FPA
Env -onmental Protection
Agency
Office of Solid Waste
and Emergency Response
Washington OC 20460
April 1986
Solid Waste
Background Document -
Final Rule
Closure/Post-clpsure and
Financial Responsibility
Requirements
Hazardous Waste Treatment,
Storage, and Disposal
Facilities
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EPA/530-SW-86-009
BACKGROUND DOCUMENT - FINAL RULE
CLOSURE, POST-CLOSURE CARE, AND FINANCIAL
RESPONSIBILITY REQUIREMENTS
Hazardous Waste Treatment, Storage,
and Disposal Facilities
U.S. Environmental Protection Agency
Office of Solid Waste
April 1986
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BACKGROUND DOCUMENT - FINAL RULE
CLOSURE, POST-CLOSURE, AND FINANCIAL
RESPONSIBILITY REQUIREMENTS
Hazardous Waste Treatment, Storage,
and Disposal Facilities
Table of Contents
Page
FOREWORD 6
I. BACKGROUND 7
A. Regulatory History 7
B. Atlantic Cement Company Incorporated (ACCI)
Litigation and Settlement 8
C. Subparts G and H Implementation Experience .... 12
^
D. Hazardous and Solid Waste Amendments of 1984
(HSWA) 13
II. DEFINITIONS (PART 260) : 15
A. Active Life (§260.10) 15
B. Hazardous Waste Management Unit (§260.10) 18
C.- Partial Closure (§260.10) 23.
D. Final Closure (§260.10) .- 27
III. STANDARDS FOR PERMITTED FACILITIES (PART 264)
AND CONFORMING CHANGES TO INTERIM STATUS
STANDARDS (PART 265)
CLOSURE AND POST-CLOSURE CARE (SUBPART G) 29
A. Closure Performance Standard
§§264.111 and 265.111 29
B. Requirement to Furnish Closure and Post-
Closure Plans to Regional Administrator
§§264."ll2(a).
265.112(a),
264.118(c),
265.118(b) 36
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Table of Contents (continued)
Page
C. Clarification of Contents of Closure Plan
§§264.112(b)/ and 265.112(b) 40
D. Description of Removal or Decontamination of
Facility Structures and Soils in Closure Plan
§§264.112(b)(4) and 265.112(b)(4) 47
E. Requirement to Estimate the Expected Year
of Closure
§§264.112(b)(7) and 265.112(b)(7) 50
F. Amendments to Closure and Post-Closure Plans
§§264.112(0,
265.112(c),
264.118(d),
265.118(d) 55
.
G. Notification of Partial Closure and Final
Closure
§§264.112(d) and 265.112(d) 66
H. Removal of Wastes 'and Decontamination or
Dismantling-of Equipment
§S264.112(e) and 265.112(e) 76
I. Time Allowed for Closure
§§264.113 and 265.113 81
J. Disposal or Decontamination of Equipment,
Structures, and Soils
§§264.114 and 255.114 96
K. Certification of Closure
§§264.115 and 265.115 99
L. Survey Plat
§§264.116 and 265.116 109
M. Post-Closure Care and Use of Property
§§264.117 and 265.117 113
N. Post-Closure Plan
§§264.118(b) and (c), 265.118(a) and (c) 121
O. Post-Closure Notices
§§264.119 and 265.119 124
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Table of Contents (continued)
P. Certification of Completion of Post-Closure
Care
§§264.120 and 265.120 135
IV. STANDARDS FOR PERMITTING FACILITIES (PART 264) AND
CONFORMING CHANGES TO INTERIM STATUS STANDARDS
(PART 265)
FINANCIAL ASSURANCE REQUIREMENTS (SUBPARTH) 142
A. Cost Estimates for Closure and Post-Closure
Care
§§264.142(a),
265.142(a),
264.144(a),
265.144(a) 142
B. Anniversary Date for Updating Cost Estimates
for Inflation
§§264.142(b),
265.142(b),
264.144(b),
265.144(b) 149
C. Revisions to.the Cost Estimates
§§264.142(c),
264.144(c),
265.142(c),
265.144(c) 153
D. Closure and Post-Closure Cost Estimates
§§264.142(c),
264.144(c),
265.142(c),
265.144(c) 156
E. Trust Fund Pay-In Period
§§264.143(a)(3) and 265.143(a)(3) 158
F. Reimbursements for Closure and Post-Closure
Expenditures from Trust Funds and Insurance
§§264.143(a)(10) and (e)(5),
264.145(a)(ll) and (e)(5),
265.143(a)(10) and (d)(5),
265.145(a)(ll) and (d)(5)) 162
G. Final Administrative Order Required
§§264.143(b)(4)(ii),
264.145(b)(4)(ii),
265.143(b)(4)(ii),
265.145(b)(4)(ii) 168
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Table of Contents (continued)
H. Final Administrative Determination Required
§§264.143(c)(5) and (d)(8),
264.145(c)(5) and (d)(9),
265.143(c)(8),
265.145(c)(9))
I. Cost Estimates for Owners or Operators
Using the Financial Test or Corporate
Guarantee Must Include UIC Cost Estimates
for Class I Wells
§§264.143(f)(l),
264.145(f)(l),
265.143(e)(l),
265.145(e)(l) .......................... . ..... 173
J. Cost Estimates Must Account for All
Facilities Covered by the Financial Test
or Corporate Guarantee
§§264.143(f)(2),
265.143(e)(2).
