
post-closure ©are, asadcoxractiiwe action
activities,, which, if snot planned for, '
often areleft tunfunded. .Additional
governmental (expenditures would {then
.be necessaay to ensure icaatiiiued
protection >0f human health and ithe
environment. • . . • -
Technicalffl2that these
costs are legitimate business expenses
and should beaeeounted for in the , •'.
operating budgets ®f MSWLEs iin larder
to operateefficiently. ;
The Agency does snot believe that
ownsrs and(operators wvill foe
•unreasonably busdeneS by the costs .of
obtaining financial assurance
mechanisms. Thecost.of (complying wilh
the financial assurance requirements
should mot be excessive and will be a
relalseiy small pait .of the total costs
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51106 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
3. Section 258.70(a) Applicability
The proposal would require all
owners and operators of MSWLFs,
except State and Federal government
agencies, to demonstrate financial
responsibility for closure, post-closure
care and corrective action for known
releases. The proposal also requested
comment concerning whether Indian
tribes should be subject to the
requirements.
a. Applicability to State and Federal
Government Entities
The proposal would exempt from the
required financial assurance
demonstrations MSWLFs that are
owned or operated by government
entities whose debts and liabilities are
the debts and liabilities of a State or the
United States. The Agency recognizes
that Federal and State governments
have the requisite strength and stability
to fulfill their financial assurance
obligations for MSWLFs.
No oommenters disputed the Agency's
position that Federal and State
governments have the financial strength
and incentives to cover the costs of
closure, post-closure care, and
corrective action for known releases.
Nevertheless, several commenters
argued that State and Federal
government entities should be required
to demonstrate financial assurance.
These commenters argued that as a
matter of fairness all levels of
government should he treated the same;
either all government entities should be
required to demonstrate financial
assurance or all should be excluded
from the requirements. Other
commenters asserted that exempting
any MSWLFs will disrupt competitive
forces within the industry.
Two commenters had specific
questions about how the requirement
should be interpreted. One conunenter
urged EPA to exempt public authorities
whose debts and liabilities are the debts
and liabilities of a State. This
' commenter argued that a single-purpose
authority is as fiscally sound as a State
because if a State decides to dissolve
the authority, the State must take over
any bonded debt issued by the
authority. The other commenter
suggested that the Agency should clarify
whether the requirements apply to
landfills owned by a State or Federal
government, but operated and/or leased
by a local government.
After considering these comments, the
Agency is promulgating the final rule as
proposed. MSWLFs owned or operated
by those government entities whose
debts and liabilities are the debts and
liabilities of a State or the United States
will continue to be exempted from
financial assurance requirements. In
some cases, this will include single-
purpose public authorities. In other
cases, however, the debt of single-
purpose authorities may not be
supported by the full faith and credit of
the State under that State's laws. In
those cases, it is not appropriate to
exempt the authority from financial
assurance requirements.
The Agency believes that differences
between Federal and State governments
and other governmental entities provide
sufficient rationale for treating these
entities differently with regard to the
financial assurance requirements.
Federal and State governments are
permanent and stable institutions that
exist to safeguard health andwelfare,
and they have the requisite financial
strength and incentives to cover the
costs of closure, post-closure care, and .
corrective action for known releases.
The availability of resources to Federal
and State agencies differs from the
availability of resources to local
governments. Federal and State
governments have flexibility hi their
annual budgets, which facilitates
reallocation of funds for a specific
purpose. Federal and State entities also
can access sources of financing such as
intergovernmental transfers relatively
quickly. Further, since few MSWLFs
(four percent) are owned or operated by
Federal or State agencies, exempting
these facilities will not significantly
disrupt competition in the solid waste
disposal industry.
As indicated in the preamble to the
proposed rule, the financial assurance
exemption extends to cases in which a
MSWLF is owned by a State or Federal
government entity and operated by a
private party or local government [or
operated by a State or Federal
government entity while owned
privately or by a local government). A
State or Federal owner may, of course,
require the private or local government
operator to provide financial assurance
by contractual agreement. The
exemption may also extend to a single-
purpose authority if the authority's debts
and liabilities are the debts and
liabilities of the State.
b. Applicability to Local Governments
The proposal would exempt only
Federal or State governments. All other
owners and operators, including local
governments, would be required to
provide financial assurance for closure,
post-closure care and corrective action
at MSWLFs that they own or operate.
Local governments include both general
purpose local governments (e.g.,
municipalities, counties, cities,
townships, towns, and villages) and
special purpose local governments.
Special purpose local governments,
generally designated as either public
authorities or special districts, may
perform a single function or a limited
range of functions. Both general purpose
local governments and special purpose
entities were required to provide
financial assurance under the proposed
rule.
The Agency received numerous
comments on its proposal to require
local governments to demonstrate
financial assurance. Commenters
supporting the Agency's proposal argued
that local governments may be unable to
raise .the necessary funds through their
taxing powers and that local
governments may not be able to make
long-term advance commitments of
future funds necessary to provide
adequate assurance. Commenters
argued further that because of these
limitations on the availability of funds,
all owners and operators, including local
governments, need to factor the cost of
closure and post-closure care into the
management of an MSWLF in'order to
ensure that the site is not abandoned.
Several commenters suggested that
many MSWLFs operated by local
governments could become future
Siiperfund sites if financial assurance is
not required of local governments.
Many other commenters, however,
urged the Agency to exempt some or all
local governments (including cities,
counties, and towns) from financial
assurance requirements for a variety of
reasons. Some commenters asserted that
local governments operating MSWLFs
have a direct stake in providing for the
health; welfare and protection of their
communities, and should not be
burdened with rules that interfere with f
the efficient execution of their duties.
Several commenters argued that local
governments should not be required to
demonstrate financial responsibility
because they rarely go bankrupt and in
those cases when they have gone
bankrupt, they have paid all of their
obligations eventually. Several
commenters contended that many local
governments have sources of funds that
would be available in an emergency to
cover the costs of closure, post-closure
care, and corrective action, such as
unused taxing authority, user fees,
bonds, and short-term notes, thus
making financial responsibility
requirements unnecessary.
Some commenters argued that local
governments should be exempted from
financial assurance requirements
because of the burden such .
requirements would impose. Several
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56j
.. October 9, 1981 / Rules anS Eegjalafenls 53107
commenters .stated that the cost of
demonstrating financial assurance
would cause many local governments to
abandon their solid waste .disposal
programs. They argued that ,new part
258 criteria will .increase jthe costs ^of
operation, and that financial assurance -
requirements would only compound the :
economic burden on MSWjLF owners by.
requiring up-front money or guarantees.
Other commenters indicated that
financial assurance requirements may
cause solid waste management to shift
from the public 'sector to .the private
sector If local governments choose to
contract -with private commercial
MSWUF facilities rather Jhan provide
. the amount of'assurance required for
• their .own landfills.
Finally, commenters suggested that
States should be given flexibility in
deciding whether to exempt their own
local governments from the: financial
assurance requirements.
The Agency has carefully considered
all of'the comments on this issue, ancl,
for the .reasons discussed below,
continues to believe it appropriate to
distinguish between local governments
and federal and State governments
when applying jthe financial assurance
requirements. Under today's final jnile,
therefore, local governments remain
subject to .financial .responsibility
requirements. , • '
The Agency .agrees-with commenters
who asserted that local governments
may beunable to raise sufficient funds
through taxation and that local ;
governments may not "be able to make
long-term commitments of future funds.
While several commenters contended
that local'governments -would have the
ability to raise funds in a timely manner
sufficient to cover the costs of closure,
post-closure care .and corrective .action,
these commenters did not supply the - ' •.:
Agencywithevidence that this was
generally toue f or all local governments.
While the Agency ireoognizes'that many
local governments, like Federal and
State governments, are permanent
entities that act to secure the well-being
of their citizens, there is substantial
variation among local governments in
terms 'of size, .financial 'capacity, and
functions iperformed.-It is therefore
likely that there is substantial variation
among these governments in terms of
their ability to meet their closure, post-
closure care and corrective action
obligations in a timely manner.
Exempting all local governments from
the requirements would provide
insufficient .protection -of human health
and the environment. <
„ Furthermore,, allho.ughlocal ;
governments areiinlikely to abandon
their MSWLFs even in the event.of
bankruptcy, .studies of the probability of
bankruptcy among local -governments
indicates that '{relative to Federal and
State governments) .they are generally
(1) more limited in terms of financial
resources and less flexible' in their
annual budgets, thereby maldng
reallocatioa of a substantial amount of
funds for aspecific purpose in asgiven
year more difficult; (2) less able to
obtain their traditional sources,of
financing Ie.g., lond issues,, taxes,, and
intergovernmental transfers) quickly
enough to ensure funding in a timely
manner; and J33 more prone to fiscal
emergencies than-Federal and State
governments. Msp, while localities in
bankruptcy may be a'ble to meet their ,
obligatipns over She.long term, _
obligations .such as closure and
corrective action may require 'immediate
financing to ensure adequate protection
of human 'health and the environment. In
light of fee meed to ensure that all
owners and-operators meet their
environmental obligations ,in a timely
manner, combined with the variability
among municipalities, fliue Agency
believes Ihat auniform set of applicable
requirements is necessary. Therefore,
the Agency ias decided against
allowing States to decide whether to
exempt their own local governments.
