Friday
January 18, 1991
Part IV
Environmental
Protection
, •_ ***& t&
40 CFR Part 265
Hazardous Waste Management System:
Amendments To Interim Status Standards
for Downgradient Ground-Water
Monitoring Well Locations at Hazardous
Waste Facilities; Proposed Rule
f- Printed en Recycled Paper
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2108
Federal Register,/ Vol. 56, No. 13 / Friday; January 18, 1991 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR PART 265
[FRL-3S66-8]
Hazardous Waste Management
System: Amendments To Interim
Status Standards for Downgradlent
Ground-Water Monitoring Well
Locations at Hazardous Waste
Facilities
AGENCV: Environmental Protection
Agency.
ACTION: Proposed rule and notice of •
availability.
SUMMARY: The Environmental Protection
Agency ("EPA" or "the Agency") is
proposing to amend 40 CFR 265.91 to
allow alternate placement of
hydraulically downgradient monitoring
wells at interim status facilities where
existing physical obstacles prevent
installations at the limit of the waste
management area.
DATES: Written comments on today's
proposed rule must be received on or
before March 19,1991.
ADDRESSES: Comments should be
. addressed to the docket clerk at the
following address: U.S. Environmental
Protection Agency, RCRA Docket (room
2427) (OS-305), 401M Street, SW.,
Washington, DC 20480. One original and
two copies should be sentamJudentified:
by regulatory docket reference number
F-01-DGWP-FFFFE. ThaDocket is,open..
from 9 a.m. to 4pott. Monday through
Friday, excfisding Federal holidays. The
public must make an appointment to
review docket materials, and should caff
the docket clerk at 12D2J. 475-9327 fern
appointments; The public may copy, free
of cfrarpx c. Baaadraam of one Bundred'
pages of material from any one
regulatory docket. Additional'copies are
SO.lSptrpaga.
FOR FURTHER INFOftSIKmOfli COWERCT:
For general information about this .
rulemaking, contact the RCRA Hotline,
Office of Solid Waste (OS-305), U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460, (800)
424-9348 (tollfree) or (202) 382-3000 in
the Washington, DC metropolitan area.
For technical information contact Neal
D. Durant, Office of Solid Waste (OS-
341), U.S. Environmental Protection
Agency, 401M Street SW., Washington,
DC 20400. (202) 475-7371.
Preamble Outline
I. Authority
II. Background
III. Summary of Today's Proposed Rule
IV. State Authorizations
V. Regulatory Requirements
VI. List of Subjects
I. Authority
These regulations are issued under the
authority of sections 1006, 2002(a& 3901.
3004, 3005, and 3015 of the Solid Waste,
Disposal Act, as amended by the
Resource Conservation and Recosrecy
Act of 1976, as amended by, the
Hazardous and Solid Waste
Amendments of 1984, (42 U.S.C. 69®$.
6912(a), 6921, 6924, 6925, and 6935J..
II. Background
On May, 19,1980, EPA promulgated1
comprehensive standards under 4OCFR
part 265 for owners and operator* of
hazardous waste treatment, storage, and
disposal facilities (TSDFs) that ipaHsr
for interim status. (45 FR 33153J. A
facility owner or operator wA<» has felly
complied with the requirements &s
interim status specified in sectios
3005(e) of RCRA and 40 CFK 270.7® may
comply with the part 265 regtaiatSons-in
lieu of part 264 pending final disposition
of the permit application. Part 26ft,
subpart F contains ground-water
monitoring requirements applicable to
owners and operators of interim states
landfills-, surfaee- impoundments, Eid
land treatment facilities. Several
challenges to tfse 1980 interim state
regulations are currently pendingliefore
the United States Court of Appeals for
the District of Columbia Circuit,
including a challenge to the ground-
wafer nsoBxtormg requirements of 4S
' CFR 265.91(a)(2). (Shell Oil Co., et.. of. v.
EPA, Na.8ft-1532pC Cir.)).
HI. Summary of Today's Proposed Kide
Section 265.91(a), currently requires
infec&n status faeffity owners and
operators to, install and operate a
ground-water monitoring system
canaJasfeg. ia part of at least three
kydraulically downgradient monitaE&sg
weirs-located at the limit of the waste'
management aroa; The number,
locations; and dep&s of these. weBs
must ensure immediate detection, of any
statistically significant amounts of
hazardous waste' or hazardous waste-
constituents that migrate from thews^e
management area to the uppermost
'aquifer.