264.145(f)(2),
265.145(e)(2) ....... . ........................ 177
K. Release of Owner or Operator from the
Requirements of Financial Assurance for
Closure and Post-Closure Care
§§264.143(i),
265.143(h),
264.145(i),
265.145(h) .................................. 178
L. Period of Liability Coverage
§§264.147(e) and 265. 147 (e) ................... 180
M. Wording of Instruments
§264. 151 ...................................... 184
V. INTERIM STATUS STANDARDS (PART 265) ............... 188
A. Applicability of Requirements
§264,110 ...................................... 188
B. Waste Pile Closure Requirements Included
by Reference in the Closure Performance
Standard
§§265.111 and 265.112 ......................... 190
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Table of Contents (continued)
Page
C. Submission of Interim Status Closure and
Post-Closure Plans (Notification of Closure)
§§265.112(d) and 265.118(e) 192
D. Written Statement by Regional Administrator
of Reasons for Refusing to Approve or Reasons
for Modifying Closure or Post-Closure Plan
§§265.112(d) and 265.118(f) 198
VI. PERMITTING STANDARDS (PART 270) 201
A. Contents of Part B: General Requirements
§270.14(b)(14) 201
B. Contents of Part B: General Requirements
§§270.14(b)(15) and (16) 202
C. Minor Modifications of Permits ,
§270.42(d) 204
D. Changes .During Interim Status
§270.72(d) 207
VII. EFFECTIVE DATES 212
VIII. REFERENCES 214
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FOREWORD
This background document accompanies the final rule for
amendments to the closure and post-closure care (Subpart G) and
financial responsibility (Subpart H) requirements applicable to
owners and operators of hazardous waste treatment, storage, and
disposal facilities (TSDFs) (40 CFR Parts 264 and 265) and
conforming amendments to the definitions and the permitting
rules (40 CFR Parts 260 and 270). These regulations are
promulgated under the Resource Conservation and Recovery Act.
This document describes the public comments received by
EPA concerning the proposed amendments and sets forth EPA's
responses.
The document is divided into eight parts. Partt I presents
the background of the rulemaking proceeding." Parts II through
VI describe the public comments and EPA's responses. For each
section of the regulation that is amended the following
information is presented: (1) synopsis.of the previous
regulation; (2) a summary of the March 19, 1985, proposed rule;
(3) the rationale for amending the regulation; (4) a summary of
the public comments with EPA's analysis and response; and (5) a
summary of the final rule adopted by EPA. Part VII addresses
effective dates and Part VIII lists references.
Because many of the requirements for interim status
facilities (Part 265) parallel those for permitted facilities
(Part 264), only those changes to Part 265 requirements that
differ from the Part 264 requirements are addressed
independently in Part V.
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I. BACKGROUND
I.A Regulatory History
The Resource Conservation and Recovery Act (RCRA) creates
a comprehensive system of regulation of hazardous waste.
Subtitle C of RCRA creates a "cradle-to-grave" management
system for hazardous waste. Section 3004 of Subtitle C
requires the Administrator of the Environmental Protection
Agency (EPA) to establish standards for hazardous waste
treatment, storage, or disposal facilities (TSDFs) as may be
necessary to protect human health and the environment.
EPA has issued several sets of regulations under the
authority of Subtitle C. This background.document concerns
regulations for closure and post-closure ^care (Subpart G) and
financial assurance (Subpart H) for permitted facilities (Part
264) and interim status facilities (Part 265) of Title 40 of
the Code of Federal Regulations. On May 19, 1980, EPA
promulgated Part 265, Subpart G regulations in 45 FR 33242
specifying general standards for closure and post-closure care
of interim status TSDFs. Financial responsibility requirements
for closure and post-closure care and liability coverage
(Subpart H) of interim status facilities were proposed on that
date in 45 FR 33260. On January 12, 1981, EPA added Subparts
G and H rules to Part 264 in 46 FR 2849. EPA also made
limited changes to' Subpart G Part 265 on January 12, 1981, in
response to public comments, in 46 FR 2875. Subpart H
requirements (Parts 264 and 265) were subsequently amended in
47 FR 15047 (April 7, 1982) and 47 FR 16554 (April 16, 1982).
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On March 19, 1985, (50 FR 11068) in initiating the
rule-making that is the subject of this background document,
EPA proposed to amend Parts 260, 264, 265, and 270 of the
existing RCRA regulations. Part 260 of 40 CFR includes
definitions that apply to all other parts of the regulations.