The Agency -decided not to exempt
any special category of local
governments from today's final rule
(with fee exception of small landfills
qualifying for an exemption in approved
States as discussed above). While the
Agency recognizes that local ' .
governments may vary in feeir ability to
meet the costs :of.closure, poSt-aJlosure
care, and corrective action, the Agency
is enable to .support a variance for any
type of local government Je.g,, cities,
counties). The same concerns that
prompted the Agency to include local
governments generally apply to these
special categories as well. Requiring all '
local .governments to demonstrate
financial assurance .should encourage :
appropriate advanced planning for the
costs of closure, post-closure care, and
corrective action for Icnown releases by
these entities.
The Agency -does not believe that the
requirements will generally be
burdensome to local'governments. As
discussed above, the cost of .the
financial assurance requirements are a
relatively small part .of the total cost of
compliance with today's rule. Because
the requirements will be applied to all
MSWiLF owners and operators, .
regardless .of-whether they are local.,
governments .or 'private companies, the
Agency does not'believe that the
requirements'will cause a shift from
.public to private ownership of solid.
waste management lacilMes, , ,.
The Agency does recognize the .
potenHal burden €iatfiDanc'ial '
assurance acquirements may impose JDJI
some local igovernmeiits. "Tip aniriimize
this burden, the Agency as fmalizing
several alternate medianisms.ifliat may
be used to demonstrate financial
assurance and'encourages States to
develop innovative financial
responsibility mechanisms. To further
reduce fhe potential Sburden cf these
provisions pn local governments, the
Agency iis developing a financial Jest .
designed specifically for local
governments *hat is expected to be
proposed isoon after today's rule is
promulgated :(see isectiori TJb ibelow).
The Agency currently anticipates (that
the (effective date of She financial test for
local governments wall coincide with the
effective date of the financial
responsibility provisions of this rale ;(30 .
months following .publication of today's
rule). Financially strong local .
governments that .demonstrate ihst Ithey
possess :ttte necessary fihamcial capacity
and have adequately planned to meet
their MS WUFiObliga'tionS in a timely
manner will be able to .use afinancial
test ;anfl will not be required to acquire
additional financial assurance
mechanisms. The .'specific Lcriteria of fliis
financial test for local governments and
projected estimates.of itiietesfe '"„.
availability to local sgpvernment owners
and .operators fofuse to meest today's
requirements wfll be discussed mpre -
fully in a jseparate notice of proposed
rnlemaking.
c. Applicability tolndian Tribes
Tlie preamble to the proposed rule .
rEquested (comments on 'whe'ther to
exempt Indian Tribes &om Bnaaeia;!
responsibility requirements, and
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51108 Federal Register /Vol. 56, No. 196'/Wednesday. October 9, 1991 / Rules and Regulations
waste disposal problems on
reservations are likely to be of a small
magnitude and to require less funding
than those of other MSWLFs. Other
commenters argued that with such small
populations and a high unemployment
rale, most Tribes would be unable to
meet the financial assurance
requirements.
Some commenters, however, opposed
exemption of Indian Tribes from
financial assurance requirements. These
commenters argued that Tribal land is
often leased to government and industry
for use as disposal facilities. As a result,
financial assurance for MSWLFs on
Tribal lands is as necessary as for any
other MSWLF. Another commenter
noted that Indian landfills in Arizona
are causing adverse impacts on the
environmental quality of the State and
that there is currently no mechanism to
address those problems.
The Agency has carefully considered
the commenters' concerns and has
decided not to exempt Indian Tribes
from the financial responsibility
requirements of today's rule. Section
1004 of RCRA defines "municipality" to
include Indian Tribes. The Agency is
concerned that Indian Tribes, for
reasons similar to those discussed for
municipalities above, do not have the
requisite financial strength to ensure
funding of their closure, post-closure
care and corrective action obligations.
While a number of commenters
suggested that Indian Tribes have the
financial strength to meet these
obligations, none provided data to
support an exemption from the financial
assurance requirements. The Agency
believes, therefore, that it is in the
interests of protecting human health and
the environment to require Indian Tribes
to comply with the financial assurance
requirements of today's rale. Financially
strong Indian Tribes, like financially
strong municipalities, will be able to
comply with the requirements using the
local government financial test to be
proposed in the near future.
4. Sections 258.71(5}, 258.72(b), and
25B.73(b) Scope of Coverage
a. Financial Assurance for Corrective
Action for Other Than Known Releases
The proposal would require financial
assurance for the costs of known
corrective actions to be demonstrated
only at the tune that the costs of these
activities are estimated (i.e., at the time
of remedy selection). The proposal
would not include coverage
requirements for the potential costs of
corrective action for unknown releases
and requested comments on this
decision. The Agency also requested
information concerning appropriate
methods for estimating the costs of
corrective action for other than known
releases..
EPA received several comments
supporting its decision to require
financial assurance for corrective action
for known releases only and for
deferring financial responsibility
requirements for potential future
releases. Commenters agreed that it
would be difficult to set an appropriate
level of coverage for corrective action
for future releases because it would be
difficult to predict the probability and
costs associated with a release, which
are highly dependent on location-
specific and operation-specific factors.
One commenter stated that financial
assurance requirements for other than
known releases are unnecessary
because financial assurance will be
required once the release is discovered.
Another commenter suggested that
additional financial responsibility
requirements for corrective, action would
be more appropriately established by
States because they have greater
familiarity with the site-specific
conditions within their jurisdictions.
A few commenters believed that the
scope of the financial assurance
requirements should be expanded to
include additional assurances, declaring
that EPA should prevent the possibility
that unanticipated corrective action
costs could be left unfunded by
requiring financial assurance for these
costs.
These commenters did not, however,
suggest methods for establishing levels
of coverage.
The Agency agrees with the majority
of commenters that current data are not
adequate to accurately establish
national uniform levels of coverage for
future corrective actions. Moreover, it
believes that an approach to
establishing such coverage levels which
relies upon a facility risk analysis could
require considerable time and expense
to complete, and could thereby delay the
implementation of the basic financial
assurance regulations. Therefore, the
Agency is not at this time promulgating
financial assurance requirements for
other than known releases. While the
Agency recognizes that the,possibility
exists that unanticipated corrective
action costs may go unfunded, it
believes that the requirements for
financial assurance for known
corrective action being promulgated
today will go far towards minimizing
any potential unfunded obligations. The
requirements promulgated today will
ensure that the costs of remediation of
releases are borne by the appropriate
facility owner or operator.
While the promulgation of uniform
national requirements for corrective
action for unknown releases applicable
in all States will require a substantial
amount of additional analysis, States
may wish to consider whether data are
already available in their jurisdictions to
support state-specific rulemakings.
Today's rule does not preclude States
from promulgating their own
requirements for corrective action for
other than known releases if they deem
such requirements necessary and
appropriate supplemental to today's
requirements.
b. Financial Assurance for Third-Party
Liability
In the preamble to the proposed rule,
the Agency indicated that it considered,
but chose to defer, adoption of financial
responsibility requirements for third-
party liability claims arising from off-
site personal injury or property damage.
The reasoning for this deferral was two-
fold. First, as discussed in the preamble,
the Agency had insufficient data to. set
appropriate levels of third-party liability
. coverage for MSWLFs. Second, the
Agency was concerned that owners and
operators of MSWLFs would encounter
difficulties in obtaining financial
assurance mechanisms to fulfill this
requirement. The Agency requested data
and other information regarding ,
appropriate levels of third-party liability
coverage.
While a few commenters
recommended that the financial'
assurance requirements include
requirements for third-party liability
coverage, most of the comments
supported EPA's decision to defer third-
party liability financial assurance
requirements. Commenters noted that
both the likelihood and the size of third-
party awards are variable and difficult
to predict. Due to the uncertainty of the
costs of liability claims, some
commenters said that additional time
and data would be necessary for both
the insurance industry and MSWLF
owners and operators to respond to the
need for liability coverage. Other
commenters pointed out that some
MSWLFs may never face third-party
liability claims, and suggested that the
Agency limit itself to requiring financial
assurance only for expenses that are
certain to be incurred. Another
commenter stated that it is more
appropriate for States to establish third-
party liability requirements, since third-
party liability claims are defined under
applicable State law.
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Federal Register / Vol. 58, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
51109
Upon consideration of the comments
regarding this issue, the Agency
determined that the conditions that
originally led to the decision to defer
third-party liability coverage
requirements continue to prevail. The
Agency therefore is continuing to defer
promulgation of any requirement. While
the Agency received some information
from one commenter related to third-
party liability coverage levels, this
information did not include data
relevant to setting uniform national
coverage levels, and the Agency has
been unable to gather sufficient data
from other sources.
As discussed in the preamble to the
proposal, some data concerning the
types of off-site property damage and
bodily injury that could be associated
with the operation of a MSWLF are
currently available. The inherent
limitations of these data, however, do
not provide the Agency with an
adequate basis upon which to determine
appropriate coverage levels. The
available data are largely concentrated
on only one of the hazards posed by
MSWLFs, namely, methane gas
explosions. Other hazards for which
fewer data are currently available (e.g.,
releases to ground and surface water)
could also contribute significantly to
potential liabilities faced by owners and
operators of MSWLFs and therefore
must be given consideration in the
development of third-party liability
qoverage levels. In addition, the data on
methane gas explosions did not include
the costs of damages resulting from
these accidents at MSWLFs. The
Agency, therefore, still lacks sufficient
basis to establish specific coverage
levels for MSWLFs.
The Agency's second reason for
deferring third-party liability also
continues to prevail. Insurance coverage
for MSWLFs continues to be limited.
Owners and operators of MSWLFs may
therefore encounter difficulties in
obtaining third-party liability coverage.