The current regulations governing
ground-water monitoring at permBted
TSDFs also require well installations zt
the hydraulically downgradient limit of
the waste management area or "pom£ of
compliance". (40 CFR 264.95)i On faly
26,1988, the Agency proposed to amend
§ 264.95(a) to allow the Regional
Administrator to select alternate . .
hydraulically downgradient monitBsfasg
well locations, at permitted TSDFsr
where existing physical obstacles {jsr.g., '
natural geologic features, buildings,
6%jkways, or railroads) prevent the
installation of monitoring wells at the
point of compliance. This provision
weald be limited to units existing on the
effective date of the rule. New units,
lateral expansions; and replacement
BsSs would not be eligible for the
provision. (53 FR 28163). The Agency is
erafoatiajg public comments on the
proposal and preparing the final rule for
pvMication.
Ptetitioners in Shell Oil, have
requested review of whether the
retirement in § 265.91 (a) (2) to locate
l^draulically downgradient wells "at
tteliustaf the waste management area"
E£ arbaraay and capricious or otherwise
notin accordance vith law. They have
explained to the Agency that they -
Ibeifeve § 264.91(a) should be amended
to a-Qow alternate placement of
RpHraulically downgradient ground-
water monitoring wells where existing
p%sical obstacles prevent installation
at fte limit of the waste management
area EPA agrees and has agreed to
gcojbose the change requested. Pursuant
to the Settlement Agreement, the
Agaicy is today proposing to amend the
well placement requirements for interim
status facilities consistent with the
proposed amendments to § 264.95 for
permitted TSDFs. Specifically, proposed
§ 265.91(a)(3) provides that the owner or
operator of an existing facility may
dfessHKisteate that an alternate
BysfeauEeally downgradient monitoring
well loca-Bon will meet the criteria in
•§ 235.91 (a) (2). The demonstration must
be in writing and kept at the facility.
Adffltionally, the demonstration must be
eestlfied by a qualified geologist or
geotechnical engineer and establish that:
CIJJAn existing physical obstacle
prevents monitoring well installation at
tfeeltydrauiically downgradient limit, of
fee waste management area, (2) the
selected alternate downgradient
location is as close to the waste
• management area as practical; and (3)
fee selected alternate downgradient
location ensures immediate detection of
aazy statistically significant amounts of
itazawfecs waste or hazardous
coaatftueEcfc that migrate from the waste
management area to the uppermost
surfer consistent with § 265.91(a)(2).
EPA believes that alternate locations for
dftwngradient wells meeting these
raifcaia will protect human health and
tfte environment by continuing to- ensure
the; earliest possible detection of
nxjgsatiisg contaminants.
• ; fttadeffteem to geologic features,
lighways, or railroads, the
Agsssybefieves that factors affecting
ffie safety of personnel may also qualify
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JecteraJjtegister / Vol. 56. No. 13 / Friday. January 18, 1091 I Ifroppsed Rules 2109
as "physical obstacles". For example,
the presence of overhead or
underground electrical cables and wires
may prevent a safe well installation at
the hydraulically downgradient limit of
the waste management area at some
Sites, In these cases an alternate well
location should be selected that meets
the performance standard of
immediately detecting any statistically
significant increases in constituent
concentrations in the uppermost aquifer.
Alternate locations of downgradient
wells are not appropriate when physical
obstacles at the limit of the waste
management area may be avoided/For
example) physical obstacles may be
avoided hi some circumstances through
the use of alternate drilling techniques
(e,g,, directional drilling) or by
interrupting power in overhead
electrical cables during installation of
monitoring wells to ensure the safety of
the drilling crew.
Proposed § 265.91(a)(3) also limits the
availability of alternate locations of
downgradient wells to units existing on
the effective date of this proposed
amendment. Owners or operators of
new, expanding or replacement units are
not eligible to select alternate
downgradient monitoring well locations
as a result of physical obstacles. The
limitation to existing interim status units
is consistent with the proposed
requirements under § 264.96[a) for
permitted facilities,
New, expanding, or replacement units
can and should be designed to ensure
that physical obstacles do not impede
monitoring well placement at the
downgradient limit of the waste
management area. The Agency
continues to believe that wells placed at
the hydraulically downgradient limit of
the waste management area generally
provide the greatest assurance of
immediate detection. However, some of
the comments received on the July 26,
1988 proposal for permitted facilities
urged the Agency to allow alternate
hydraulically downgradient monitoring
wells to avoid physical obstacles at all -
units, regardless of whether the units
were in existence at the effective date of
the rule. Although in the vast majority of
situations EPA expects that owners and
operators of new, expanding, or
replacement units should be able to plan
construction to avoid the need for
alternate point of compliance wells, the
Agency is soliciting comment on
whether this provision should be
expanded to apply to new, expanding,
and replacement units in addition to
existing units. The Agency requests
comment on whether proposed
§ 265.91(a)(2) should treat new.
expanding, and replacement units in
interim status differently than units
existing at the effective date of the final
rule.