Part 264 provides standards for owners and operators of TSDFs
that have been issued RCRA permits. Part 265 provides interim
status standards for owners and operators of TSDFs. Part 270
establishes permitting requirements for TSDFs.
The public comment period for- the rule proposed on March
19, 1985, extended from March 19 to May 20, 1985. No public
hearing was held on the proposed rule. A number of comments
were received and they are included in the Public Docket. EPA,
is now adopting these regulations as a final rule after
considering and, at times, incorporating modifications
suggested by the public comments.
I.B Atlantic Cement Company Incorporated (ACCI) Litigation
and Settlement
The regulations proposed on March 19, 1985, were in part
an outcome of a legal settlement submitted to the United States
Court of Appeals for the District of Columbia Circuit on August
16, 1984. This settlement was the result of a case that began
shortly after EPA promulgated the January 12, 1981,
regulations. Individual companies and trade associations filed
17 separate lawsuits challenging several portions of those
regulations. The cases were consolidated in American Iron and
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Steel Institute v. U.S. Environment Protection Agency (D.C.
Cir., No. 81-1357 and Consolidated Cases).
On September 8, 1981, the petitioners presented to EPA a
consolidated statement of 42 issues, which established the
subject matter of negotiations between EPA and petitioners. Of
the 42 issues, 24 pertained to Subparts G and H regulations.
Many of the issues pertaining to Subpart H regulations were
rendered moot by subsequent EPA regulatory action, including
amendments to the financial assurance requirements (47 FR
15032, April 7, 1982, and 47 FR 16544, April 16, 1982).
On August 16, 1984, the parties (with the exception of
several parties who voluntarily dismissed their lawsuits) filed
a settlement agreement with the Court. The American. Iron and
Steel Institute voluntarily dismissed its lawsuit rather than
join in the settlement; thus,, the case has been renamed
Atlantic Cement Company Incorporated v. U.S. Environmental
Protection Agency ("ACCI Litigation") (D.C. Cir., No.'81-1387
and Consolidated Cases). The following litigants signed the
settlement agreement: Atlantic Cement Company, Inc.; American
Mining Congress; Fertilizer Institute; National Agricultural
Chemical Association; The Babcock and Wilcox Company; Edison
Electric Institute; American Paper Institute; National Forest
Products Association; AMAX, Inc.; Kimberly-Clark Corporation;
American Wood Preservers Institute; American Petroleum
Institute; Chemical Manufacturers' Association; Association of
Metropolitan Sewerage Agencies; Ford Motor Company; National
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Solid Wastes Management Association; U.S. Environmental
Protection Agency; and U.S. Department of Justice.
The settlement agreement stipulated that EPA would prepare
proposed amendments to Subparts G and H that addressed the
following issues:
Subpart G
§§264.112(a), 265.112(a). 264.118(a), and
265.118(a). Amend requirement to allow owners or
operators to maintain their closure and post-closure
plans at a location other than the facility.
§264.112(a)(4). Amend requirement to estimate the
expected year of closure.
§§264.112(c) and 265.112(c). Amend deadlines for
notifying the Regional Administrator of closure.
§§265.112(d) and 265.118(d). Amend to require the
Regional Administrator to send the owner or operator a
detailed statement of reasons for disapproving or
modifying a closure or post-closure plan.
§§264.112, 265.112. Add (e) to allow owners or
operators to remove wastes and to decontaminate or
dismantle equipment at any time before or after
notification of closure.-
§265.113. Amend (a) to allow completion of handling
of hazardous wastes 90 days after approval of the
closure plan, if that is later than receipt of the
final volume of hazardous wastes. Amend (b) to allow
completion of closure activities 180 days after
approval of the closure plan, if that is later than
receipt of the final volume of wastes. Allow the
Regional Administrator to approve a longer closure
period. Amend (c) to require submission of
applications for extensions of the closure period at
least 30 days prior to expiration of the 90-day
deadline or the 180-day deadline or within 90 days of
the effective date of this regulation, whichever is
later.