The Agency is currently aware of only
two insurers who actively provide
coverage to MSWLFs. While some other
insurers are entering the market,
experience in providing this type of
coverage is even more limited than
experience in providing coverage for
hazardous waste facilities. The Agency
believes, however, that such an
assurance market, whether for insurance
or another mechanism provided by a
third party, will begin to develop
following promulgation of today's final
technical criteria imposing uniform
design and operating standards that in
turn will allow insurers to beiter assess
the risks associated with MSWLFs. In
addition, such a,deferral will allow
States a period during which State-
sponsored mechanisms can be
developed to assist owners and
operators of MSWLFs in complying with
financial assurance requirements. These
State-sponsored mechanisms might then
be adopted for coverage of third-party
liability requirements. ' ,
Given that a majority of owners and
operators of MSWLFs are local
government entities, the Agency
believes that State governments could
become actively involved in the
development and sponsorship of
financial assurance mechanisms for
third-party liability or in providing -
financial assurance through various
funding schemes. Today's regulation
allows States to explore and implement
alternatives to traditional mechanisms
for compliance with closure and post-
closure care and corrective action
financial assurance requirements. These
mechanisms may then be applicable if
third-party liability coverage is required
in the future or if an approved State
wishes to require financial
responsibility for third-party liability
coverage.
5. Sections 258.71(b), 258.72(b), and ,
258.73(b) Release From Financial
Assurance Requirements
Under the proposed rule, owners-and
operators would be released from
financial assurance requirements for
closure, post-closure care, and
corrective action following State
approval of the certifications of '
completion of these activities submitted
under §§ 258.30(e), 258.31(f), and 258.58
(f) and (g). Following the receipt of the
certification from the owner or operator
verifying that closure, post-closure care,
or corrective action had been completed
in accordance with the approved plans,
the State would be required to notify the
owner or operator in writing that he no
longer was required to demonstrate
financial responsibility for these
activities. If the State had reason to
believe that the activities had not been
conducted in accordance with the>
approved plan, the State would notify
the owner or operator and include a
detailed statement of the reasons for not
releasing the owner-or operator from the
financial assurance requirements.
While the Agency did not receive
comments on the actual provisions for
release from the financial assurance
requirements,,two commenlers
contended that funds should never be
released because of the perpetual
possibility of failure. Other commenters
raised a related issue that owners or
operators should be allowed to receive
reimbursements for closure, post-closure
care or corrective action costs as they
are incurred. These commenters further
argued that particularly for owners or
operators using instruments that require
the owner or operator to set funds aside
(e.g., a trust fund), withholding the
release of such funds until all activities
have been completed would effectively
require owners and operators to provide
twice the amount of funds necessary to
meet expenses.
The Agency decided to finalize the
procedures for release from financial
assurance requirements substantially as
proposed with one change in the
procedures for release for closure
financial assurance and with minor
changes to account for the self-
implementing approach of the final rule.
Owners and operators will be released
from -financial assurance requirements
upon demonstrating compliance with the
certification requirements for closure, .'
post-closure care, 'or corrective action as
specified in §§ 258.60(h), 258.61(e), or
258.58 (f) and (g). Consistent with the
self-implementing approach of the final
rule, the final rule includes>thet , ,..-..,
requirement that owners or operators
also must notify the State that the:
required certifications are in the facility
operating record and that financial
assurance is no longer being maintained.
As a condition of being released from
closure financial-assurance, the Agency '..
is adding the additional requirement
that owners or operators must notify the
State that they have recorded the
notation on the deed to property as
required in § 258.60(i) and have included .
a copy of the notation in the facility
operating record.
In general, the Agency continues to
believe that owners and operators
should be released from financial
assurance requirements only upon
certification that closure, post-closure
care and/or corrective action activities
have been completed. Unless the owner
'or operator remains subject to financial
assurance requirements until closure,
post-closure care and/or corrective
action have been certified, the Agency
cannot be assured that funds will be
available if additional activities are
required to comply with the technical
requirements. The Agency, however,
does not believe that the potential
benefits (e.g., potential governmental
expenditures avoided) derived from
indefinite maintenance of financial
assurance sufficiently outweigh the
costs incurred by owneror operator in
maintaining such assurances.
Performance of the required activities in
conformance with the plan and
subsequent certification by a qualified
engineer of those activities upon
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51110 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
completion will minimize the probability
that additional financial assurance will
be needed.
The Agency agrees with commenters
that in cases where an owner or
operator has actually set funds aside in
a mechanism dedicated to the payment
of such costs [e.g., in a trust fund, and in
some cases, closure and post-closure
insurance), it may be desirable to allow
the owner or operator to be reimbursed
for costs of closure, post-closure care,
and corrective action activities as they
are incurred prior to final certification,
in order to minimize the financial
burden to the owner or operator.
Therefore, the rule specifically provides
for reimbursement from trust funds or
insurance policies in cases where
sufficient funds remain to cover any
remaining cost. Requests for
reimbursement must be made directly to
the trustee or the insurer. If sufficient
funds would remain in the trust to cover
remaining costs, the trustee may grant
the request (see also discussion of the
trust fund and insurance in section 7.a
below).
The final rule also requires that the
owner or operator record the notation
on the deed to the property indicating
that the property has been used as a
MSWLF and its future use is restricted
as a condition of being released from
financial assurance requirements for
closure. The Agency added this
provision to provide a financial
incentive to help ensure that the
notation is properly filed.
6, Sections 258.71(a}, 258.72(ajr and
258.73(a) Cost Estimates
The Agency proposed in §§ 258.32 (b),
(c), and (d) that the owner or operator of
each MSWLF would develop written
site-specific estimates of the costs of
conducting closure, post-closure care,
and corrective action for known
releases. These cost estimates would be
the basis for determining the amount of
financial assurance required under
§ § 258.32 (f), (g), and (h). Commenters
raised a number of issues and questions
concerning the preparation of cost
estimates.
a. Deadlines and Procedures for
Preparing Cost Estimates
The proposed rule did not include
specific procedures or deadlines for
preparing cost estimates. The
development of such requirements was
left to the States. , .
A number of commenters stated that
EPA should develop guidance tailored
specifically to estimating costs of
closure and post-closure, care of
MSVVLFs to facilitate the preparation of.
estimates and ensure more consistency.
One commenter argued that unless the
rule included more detail on preparing
cost estimates, States would use the
guidance document developed for
subtitle C facilities, which they argued is
inappropriate for MSWLFs. Two
, commenters stated that procedures and
deadlines for preparing cost estimates
are not necessary.
The Agency disagrees with
commenters who felt that the subtitle C
guidance would be inappropriate for
MSWLFs. .Cost estimating procedures
for construction and engineering
activities like those that would be
required for closure, post-closure care,
and corrective action are relatively
uniform, .and procedures developed for
estimating costs for subtitle C facilities
should be easily adopted to account for
differences between hazardous and
solid wa'ste landfills. The Agency
believes, therefore, that the guidance
documents developed for subtitle C
could provide a useful model for today's
rule.
The Agency also believes that it is
unnecessary to include specific
deadlines for preparing cost estimates in
the rule. Since cost estimates must be
prepared hi order to establish the
amount of financial assurance required,
the Agency believes that the deadline
.for obtaining financial assurance will
ensure that cost estimates will be
prepared in a timely manner. However,
consistent with the self-implementing
approach of the final rule, the Agency
has added to the final rule a requirement
that owners or operators must notify the
State Director that the cost estimates
have been placed in the operating
record.
b. Third-Party Costs
The proposed rule would require cost
estimates to account for the costs, in
current dollars, of hiring a third party to
conduct the activities described in the
closure and post-closure plans and in
the corrective action program as
specified in §§ 258.30, 258.31, and 258.58.
The Agency received a-number of '
comments on the requirement that cost
estimates be based on the cost of hiring
a third party to perform the required
activities. While one commenter
expressed support for this provision as
proposed, several argued that using
third-party costs for cost estimates
would be burdensome and unnecessary.
Some commenters stated that local
governments, in particular, should be
able to base cost estimates on the cost
of performing the work themselves
because they maintain a broad range of
in-house technical and engineering .
capabilities, which could be used to
perform closure, post-closure care, and
corrective action. They also contended
that unlike private operators, even if a
local government were to go bankrupt, it
could hot escape its obligations and
would eventually use its own personnel
to conduct closure and post-closure
care.
After considering these comments, the
Agency continues to believe that it is
appropriate to base cost estimates on
the costs of hiring a third party to
conduct closure, post-closure care and
corrective action. This provision ensures
that adequate funds will be available to
hire a third party to cany out the
necessary activities in the event that the
owner or operator declares bankruptcy
or does not have all of the technical
expertise necessary. In addition, the
Agency does not agree that local
governments will always be able to use
their own personnel to conduct closure
and post-closure care. For example, in
the event of bankruptcy or other
financial hardship, a local government
may be required to reduce the number of
local government employees, including
employees managing the local
government's MSWLF and other .staff
who might be capable of conducting
closure, post-closure care or corrective.
action activities. The local government
would, under such circumstances, be
forced to obtain the services of third-
parties to carry out closure, post-closure
care, and corrective action activities.
Furthermore, the requirement to base
cost estimates on third-party costs will
not impose a significant burden on an
owner or operator. The Agency has
studied the differences between first
and third-party costs for closure in the
context of Subtitle C and has found that
the costs are not significantly different.