As discussed above, demonstrations
of the necessity and location of ..
alternate hydraulically downgradient
monitoring wells must be certified by a
qualified geologist or geotechnical
engineer. Certifications by qualified
geologists or geotechnical engineers are
currently required under two interim
status provisions; § 265.90(c)
• demonstrations for waiver of ground-
water monitoring requirements, and
ground-water quality assessment plans
submitted to the Regional Administrator
under § 265.93(d)(2). Certification is
required under each of these provisions,
similar to proposed § 265.91(a)[3),
because they require facility owners or
operators to make judgements or
assessments concerning complex
hydrogeologic conditions, Given the
largely self-implementing nature of the
interim status program, certification by
qualified geologists or geotechnical
engineers is necessary to provide the
oversight to ensure technically sound
decision-making in regard to. these
. conditions.
The terms "qualified geologist" and
"qualified geotechnical engineer" are
not defined in existing federal
regulations. State registration or
licensing requirements for geologists can
vary significantly among those states
that have such requirements. For
example, geologist registration codes in
one state require a bachelor's degree in
geology, at least, five additional years of
experience in geology, and the
successful completion of the state
, examination; while another state does
not require completion of a state exam,
and instead requires the approval of •
members from a national geologist
association. Because state geologist
registration requirements vary
significantly among states and do not
explicitly require study and experience
in hydrogeology, individuals desiring to
become "qualified geologists" may need
to meet supplemental criteria in addition
to state registration.
The Agency believes that a "qualified
geologist" is an individual who has
completed a degree in geological
sciences from an accredited university,
has met any state or local requirements
for geologist registration, and has gained
sufficient training and experience in
ground-water hydrogeology, thus
enabling that individual to make sound
professional judgements regarding •'
hydrogeologic processes and
contaminant transport. The Agency also
believes that if the individual practices
in a state without registration
requirements, he.or she is a "qualified
geologist" if the supplemental criteria
outlined above" have been met.
All states have relatively comparable
exams for registering professional
engineers, but few states have programs'
for registering engineers in the field of
geotechnical engineering. The Agency
believes that a "qualified geotechnical
engineer" is an individual whojs a
registered professional engineer in the
state in which they practice, has met
any state and local requirements
concerning registration of civil and
geotechnical engineers, and has gained
sufficient training and experience in the
application of sou" and hydrological
sciences as demonstrated by completion
of accredited university programs and
state certification examinations that
enable that individual to make sound'
professional judgments regarding soil
and ground-water processes, including
contaminant transport. The Agency also
believes that if an individual practices
in a state without geotechnical engineer
registration requirements, he or she is a
•'qualified geotechnipal engineer" if the
above criteria have been met.
- The Agency requests comments on all
provisions of proposed § 265.91.
IV; State Authorization
A, Applicability of Rules in Authorized
States
Under section 3008 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under sections
3008, 7003, and 3013 of RCRA, although
authorized States have independent
enforcement authority.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State with final authorization -
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program in
that State. The Federal requirements no
longer applied in the authorized State, •
and EPA could not issue permits for. any
facilities in the State which the State
was authorized to permit. When new,
morp stringent Federal requirements
Were promulgated or enacted, the State
was obligated to enact equivalent
authority within specified time frames;
New Federal requirements did hot take
effect in an authorized State until the
State adopted the requirements as State
law,
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am*
EedaiaHlesstar / ¥ot. §». Net 13". / Friifey.. January 18. 1991 / Bfrqpoaed Ridtes
requkawenta and grak&itians HBgesede
byHSWAlakccf&Kitutau&orized • .
StateaaL the. aanue: time. that they, take
effect ia.noBau&ctcized&Ui£&. EPA is.
to carry out those lequkeraeHis.
including th£.»euaaGa.e£B&riaitBv vnOl
theSUteiaflpao*^ authorization tads*
so. WhiteSiates.mHi* siaH adapt
to retain Eaalaattor>2aiicix.&eHS.WA.
requirement apglg-ia
hi the interim-. •
B. Effect m State AatRorizatToDS
since- tbngqpirgfnctit^aig note being
SoliAWMirAmancImeEtsciia&5i Thus;
the ifespkemcste vratt be effBcSae
ttnnfeai States, fee
law.
Section 2£1.2J(eJ£2) reqafce* tftat
Stalest tkat bass, fiaat autiorizssficm must
modify thcitprpgjranrs to-refTeet more
stringent Federal program changes,, and
must subsequently submit the
i I* EP&LfiiF approval.
.
Generally, these authorized State
programs.musi.be reviaed tp.adqpt those
changes in a Etedeiai psogra'm thatare
more stringent on brpadier-in scope thaa
existing. Federal standards.
For those Fedenal jrogpam. changes
that are lesas.tringentoxEedufie.the
scope ottEa Federal nrogram. States- are
not requkejita modify t£eiE pgogcams.