For example, the cost of hiring a third
party to close a landfill that handles
2,000 tons of waste per year is not
significantly greater (less than ten
percent) than the costs that would be
incurred if the owner or operator of the
landfill performed the closure activities,,
Because the activities that would be
performed for closure, post-closure care
and corrective action would be similar
for all MSWLFs, the Agency believes
that third-party costs will not be
significantly higher for these units as ,
well.
c. Sections 258.71(a)(l), 258.72(a)(l), and
258.73(a) Scope of Costs To Be
Covered in Cost Estimates
The propbsed rule'would require
closure and post-closure cost estimates
to be based on the cost of closing the
MSWLF at the point in the landfill's
active life when the extent and manner
of its operation would make closure and
-------
/Rules and Regulations 51111
post-closure care [as described in the
closure and post-closure plans) the most
expensive. For example, if an owner or
operator operates the MSWLF on .a cell-
by-cell basis, the estimate should
account for closing the maximum
number of cells open at any one time. ,
Several commenters objected to
calculating closure and post-closure cost
estimates based on the most expensive
point of performing these activities,
arguing that the requirement would be
burdensome.. One commenter noted that
the requirement does not account for the
fact that closure of a MSWLF is an
ongoing process that is part of daily
operation. This commenter argued that
because the actual area pf a landfill
increases quickly for a short time after a
landfill is opened and decreases 'soon
afterwards as partial closure is begun,
basing cost estimates on the maximum
cost of closure prior to the start of any '
partial closure activities, would result in
closure cost estimates that will quickly
become excessive.
The Agency considered the
commenter's concerns and is clarifying
in the final rule its intent regarding the
scope of cost to be included in cost
estimates. The Agency continues to
believe that the cost estimates must be
high enough to ensure that adequate
funds always are available to conduct
the required activities whenever they
are required, including premature
closures. However, the Agency agrees
with commenters that the cost estimates
need not include the costs of closing
landfill phases that have already
undergone partial closure. Therefore, the
Agency is adding language to the final
rule to clarify that the closure cost .
estimate must account for the most '.
expensive costs of closing the maximum
area pf the MSWLF that would ever
need to be closed at any one time.
For example, an owner or operator of
a MSWLF, which is constructed using a
cellular design, may choose to open only
one cell of the landfill at a timet close
the cell completely (i.e., with installation
of a final cap) once it is filled, and only
then to open a new cell. In this case, the
cost estimate would include the costs of
closing one cell. Therefore, owners and
operators of facilities that close units as
they are filled (i.e., conduct partial
closures) may be allowed to
demonstrate less financial assurance
than those that close all units
simultaneously because the maximum
costs of closure at any time will be less
than if the entire MSWLF was closed .
simultaneously. ......
d. Sections 258.71(a}(2), 258.72(a)(2), and
258.73(a)(l) Adjustment of Cost
Estimates for Inflation
The proposed rule would require the
closure, post-closure, and corrective
action cost estimates to be adjusted
annually for inflation until the entire
landfill had been closed to ensure that
over time, cost estimates would continue
to reflect the actual costs of performing
closure, postrdosure care or corrective
action. Corrective action cost estimates
were to be updated for inflation until the
end of the corrective action period even
if the corrective action extended beyond
closure of the MSWLF. The proposed
rule left to the States the responsibility
for establishing procedures for updating
cost estimates. The proposed rule also
requested comments on the desirability
of requiring annual adjustments of the •
post-closure cost estimates during the
post-closure care period.
A number of commenters supported
the proposal to require annual inflation
adjustments to the post-closure care
cost estimate only until closure, while a
few commenters supported adding a
provision that would require annual
inflation adjustments until the end of the
post-closure care period. Some •
commenters suggested periodic (e. g.,
every three or five years) rather than
annual updates to the cost estimates,
arguing that the expense involved in the
updating procedure and the likelihood
that costs would not be substantially
changed by inflation made annual
updates inappropriate and unnecessary.
Upon consideration of the public
comments, the Agency finalized the
requirements as proposed with a change
to the requirements for post-closure cost
estimates discussed below. The Agency
continues to believe that the.
uncertainties inherent in inflation and
interest rates make an annual cost
update highly desirable. If the added
costs due to inflation are not fully
accounted for in annually updated cost -
estimates, adequate funds may not be
available when needed. Moreover, the
Agency does not believe that updating
cost estimates to account for inflation
will be difficult or costly. The Agency
suggests the use of inflation factors that
are readily available, to owners and
operators (e. g., the Implicit Price
Deflator for Gross National Product as
published in the "Survey of Current
Business," a Department of Commerce
publication) or specify other inflation
factors that must be used to adjust the
estimates. Owners and operators may
wish to refer to the provisions in 40 CFR
264.142 and 264.144 and the
accompanying guidance.materials when
making the updates. The Agency has no
evidence" from its experience with the
Subtitle C program that annual updates
for inflation have been costly or
burdensome, or that they have caused
implementation problems.
The Agency agrees with commenters
who suggested that post-closure cost
estimates should be updated until.the
end'of the post-closure care period, and
consequently, the Agency has decided
to impose such a requirement in today's
rule. Following closure, the owner or
operator must continue to update the
post-closure cost estimate for inflation
for the duration of the post-closure care ,
period. While the Agency recognizes
that on certain rare occasions, an owner .
or operator may not be available (e. g.,
the company operating the landfill may
ho longer be in business following
closure) to update the estimates, thus
making implementation difficult; the
Agency believes that in most cases, an,
owner or operator will be available. The
majority of MSWLFs are operated by
local governments. These local •. ' '•' • •
governments are unlikely to disappear
following closure of their landfills '
because they exist to perform a number
of other functions. The Agency does not
believe that this change,will prove •
burdensome. / ,
e. Sections 258.71(a}(3), 258.72(a)(3), and
258.73(a)(2) Adjustment of Cost
Estimates Due to Plan or Facility
Changes ' '
The proposed rule would require the ,
owner or operator to increase the cost
estimates for closure and post-closure ,
care whenever changes to the closure
and post-closure plans or changes at the
facility (e.g., increases in design
capacity, increases in the maximum
area open, more extensive monitoring ^
requirements) would cause the
estimated cost to increase (§§258.32
(b)(3), and (c)(3)). Consistent with the
October 24,1986, proposed Subtitle C
rule requiring financial assurance for
corrective action, the proposal specified
that an owner or operator would be
required to increase a corrective action
cost estimate if, at any time during the
corrective action period, a change in the
corrective action program or in facility
conditions would cause corrective
action costs to exceed the cost estimate
(§ 258.32(d) (2)). Whenever a cost
estimate is increased, the owner or
operator would increase the level of
financial assurance required under
sections §§258.32 (f), (g), and (h).
The proposed rule in § § 258.32 (b)(4)
and (c)(4) would allow the owner or
operator to request a reduction in the
amount of the cost estimate if the owner
or operator could demonstrate that
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51112 Federal Register / Vol. 58. No. 196 / Wednesday, October 9, 1991 /Rules and Regulations
changes in facility conditions would
result in a decrease in the maximum
costs of closure (e.g., partial closure of
the landfill that reduces the maximum
area of the landfill that ever needs to be
closed), or post-closure care (e.g., less
maintenance is required during the later
years of the pest-closure care period).
Cost estimates for corrective action
could be reduced if the owner or
operator could demonstrate that the
estimate exceeds the maximum
remaining costs of corrective action
(§ 258.32(d)(3)). The Agency did not
propose procedures or deadlines for
adjusting cost estimates, but did request
comments on whether the revised
criteria should include such procedures.
The Agency received no comments on
the requirement that cost estimates be
adjusted to account for changes in
facility operation or changes in the
facility closure, post-closure care or
corrective action plans. Consistent with
the self-implementing approach, of
today's rule, the Agency is finalising the
requirements for adjustments to cost
estimates with certain procedural
changes. If the current cost estimate
exceeds the maximum remaining costs
of closure, post-closure care or
corrective action, whichever is
applicable, the owner or operator may
decrease the cost estimate if he notifies
the State of the decrease in the cost
estimate and places a justification for
the decrease in the facility operating
record.
f. Section 258.72(a) Calculation of Post-
Closure Costs
The proposed rule would require post-
closure care activities to be carried out
over a two-phase period. Phase I would
last 30 years and the length of Phase n
would be established by the States. The
proposed rule would require the post-
closure cost estimate for each phase to
be based directly on the activities
described in the .approved post-closure
care plan required under § 258.31(c), and
to account for the post-closure care
costs of the entire landfill. The estimate
for each phase would be derived by
multiplying the annual costs (in current
dollars) of post-closure care activities by
the number of years of care required in
that phase. Because not all post-closure
care activities are conducted on an
annual basis (e.g., cap replacement or
monitoring well replacement may only
be required periodically), the preamble
to the proposal clarified that the total
post-closure cost estimate should
include these periodic costs as well as
the annual costs.
Several commentcrs were concerned
with the duration of the post-closure
care financial assurance requirements.
Some commenters believed that
financial assurance for the entire 30
year Phase-I post-closure period was
unnecessary. Others suggested that the
cost of financial assurance for the entire
30-year period would place an excessive
burden on owners and operators.
Suggestions for alternative periods
included five and ten years and the
number of years of operating Me of the
facility remaining on the effective date
of the regulations. Another commenter
said that the costs of post-closure
maintenance decline as a closed landfill
stabilizes, and that the owner or
operator should "be allowed to take this
into account when making his post-
closure cost estimate.
The Agency believes that to fulfill the
goals of the financial assurance
requirements, the total estimated costs
of post-closure cars must be
demonstrated. Requiring financial
assurance for only five to ten years or
for the number of years remaining in the
facility's operating life would not ensure
that funds are available to complete
post-closure care in the event that the
owner or operator is unable or unwilling
to do so. As discussed in Appendix F of
the preamble, the proposed two-phased
post-closure care period has been
eliminated in the final rule in favor of
one 30-year period -with the option
available, in approved States, to reduce
or increase the length of the period as
necessary to protect human health and
the environment. For most owners and
operators, therefore, financial assurance
will only be required for 30 years of
post-closure care. In approved States,
where State-specific or site-specific
factors justify a reduction in the 30-year
period, owners and operators will be
required to provide financial assurance
for the reduced period only. The Agency
does not believe that obtaining financial
responsibility for 30 years of post-
closure care will impose a significant
additional burden on owners and
operators. Many States already require
some financial assurance for post-
closure care; therefore, MSWLFs in
these States should already be
demonstrating financial assurance for
the costs of post-closure activities.
The Agency agrees with the
commenter that in some cases the costs
of post-closure care maintenance may
decline as the closed landfill stabilizes.
The Agency has always intended that
the post-closure cost estimate account
for changes in costs over the post- -
closure care period. In its guidance on
preparing post-closure cost estimates for
hazardous waste facilities,_the Agency
staled that the estimates should include
costs required annually and costs that
will occur less frequently during the
post-closure care period (RCRA
Guidance Manual for subpart G Closure
and Post-Closure Care Standards and
subpart H Cost Estimating
Requirements, OSWER Policy Directive
#9476.00-5, January 1987, pp. 4-7).
Consistent with this intent, today's final
rule requires that the post-closure care
cost estimate account for the total costs
of post-closure care, including both
those costs that will be incurred
annually and those that occur only
periodically. This change will allow
owners and operators to prepare cost
estimates that reflect any costs of post-
closure care that decline over time. If
the owner or operator can demonstrate
hi the post-closure plan that the level of
maintenance activities required will
decline over time, then the
corresponding cost estimate can reflect
the costs of reduced care in later years.
Similarly, if the post-closure plan is
revised during the post-closure care
period because less extensive
maintenance is required, the cost
estimate may also be revised. The cost
estimate also may be revised during the
post-closure care period to reflect that
fewer years of post-closure care remain.
However, in considering reductions to
the cost estimate, it is important to
consider carefully potential future costs
such as ground-water monitoring well
replacement costs or extensive cover
repairs that would not be required on an
annual basis.
g. Section 258.73(a) Corrective Action
Cost Estimate
The Agency proposed that a
corrective action cost estimate be
prepared once a release has been
detected and the owner or operator is
required'to undertake corrective action.
This estimate "would be calculated by
multiplying the annual costs of
corrective action by the number of years
required to complete the corrective
action program. The owner or operator
would then demonstrate financial
assurance for the amount of the
corrective action cost estimate.
The Agency received a number of
comments on corrective action cost
* estimates and financial assurance
requirements. Some commenters staled
that the proposed financial assurance
requirements for corrective action were
too stringent and that the amount of the
cost estimate should be reduced by
reducing the period for which financial
assurance for corrective action must be
demonstrated. One commenter
suggested-that the requirements should
explicitly state that assured funds for
-------
/Federal "Register / ¥foL 58, Mo. I9'6',f Wednesday, ^ctober 9, 1991 / vRules -aM jRegulafems 51313
corrective adtionmust he.distinct:fojQm
other assured funds. "
be inappropriate Ito estimate fcorredt'ive
action ,coSts\duriiig-theplannifrgr&'tage*o'f
a corrective .'action because 'estimating
remediation jGosfts is jposstblefOrilyiaSter
correctiveacfionrremedies have -been
specified. -Another .commenter-noted
that 'the ipropoBedapprOach to
developing the corrective adtion was too
complicated and;suggested51iatM'would
be-.simpleraiid more accurate to /base
coBtiesfiniates on the projected real scost
of ahe action. 4
The Agency considered the i '
commenters suggestions and 'is
fiWlizing the cost .estimating "
requirement (for 'financial assurance lor
conrec'tiwe ;action ;with tone change
discussed below. kThe Agency 'believes It
is necessary flia't 'the «costrestima'te'
reflect the total :costs tha'twlll be
incurred for the ;entire -corrective action
periodamorderto adequately protect
human ihealthiand the Bnvjronmeriit.
Reducing the period, Of time tovjer which '
the costtestima'te is ^calculated wOw'ld.Bot
, provide adequate assurance ;of
corrective: action costs iinthe event that
thenwner orsoperator 3s unable or
unwilling to continue to finance
corrective action. '(If a trust j&mdjs used
to demcaslmte .financial .assurance,
payments^willliBimade intoifhe toist
.over tfap^lrstJiaff of |he .correeSree
action^Mojd itotcovertthe, costs of ithe
sepona!half. Adequate .aissurancefe
provided 'because ;aetual,!funids are 'being
pl'aced3ntthe3taus.t&ndito ensurejlihat
future (Corrective .actioaactivif ies fwill ibe
detail an section;7/a ibelpiv j "jThe Agency
does, howevEr, agree 3hat it is
inappropriiate, in most .cases, to 'develop
corrective ;ac!tion.icoB't're8iimates prior tp
seledtion iof ithe aremedy.. iSection ;258;7;4
of 'today^s rale requires -thai financial \
assurance,be)established"wtthin'a20
days afterstheiemedy is selected. Ihis
should provide jadequate Mme for
owtners.rand 0p,eratoralto:dev.e'lop;a;CD£it
estimate based Bimtheseleptedacemedy
and demon^traLteKaanciaifassuraiice.
The Agency agrees with the comment ,
that 'financial assurance for Eorreiitis/B
action should beidis'fhititJfrDma'hatjfar
owners and .operators maysEhaoseto
establish,'jRimnEialsffssuranceu8'iB;g1a
single financ'ial;mechsHism;foi,Bame
combinationtoffClDBUEe,^post-jdlas,iiie
:care.?and corcectiye iaction, towneissand
operators should distinguish Iflie, amount
of funds:aBBurediforTeach/actLvi:ty;pnder
a given jfinanciakassurBnceimechaiiism. .
While explicitly'irequiredj'by-theajue,
thisJissneEeBBary'toiensureJhattthe .
amount-Df fends iassucetl is sufficient ito
coirer She .posts -of jsach.Bciraity when
neeflB!$,;rncompliance withJhe
performaime'.criteria {(;§ :258:74(ll)s).
The Agenqysalso agrees ithat the
correoSve action cp.stfes.tiniate should . ,
be basedionithe-actual «osts-Bflhe
action and is jfinalizing ;the rule |to
reguire ihaitithe 'corrective -action-cost
estimate account for-the total casts estimates.for'Closiirfi,
post-closure;care, sandicorrective action
for knownjBleases-Htrthelandfill.iintil
the owner .or operator has 'been released
from financial assurance jfar that
activity under §,§ 258.32,(fj,{g),;and (h).
Commeriters Bugges'ted several,
additional requiremerits concerning !the
.xeview of cost'estimates. One • , ;
commeriter suggested that cost :
estimates should 'be available for public
review, -and'that it-would be diffieiilt'for
thepub'Hcto review .costaestinia'tes at
the'landfill. Another commenter
suggested thatSta'tes.should be
responsible fox-reviewing closuTe.ixJs't-
closure care 'and correc'tLve action -cost
estimates, -while other •commenters
stated tha't EPA shoiildaetain-that
responsitiility. -
Consisteint with'fee'self-implementing
approach of today's BnalTuIe,'the .
Agency !is BnaBzing ;a-somewhat
amendeiii !recordkeep:ing:Jand ^review
requiremen'ts.'Onder. the final'rule, '
owners andfoperatorsarearequired to
noti% ithe State -Director Jthat ithe .cost
estimates hasreJbeerijfiled in ihe :
operaStingirecordiOf the fecflity. .As - - •"•.-'
..required .wider § ;258,!29Eb^of;today5s
rufle,idiWnersMr-opeE^torsialso;must -.': -.-'
furnish these estimates upori^equegtfor
make them available ia'tiSH'ir
times for, inspetifionibysthe State .
Director. ?OncejtheState -is inipossession
of ;such Tecords, ithe ;public:may obtain
access to thesesrecoidslthrough State
Freedomjof ilriformation proceedings.
The Agencytoelevesstha'tlthese
provisions will-provide 'sufficient •
estimate. 'iChe final rule does not require
State ireviewj'df 'Gost.estimates consistent
with the •self-implementing ana'ture Of the
rule. " ,
i. Dwners and -Operators With Multiple
Facilities
Th«iproposed. rule would require
owners and 'operators to 'base -the .
amount >ef financial "assurance srequired
onfacflfty-spec}ficcost^estimates.3f •' : •
owners and.pperators owhTmUltlple
facilities, the amourit-'of '-financial
assurance would'be.'equalto the sum-of
all ••cost -estimates at 'eadhfecflity.
?Two .commeriters 'expressed concern
about'fheeffectfofTequiring'Cumulative
coverage -of miilfiple facilities managed
by '-the isame 'owner or 'operator. One
commenter 'staled lhat the Agency
should avoid making -the assumption
thatiin;cases where multiple facilities
are 'owned by •one entity, all 'facilities
will beTeqiiiredto:cTose,'at!the same
time. This eommenter suggested •; fliat 'the
Agency consider an actuarial -approadh
tha't^wOifldteflcemtoiaccount'fhe
relatively ;small;proT}abHi'ty'{ha;t all
facilities-will closeiOrTequire corrective
action at {the -same 'time, anola'Uowf or
cost 'estimates 'that do not-accourit for
the total costs of closing afl facilities
simultaneously. .Another 5commenter :
suggested thatisubtitle >I; requirements
for financial responsibility for
underground-storage tanks'would
provide a modelfor'thisayperof :
approach-iCSubtiileXrequnres loomerage
of thkd-pBtrJtyiliability and:on-:site
cleanup;costB;resulting3EompoteKCial
future iBleaBes;:from:pe*troleum .'.
underground Btorage |tanks.;Einancia;l
assurance levels aresetjfor .-different
classes of facilities ;based:ontype;of
opBratipn.andBumberiof -tanks jo.wned •
or operatsdj) _- .