' '
V. Regufeatorj Reqjik«saKJnts
A Regofotory-Rnpact Analysis
Executive Order 1,2291 requires EPA
to d&tenaine, whether a- eew regulatuan
will be •"major-"' and, if so,, tfaata
Regulatoiy Imgaat Aaaljfsis he
conducted; A raajoB rule isdefmed-afr a
regufa tton that is- likely to result hx:
1. An, annual effefit ea- ts&e-eepnam^ of
$100, million OE mere;
2. A major iBsrease.- in-, eoat* or pcke»
for consumens-,. indivtkkiEd indnstrLaa,.
Fedesai. State, or local- gavejnment-
agencifi&OE gpogEajjhic regions; OP
3. SSgmfkani ad«eBse,.effects, oa.
r,rt»ffiur.p- tRp.stringpnt^ of
§ 2S5.&lfa). Therefore;.authorized States.
may but aranot required.to modify their
programs* fa adantKequirements,
equivalent or, substantially equivalent to.
those propoaeiin. taday/s ruIerBecfliiBe
the requiremeala proposed today are
less atiingenttfian.theexisiiag,Eed£ral
requixements. i£is,ualikelji-'th«b any,
authoiizedt State, ias.:
: ability of
requif etnenta,, and; will itat imposfi-
furthea Mtaoure&buEdeBS.oas: the
regulated. cominimity.
B. Paperwork Reduction Act
The information coBfietLoa and
recordkeeping reqjikements, un this
proposed rule, have beeiii submitted; for
appsaval ta the Office, of Management
and Budget undeE the Paperwork
Reduction. Act,. 44 U-ACL 3581 et aeq~
• RecoEdkeening bardea te the pubite far
this, proposal is- estimated at ISQO-hfttira
fat. the.EesgoBdents»witb an aveiage-erf
20 hours per- Eespease. Ihese- bardsa
estimates- incliade all- aspeets of the
recoEdkeepiag effect and may include
DC 2050^, 13ie final lule, wiU nespoi^ t®
compete; wife fisEeigra-bsaed entecprises
in doHiestkoi export ia,:ffiket&.
The Agency, has determined thai
today's j^eqsKtsed rule i»JM>it,a major
rule, because.- ft does aab meet the- afea*e
criteria. Today's, pcoposed action. wi31
add flexibJliitSr to- the- etnxeat: intenra
equivalent to. those propQsedi
searching^ existiag data sources,, aad
gathering; and, maaattainiHg necessary
data.
If you wish- ta. submit eommeats-
regaztdiag,aoy aapeet o£ this eoliection of
infosmatiea. inieluding;^iggeatk>ns: for
reducing, the buzdeny costa&t Chief,
InfoKaatioa Pdiejf Bra4eKPJit-223i US.
E»«reonnieittai Proteciisn Agency, 4O1 M
St. SW., Washington, DG 28460- £262-
382.-2745)i, and PageEwarife Redaetian
Project (2Q5£M]033.),. Office ef '
Managemeai and Budgsi, Washingtonk
iafDrmatiar!; eollEefism EequJrenuentS,
contained! ite tkis pcopesai.
y st of Subjects En 40. CFR Part 2Kf
Hazardous waste-, Hazajedoas
materials, Rep»stiRg;and.Eecordkeepin^
requirements!, Ground>wa\tei menlteMng;
Dated: January II,
F. Henry Habicht,
Aetfftg Administrator,
OF€BftlORS OF M*2ftRDOl*& WASTE
THE AbTMBiT, STORAGE,. ANQ)
DISPOSAL FAOLRISS:
I. The authority cibktiom, for part. 265
continues to read: as foDbwsi
6925, and 6935..
2. In § 265.91 by adding^pacagrapfc
(ai)f3> ta-rsadias follews:-
§ 265.91 GrQund-watet manitoriBg, system;
Ca) * * *
(3) The facility awner, or, operate stay
demonstrate thai an. alternate
hydraulically downgradient maaitering,
well Iscatkua will meet th& cr-iteria- kt
. ,
b& in. writing and kept a;t the facilirjr.
AdditionaEy,, the demenstralioa miust- be
certified hyr if qualified geologist er
geotechnical engineer and estabiiafe feafc
(i). An exislmg, physical obstacle
prevents .monitoring, well installation at
the hjtdraulicaHy downgpadient limit of
the waste management area;, and
(ii) The selected alternate,
downgradient locatioH- is as, close to. the
limit of the waste management area, as,
practieali. and
piiJT&e 1'o.catibn enaures. immediate
detection, of any statistically, sigaifieant
amounts of hazardtma waste: or
hazardous waate constituents, that,
migrate from the waste management
area to the uppermost aquifer. Lateral
expansion,, new,. OE replacement units
.are not eligible for aa alternate
downgradi'ent location undfer this,.
paragraph.
* * * * *',.".
[FB Dec. 91-1299 EiteAl-17-9a;,8!4S am}
BILLIHQ CODE W60-5»4* '•
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