The Agency /.considered ithe
commen'ter? iConcerns, ^bTitas
the rale ias.prqposed. -If !owjnersDperators?of facilities .
regufetedtHiderimultipieiprograms , .
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51114 Federal Register / Vol. 56, No. 196 / Wednesday, October 9,. 1991 / Rules and Regulations
should be exempt from the general
requirement to provide financial
assurance for the total costs of closing
all of their facilities simultaneously has
implications for the financial
responsibility programs under subtitles
C, D, and I, and as such, goes
substantially beyond the scope of
today's rulemaking. Therefore, further
study of the issue in the context of all
applicable RCRA programs is necessary
before exempting owners or operators of
multiple facilities from these
requirements.
The Agency believes that the subtitle I
approach for setting assurance levels
would be inappropriate for MSWLFs.
The costs of potential future releases
from tanks requiring assurance under
subtitle I are costs that may or may not
be incurred by the owner or operator,
while the costs of closure, post-closure'
care, and corrective action for known
releases subject to financial assurance
under part 258 are certain to be incurred.
The greater certainty of these costs
makes them difficult to aggregate in a
manner similar to the subtitle I approach
while maintaining adequate protection
of human health and the environment
and therefore justifies the more stringent
requirements. In addition, under subtitle
I, the amount of financial assurance
required is uniform for all tanks owned
or operated by a single entity. This also
serves to facilitate aggregation of costs
Jn a manner that would be difficult and
inappropriate for MSWLFs, where
closure, post-closure care and corrective
action costs vary among the facilities of
one owner or operator.
7. Section 258.74 Performance
Standard for Financial Assurance
a. Performance Standard Approach
The proposed rule would not specify
the types of financial assurance
mechanisms allowed. Instead, the
proposal specified in § 258.32(e] a
performance standard for a financial
assurance program that must be
satisfied to demonstrate compliance
with the financial assurance
requirements under §§ 258.32 [f), (g), and
(h). The performance standard was
designed to ensure that mechanisms
allowed by the States (e.g., trust funds,
letters of credit, State Funds, etc.] would
satisfy the overall goals of financial
assurance.
As proposed, the performance
standard would permit States to
authorize use of financial mechanisms
that met five criteria: (1) Ensure that the
amount of funds assured is sufficient to
cover the costs of closure, post-closure
care, and corrective action for known
releases when needed; [2] ensure that
funds will be available in a timely
fashion when needed; (3) guarantee the
availability of the required amount of
coverage from the effective date of these
requirements or prior to the initial
receipt of solid waste, whichever is .
later, until the owner or operator is
released from financial assurance
requirements under §§ 253.32 (f), (g), (h);
(4) provide' flexibility to the owner or
operator for demonstrating compliance
with the financial assurance
requirements; and (5) be legally valid,
binding and enforceable under State and
Federal law.
The preamble to the proposed rule
noted that the financial assurance
mechanisms currently authorized under
subtitles C and I, if properly drafted,
would satisfy these performance
criteria. The Agency requested
comments on the proposed financial
assurance performance standard,
including the use of a performance
standard in lieu of specifying acceptable
mechanisms.
A number of cdmmenters agreed with
EPA's decision not to specify the types
of financial assurance mechanisms that
would be allowed. These cqmmenters
noted that, the variability in State
regulation of the banking and insurance
industries would make specification of
financial assurance mechanisms
difficult to develop at the national level.
Several other commenters stated that
the financial assurance performance
standards, as proposed, represent the
minimum standards that should be
required of MSWLF owners and
operators in all States.
Many other commenters expressed
concern that the performance standard
lacked sufficient detail to guide States in
the development and implementation of
the financial assurance requirements
with any consistency among States.
Several commenters urged the Agency
to require States to allow the use of all
financial assurance mechanisms
authorized under subtitle C. Specifically,
many commenters argued that if
interpreted strictly, EPA's performance
standard requiring funds to be available
from the effective date of the regulations
or prior to the initial receipt of solid
waste, whichever is later, could be
interpreted to preclude a trust fund with
a pay-in period, which is allowable
under subtitle C. These commenters
stated that fully funded trusts are not
affordable, and other mechanisms are
not available to many local governments
and small businesses. Therefore, they
argued, if trust funds with pay-in periods
are not allowed, many landfills could be
forced to close.
Other commenters requested
clarification of whether, the subtitle C
financial test "multiples" requirement-^-
i.e.., the owner or operator must
demonstrate tangible net worth and
working capital equal to six times the
financial responsibility obligations
assured—would apply to MSWLF
owners and operators. EPA was urged
either to eliminate the requirement or to
apply it to issuers of financial
instruments (e. g., banks, insurance
companies] to ensure that these issuers
of third-party mechanisms are judged on
the same basis as owners and operators
using the financial test.
The Agency also received comments
expressing concern over the stability of
institutions, such as banks and insurers,
issuing financial assurance instruments.
One commenter recommended that only
cash, surety bonds, or certificates of
deposit be allowed for demonstrating
financial responsibility for corrective
action. This commenter argued that
unlike closure or post-closure care, the
costs of corrective action are likely to
force many owners and operators out of
business, thereby necessitating the use
of assurance mechanisms that are not
linked to a company's future financial
health.
The Agency agrees with commenters
that the performance standard, as
proposed, did not provide sufficient
guidance to ensure that financial
mechanisms obtained in compliance
with the rule would be adequate. This
lack of specificity in the proposed
performance criteria could have resulted
in significant inconsistencies among
State programs. The Agency, therefore,
has adopted a modified performance
standard approach to financial . /
assurance in the final rule. This
approach consists of a revised set of
performance standards and specified
financial mechanisms that may be used
to demonstrate financial assurance. The
rule also specifies minimum provisions
of each mechanism that must be
satisfied to be considered an acceptable
mechanism, including minimum
qualifications for providers of
assurance. ,
The revised performance criteria in .;
today's rule are identical to those
described in the proposed rule
(renumbered in the final rule as
§ 258.74(1)], with the exception of the .
criterion in proposed § 258.32(e)(4)
specifying that States consider :
flexibility to the owner or operator when
developing financial assurance
requirements. This criterion has been
deleted from the final rule because it
was redundant with the discussion of
State approved mechanisms. "While the
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-Register '/ ¥vl 56, ,No. 198 ,/ -Wednesday. Qctoier.-9j, 3.991 / Rules and peguJatlons 51115
Agency .continues to .believe thata
.performance standard-based approach
is.mosi appropriatelo allow States
su'ffic'ient'flexibility to select and lailor
theirifinancial assurance programs to
allow asjmany options .for,compliance
as possible/the performance criteria
should ensure imat all allowable „,
financial'.medhanisms will provide for
adeguatefinancial assurance.
All-o'f-the jnechanismB currently
allowed miderrsubtitle C are .'authorized ,
to 'be 'used 'to comply *with the financial
assurance Tequirementsin.today',s rule. ,
In particular, the Agency specifically
allows 'the 'use of gradually-funded trust
funds to'demonstrate financial
.assurance for'the-costs of closure, •post-
closure care,, and -corrective action. The
Agency 'expects a majority -Of approved
States will 'include these 'specified
mechanisms, 'together -with •Other
medhariisms-as appropriate, in their list
of authored-compliance options.
In-addition to the'instruments :
specified in the performance standard,
EPA Is aoiu-renlly Devaluating, andswiir
consequently propose -revisions to, .the
subtitle C -corporate financial test;as"
partfD'f;a'.8epaijate?rulemaking.'The
Agency would 'anticipate proposing ;at
the same time,conforming changes to ithe
past'258 Jfinancial responsibility
performance standard to -allow this
revised 'corporate test to -foe .used:as "3
compliance roptionSor idemonBtraitjing
financialiresponsibiiityiforMSWlJEs.
These changes itolhe corporate financial
test would'.beqpTbposediOn a timeframe '
similar itoihe local igoverrmerrt'financial,
test.
•With respect to financial/assurance
for corrective:action, the,Agency
recognizes thatthe cost,and duration,of
a corrective action are .likely to differ
from the icost and duration of closure •
and posfeelosnretcare., and that
allowable 'mechanisms for assuring
closure and postrolosure care may
conseguently-differ from those
appropriate for assuring (corrective
action. The discussion trf allowable
mechanisms below tnotes where today's
rule accounts for .such variations to
address corrective-action ;(e;g,, .the
length of the trust"fund pay-in period;
the acceptability of insurance^.
TJie provisions,of today's .rule,are
intended to ensure the reliability,of each
mechanism jrelative to the iOwerall
perfoEmance standard. Given the
minimum requirements .specified, :fhe
AgenqyTjeliev.es that it is ,not .necessary
to limit .allowable mechanisms, -as .some
commenters .suggested, to cash, ^surety
bonds jor ceitificates 'df.deposit. The
Agency tailored these .minimum
qualffications to -flie parflcular
rharacteristips andJindustryjpracticesvof .
the providers of the Juiancial
mechanisms le.g,, sureties,, Ibanks,
insurers, etc.l in sorder to .ensure Jhe.. .
ef f ectiveneas of .the jmechanism .as Sv.ell
as the stability of the provider. The
Agency ielievesithis;approachis
prefeiable to applying .the same criteria
to all tripes sof providers. In particular,,
the.Agency'beHevfislt would 'be
rriappropriate toareguire .allprpv'iders of
financial assurance medhariisnTis to
sa'fisfy the subtitle C financial test,
which was designed to assess apriva;t6
corporatiori's ability to meet certain
costs, not to evaluate ifhe ability of a
financial .service's firm to-carry outfits
.business. , • •
. Cornmenters also urged the Agency to
encourage theiStatestodevBlqp
alternative financial'assurance .
mechanisms. They argued'that EPA
shouldmakethe States^aware of the
needto'be creative and expansive when
deyisinglinancial Tesponsibillty
mechanisms, airdshouldiprovide
additional guidance to the'States.
Several 'commenters urged the. Agency
to encourage States to establish'State
funds as an •alternative Tnechanism,
arguing that State funds/are the -only
alternative availa'brle *to landfill owners
with limited resources.
The Agency agrees with commenters
that alternative financial assurance
mechanisms should be explored. To that
end, today's rule permits the use, in
States ?with -approved programs,
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51116 Federal Register / Vol. 56. No. 196 / Wednesday, October 9, 1991 / Rules and Regulations
the trust to be gradually funded over the
expected life of the facility and specifies
how the value of the trust must be built
up. This build-up would be
accomplished through annual payments
Into the fund in a manner similar to that
required under subtitle C. The amount of
these payments, in the case of a trust
fund for closure or post-closure care, is
to be calculated using the following
formula:
CE-CV
where CE is the current closure or post-
closure cost estimate [updated for
inflation or other changes), CV is the
current value of the trust fund (i.e., the
value of the funds already paid into the
trust), and Y is the number of years
remaining in the pay-in period. The
maximum pay-in period is the life of the
facility permit, if applicable, or the
remaining number of years of facility
operating life. If the amount of the
closure or post-closure cost estimate
changes, the amount of the annual
payments into the trust fund should be
recalculated using the formula described
above.
The requirements for a corrective
action trust fund differ somewhat from
the requirements for a closure or post-
closure care trust fund for two reasons:
(1) The size and duration of corrective
action costs are significantly greater;
and (2) corrective action financial
assurance is required only upon the
detection of a release while closure and
post-closure financial assurance are
required prior to the activities being
undertaken. Thus, to be structured like
the trust fund for closure and post-
closure care, which ensures that the
trust is fully funded by the time that the
funds are needed (i.e., by the time that
the facility closes), a trust fund for
corrective action would need to be fully
funded as soon as corrective action is
triggered, which would pose an undue
burden to nearly all owners or
operators. To make the corrective action
trust fund available to greater numbers
of owners and operators while ensuring
that funds are available to complete
corrective action, the Agency is allowing
an owner or operator to fund the trust
gradually over the first half of the
corrective action period in an amount
that would ensure sufficient funds to
cover the costs of corrective action
incurred during the second half of the
corrective action period.
The corrective action trust fund would
therefore operate as follows. First, the
maximum allowable pay-in period for a
corrective action trust fund is one-half of
the length of the corrective action
period. Second, the required balance in
a trust fund for corrective action at the
end of the corrective action pay-in
period must be sufficient to cover the
remaining corrective action costs after
the end of the pay-in period (i.e., the
costs of corrective action to be incurred
during the second half of the corrective
action period). For example, if corrective
action will take place over a ten-year
period, payments into the trust fund
would start at the beginning of the
period and end in the fifth year. At the
end of the fifth year, the amount of
money in the trust fund would have to
be sufficient to cover the corrective
action costs estimated for the remaining
five years of the corrective action
period.
The trust fund for corrective action
would be built up in a manner to that
described for closure and post-closure
care trust funds, with changes to
accommodate the different pay-in period
for trust funds for corrective action (as
discussed above). The specific amount
of the annual payments is to be
calculated using the following formula:
k RB-CV
where KB is the most recent estimate of
the required trust fund balance for
corrective action (i.e., the total costs to
be incurred during the second half of the
corrective action period), CV is the
current value of the trust fund, and Y is
.the number of years remaining in the
pay-in period.
In developing this pay-in formula the
Agency accounted for the size and
duration of corrective action costs and
the resultant concern that more stringent
financial assurance requirements could
induce bankruptcies among facility
owners and operators, thus increasing
the number of unfunded corrective
actions. Particularly since corrective
action costs for known releases will be
incurred concurrently with the costs of
providing financial assurance for
corrective action, the Agency is
concerned that the impact of these two
sets of simultaneous costs may increase
the number of bankruptcies and the
amount of unfunded corrective actions
among small owners or operators. Such
an outcome would defeat the purpose of
more stringent requirements, which is to
assure that all corrective action costs
will be paid by owners or operators.
In addition, the financial assurance
requirements for closure and post-
closure care are designed to provide
assurance before the beginning of
closure 'or post-closure care; thus
financial assurance is being provided for
a future obligation.
. Section 258.74(a}(5) of the final rule
specifies that the initial payment into a
closure or post-closure care trust fund
•must be made prior to the initial receipt
of waste or the effective date of the rule,
whichever is later. The initial payment
into a corrective action trust fund must
be made no later than 120 days after the
corrective action remedy has been
selected. :
In order to ensure that adequate funds
will be available for closure, post-
closure care, and corrective action if an
owner or operator switches from one of
the other third-party mechanisms to a
trust fund, today's final rule includes
specific requirements for the initial
payment into the trust in the event that
an owner or operator is switching
mechanisms. Today's rule requires that,
if the owner or operator establishes a
trust fund after having used one or more
alternate mechanisms, the initial
payment into the trust fund must be at
least the amount that the fund would
contain if the trust fund were
established initially and annual
payments were made according to the
specifications of the rule. For example, if
an owner or operator switching to a
trust fund had been demonstrating
financial assurance for ten years, he
would need to calculate what the
balance of a trust fund would have
been, had he established one ten years
previously.
Because the trust fund involves setting
aside an owner or operator's actual
funds (rather than obtaining a third- -
party guarantee that funds will be
available when needed), the rule
provides for reimbursement to the
owner of operator for expenditures for
closure, post-closure care, and
corrective action as long as sufficient
funds remain in the trust to cover the
remaining costs. Under this rule, funds
are released by the trustee in cases
where sufficient funds remain in the
trust to cover remaining closure, post-
closure care and corrective action costs
if the owner or operator documents and
justifies the reimbursement and places
this information in the facility's
operating record. The owner or operator
must also notify the State Director that
the documentation of the justification
for reimbursement has been placed in
the operating record and that he has
received reimbursement. The Agency
notes that such a reimbursement system
is suitable only for mechanisms such as
trust funds, into which actual funds have
been set aside. Because other
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Federal Regiter/ Vol. 56, No.
mechanisms that provide for third-party
guarantees of payment (e.g., letters of
credit] do not involve setting funds .
aside, owners and operators would not
have to provide funds twice to meet the
requirements. However, the owner or
operator could be permitted to reduce
the level of coverage of the other
mechanisms provided that coverage
remains sufficient to cover all remaining
costs.
The. Agency wishes to make clear that
reimbursement of incurred expenses
from a trust fund would not in .any way
release an owner or operator from the
financial assurance requirements. All
owners and operators* would remain
subject to the requirements until
completion of closure, post-closure care
and/or corrective action is certified and
the State is notified in accordance with
§ § 258.71(a), 258.72(a), and 258.73(a).
Under today's rule, trust funds may be
terminated by the owner or operator
only upon release from the financial
assurance requirements, or if ail
alternate financial assurance
mechanism is substituted.
(2) Section 258.74(b) Surety Bond'
Guaranteeing Payment or Performance
• A surety'bond guarantees'payment '
for, or performance of, closure, post-
closure care, or corrective action-if the -'•
holder of the bond (the facility owner or •'•
operator) fails to fulfill these obligations.-
Surety bonds are geiierally issued by a
surety company. Under the terms of a
payment bond, the surety company
issuing the bond promises to pay the
costs of closure of post-closure care
activities if the owner or operator is
unable or unwilling to carry out those
activities. With a performance bond, the •
surety company promises to either pay
the required activities or to perform the
required activities on behalf of the
owner or operator. The Agency is
allowing only performance bonds to be
used to demonstrate financial assurance
for corrective action. Because financial
assurance for corrective action is not
required until a release has occurred, a
payment bond would have, to guarantee
that the owner or operator would fully
fund a standby trust fund at the time a
release was detected. This is a highly
unlikely scenario because an owner or
operator would most likely opt to use a
trust fund with a pay-in period. If the
owner or operator is using a payment
bond to satisfy the requirements, he
must establish a standby trust fund at
the same time that the assurance
mechanism is established, (A more
detailed discussion of standby trusts is •
provided below.) A copy of the bond
must be placed in the facility's operating
record
To ensure that the surety bond •
provides an adequate guarantee of
funds, the final rule requires that the
surety company issuing the bond must
be listed in Circular 570 of the U.S,
Department of the Treasury. Circular 570
is a list of surety companies which have
been approved for writing construction
bonds and other surety bonds for
federal projects. The rule also requires
that the bond must be issued in an
amount equal to the cost estimates for
closure, post-closure care or corrective
action (unless multiple instruments are
used as described below) and must be .
effective prior to the initialreceipt of
waste or by the effective date of-the
rule, whichever is later (in the case of
closure and post-closure care), or, in the
case of corrective action, within 120
- days of the selection of the corrective
action remedy. The rule also requires
surety bonds to contain provisions
preventing cancellation of the bond
either by the surety, except with 120
days advance notification of
cancellation to the owner or operator
and to the State,' or by the owner qr
operator unless an alternate mechanism
' has been obtained. Without such -
cancellation provisions, a third-party
provider of-assurance might cancel a
mechanism immediately prior'to closure
or during the post-closure care or
corrective aetiori period in order to
'avoid payment of those costs.
While' not required in today's rule.
States implementing a part 258MSWLF
program may wish to specify the
wording of surety bonds used to
demonstrate financial assurance to help
ensure that the bonds meet the
performance standard and to minimize
State review burden. States can use the
surety bond language specified in
subtitle C requirements as a model (40
CFR 264.151 (b) and (c)}.
Section 258.74(b)(4) of today's rule
requires the establishment of a standby
trust fund to accompany a surety bond.
A standby trust fund serves as a
.depository for funds collected from the
providers of fin'ancial assurance.
Standby trust funds are only necessary
when an independent depository is
required. For example, under Federal
law, all payments to a Federal agency or
official must be deposited with the U.S.
Treasury and cannot be earmarked for a
specific use without reallocation (31.
U.S.C. 3302). Therefore, to guarantee
that the funds assured for a specific
facility are directed to the costs of
closure, post-closure care or corrective
action for that site, a standby trust fund
may be necessary. The standby trust
should be structured in a manner
substantially similar to the trust fund
described above.
In States implementing today's
revised criteria, it may be necessary to
require owners and operators using
other third-party mechanisms to
establish a standby trust for those
mechanisms if State law would
othervise prevent the State regulatory
authority from, accessing the funds
provided by the mechanism. If a State
determines that an account can be
established within its treasury into
which funds drawn on the financial
assurance mechanisms can be deposited
and withdrawn without special action to
pay the site-related .costs, then such a
State may use its treasury as the
depository mechanism and no standby
trust would be required. Each State
should examine its State law on the
issue of earmarking funds in and
appropriating funds from its general
treasury.
(3) Section 258.74(c) Letter of Credit
A standby letter of credit is an
instrument issued by aibank or other
financial institution that guarantees
payment to the beneficiary (the State
regulatory agency) if the holder of the
letter (the owner or operator) fails to
perform certain .obligations. Standby
letters of credit differ from traditional ..
commercial letters of credit in that
standby letters of credit cannot be
drawn upon unless a specified event
occurs. To ensure that the letter of credit
provides secure funds for closure, postr
closure care and corrective,action for
known releases, the final rule requires " :
that the financial institution issuing the
letter of credit must be an institution
with the authority to issue such a letter
and whose letter-of- credit operations
are regulated and examined by a
Federal or State agency. These agencies
would'be the same.agencies discussed
above as having authority to regulate
trustees, and would similarly differ
depending on the type of bank issuing
the letter of credit. (Additional
information is available in "Financial
Assurance for Closure and Post-Closure
Care: A Guidance Manual," May 1982.)
The letter of credit, like the surety bond
described above, must be issued in an
amount equal to the closure, post-
closure care, or corrective action cost
estimates (unless multiple instruments
are being used for financial assurance)
and must be effective prior to initial
receipt of waste or the effective date of
the rule, whichever is later (in the case
of closure and post-closure care), or, in
the case of corrective action, within 120
days of the selection of the corrective
action remedy. The letter of credit must
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51118 Federal Register / Vol. 56, No. 1S6 / Wednesday, October 9, 1991 / Rules and Regulations
also contain provisions limiting
cancellation similar to those described
above for surety bonds. A copy of the
letter of credit must be placed in the
facility's operating record.
While not required in today's final
rule, States implementing part 258
MSWLF programs may wish to consider
requiring specific wording for letters of
credit to ensure consistency among
instruments and minimize the burdens
of Stale reviews. States may wish to
refer to the specified language in the
subtitle C requirements as guidance (40
CFR 264.151(d)).
(4) Section 258.74(d) Insurance
Insurance is a contractual
arrangement, called the policy, under
which the insurer agrees to compensate
the policyholder for losses. The
purchase of insurance transfers the
financial risk from the policyholder to
the insurer. While insurance is generally
considered most appropriate for
coverage of contingent or unknown
events, such as accidents or natural
disasters, insurance is an allowable
mechanism for assuring closure and
post-closure care. Insurance is not an
allowable mechanism for demonstrating
financial assurance for corrective action
under the requirements promulgated
today for MSWLFs because insurance is
inappropriate coverage for known
corrective action. Financial assurance
for corrective action is not required until
a release has been detected and insurers
will not issue policies to cover the cost
of damages that have already occurred
(analogous to issuing fire insurance for a
burning building).
The final rule requires that the
insurance policy must be written to
cover the full amount of the closure or
post-closure care cost estimates (unless
multiple instruments are being used). An
insurance policy for closure or post-
closure care must be in effect prior to
the initial receipt of waste or the
effective date of the rule, whichever is
later, and a copy of the insurance policy
must be placed in the facility's operating
record. To ensure that the insurer is a
reliable source of financial assurance,
the final rule requires that insurers
issuing policies used to demonstrate
financial assurance for closure and post-
closure care must, at a minimum, be
licensed or eligible to provide insurance
as an excess or surplus lines insurer, in
one or more States. In addition, today's
rule specifies that insurance policies
may be canceled by the insurer only for
non-payment of premium and only 120
days after notice is sent to the owner or
operator and to the State. Owners and
operators may cancel the policy if they
have obtained a replacement
mechanism or if they have been
released from financial assurance
requirements.
(5) Section 258.74 fe) and (g) Corporate
Financial Test and Guarantee
Section 258.74 (f) and (h) Local
Government Test and Guarantee
' While no specific financial tests or
guarantee requirements are being
finalized in today's rule, the Agency
plans to propose part 258 requirements
that include these requirements hi 1992.
•The Agency anticipates that these four
requirements would take effect
concurrently.
(8) Section 258.74(i) State-Approved
Mechanisms
Today's rule authorizes the use, only
in approved States, of any mechanism
that is approved by the State. State-
approved mechanisms include any
financial mechanisms, in addition to
those described above, approved by a
State for use in demonstrating financial
assurance. Any State-approved
mechanism must meet the performance
criteria specified in § 258.74(1). A State
may approve a mechanism for use
generally or it may choose to approve
individual mechanisms submitted by
owners and operators on a case-by-case
basis. In either case, a State should
develop a process for approval to ensure
that mechanisms meet the performance
standard. In addition, States may wish
to specify mechanism language and
include provisions regarding
qualifications of providers and limiting
cancellation.
Given this frame-work, the Agency
encourages States to Consider
developing innovative approaches to
fulfilling the financial assurance
requirements. The Agency expects a mix
of instruments provided by third parties
and State-sponsored mechanisms to be
developed under this section. States
may wish to take into account a variety
of factors, such as the financial
capability of local owners and
operators, when developing new
mechanisms. Depending on the State's
financial resources and on the
population of owners and operators, a
State may wish to institute and
subsidize a loan or grant program to
assure that closure, post-closure care,
and corrective action obligations will be
.met, Other mechanisms might include
certificates of deposit, escrow accounts,
enterprise funds, and enforced local
government planning requirements. As a
further example,-the establishment of a
financial assurance fund organized by •
| the State and paid for by participating
MSWLFs may prove to be an attractive
alternative in many cases. The Agency
intends to prepare guidance that will aid
the State in establishing State-sponsored
financing programs.
(7) Section 258.74Q) State Assumption
of Responsibility
State assumption of responsibility
involves the direct participation of the
State in assuring that funds will be
available to cover the costs of closure,
post-closure care, or corrective action.
An owner or operator will be in
complianceif a State either assumes
legal responsibility for the owner or
operator's compliance with the closure,
post-closure care and/or corrective
action obligations, or if it assures that
funds will be available from State
sources to cover the obligations. State
assumption of responsibility can take
many forms, including purchase of
another financial mechanism on behalf
of the owner or operator, and the
issuance of a State guarantee. A State
could choose to assume responsibility
only under certain specified conditions
(e.g., where no responsible owner or
operator can be found or in emergencies
where the owner or operator is unable
to respond effectively). Options for
States to generate funds to cover the
costs associated with State assumption
of responsibility include funding through
general revenue, a special tax,
contributions from the MSWLFs
receiving assurance, or tipping fees
charged by participating MSWLFs.
States may also wish to consider
including provisions enabling the State
to obtain reimbursement from owners
and operators benefiting from State
assumption. As with State-approved
mechanisms, any mechanism for State
assumption of financial responsibility
must meet the performance criteria
specified in § 258.74(1).
(8) Section 258.74(kJ Use of Multiple
Financial Mechanisms
Owners and operators may. use more
than one mechanism to cover their
closure, post-closure care, or corrective
action costs. The total amount of
assurance provided by the mechanisms
together must equal the cost estimates
for closure, post-closure care, or
corrective action. The final rule requires
that, if a financial test mechanism is to
be combined with a guarantee provided
by a corporate relative, then the
financial statements of the two firms
may not be consolidated. Such a
limitation is necessary because if
consolidated financial statements are
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Federal Register / Vol. 56, No. 196 / Wednesday,: October 9, 1991 / Rules and Regulations 51119
used, then assets of the two firms may
be double-counted for the purpose of
determining whether each firm meets
the requirements. This double counting
may prevent the financial test from.
accurately measuring the financial
strength of the two firms involved.,
[FRDoc. 91-22983 Filed 10-8-91; 8:45 am]
BILLING CODE 65SO-50-M
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