§§264.113(a)(l)(ii) and (b); and (b)(l)(ii) and (2)-
and 265.113(a)(l)(ii) and (2); and (b)(l)(ii) and
(2). Amend to allow a variance to the closure
deadlines if the owner or operator will recommence
operations and (1) the facility has the capacity to
receive additional wastes, (2) there is a reasonable
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likelihood that operations will recommence within one
year, (3) closure would be incompatible with continued
operation of the site, and (4) the facility is being
operated in compliance with permit requirements.
§§264.115 and 265.115. Amend to drop requirement
that the closure certification be performed by an
independent registered professional engineer.
Subpart H
§§264.143(i) and 265.143(h). Amend to require that
the Regional Administrator provide the owner or
operator a written explanation of reasons for refusal
to release the owner or operator from financial
responsibility requirements if he has reason to
believe that closure was not in accordance with the
plan.
§§264.145(i) and 265.145(h). Amend to require the
Regional Administrator to notify the owner or operator
of his release from post-closure care financial
responsibility obligations in writing, at the request
of the owner or operator. Amend to require the
Regional Administrator to provide the owner .or
operator with a written explanation of reasons for
refusal to release the owner or operator, if
applicable:
§§264.143(a)(10) and 265.143(a)(10). Amend to
require the Regional Administrator to instruct the
trustee within 60 days after a request for
reimbursement to reimburse persons for closure
expenses or to provide a written explanation of why
reimbursement is refused.
§§264.145(a)(11) and 265.145(a)(11). Amend to
require the Regional Administrator to instruct the
trustee within 60 days after a request for
reimbursement to reimburse persons for post-closure
expenses or to provide a written explanation of why
reimbursement is refused.
§§264.143(b)(4)(ii), 264.145(b)(4)(ii),
265.143(b)(4)(ii), and 265.145(b)(4)(ii). Amend to
requi-re the standby trust fund to be funded to an
amount equal to the-penal sum within 15 days after an
order to begin closure issued by the Regional
Administrator becomes final or after an order to
begin closure is issued by a U.S. district court or
other court of competent jurisdiction.
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§§264.143(c)(5) and (d)(8), 264.145(c)(5) and
(d)(9), 265.143(c)(8>, and 265.145(c)(9). Amend by
removing the word "determination" and inserting, in
its place, the words "final determination."
EPA agreed to submit to the Office of Management and
Budget ("OMB") proposed closure and post-closure care
regulatory amendments within five months after filing the
settlement agreement with the Court and to request that OMB
expedite its review of the regulations. EPA also agreed to
transmit the amendments to the Federal Register for
publication within ten days after completion of OMB review and
to provide a public comment period not to exceed 60 days for
the proposed regulations.
The development of the final rule following the March 19,
1985, proposal also was guided in part by the terms of the ACCI
settlement .agreement. EPA agreed to submit the" appropriate
final closure and post-closure care regulations to OMB within
four months after the close of the public comment period and to
request that OMB expedite its review of these regulations.
Therefore, the development, review, analysis, and promulgation
of this rule has been subject to strict time limits.
I.C Subparts G and H Implementation Experience
Since January 12, 1981, EPA and authorized States have
gained considerable experience with the implementation of
Subparts G and H. Telephone surveys, compliance analyses, and
Regional implementation reviews have identified issues
concerning the implementation of Subparts G and H. Based on
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this experience, EPA is making additional changes to the
Subparts G and H regulations and provisions in Parts 260 and
270. The following are among the implementation issues being
addressed in this rulemaking:
The definitions of active life, hazardous waste
management unit, partial closure, and final
closure;
The closure performance standard;
Applicability of the closure requirements to
partial closures;
Clarification of the content of plans and cost
estimates; -
Clarification of procedures for amending plans;
Soil decontamination;
Estimation of year of closure;
Determination of final receipt of hazardous
waste;
Timing for submitting survey plats and deed
notices;
Scope and timing of post-closure care
activities;
Post-closure care certification;
Procedures for developing and revising cost
estimates; and
Conditions for transfer of ownership of TSDFs.
I.D Hazardous and Solid Waste Amendments of 1984 (HSWA)
On July 15, 1985, EPA published in the Federal Register
(50 FR 28702) final rules implementing provisions included in
the Hazardous and Solid Waste Amendments of 1984 (HSWA)
(hereafter referred to as the "codification rule"). Some of
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the final amending the Subparts G and H regulations have been
promulgated to conform to HSWA and to the requirements of the
codification rule.
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II. DEFINITIONS (PART 260)
II.A Active Life
§260.10
II.A.I Synopsis of Previous Regulation
"Active life" was not formally defined in the definition
section (§260.10). However, §§264.112(b) and 265.112(b)
defined "active life" of a facility as "that period during
which wastes are periodically received."
II.A.2 Summary of Proposed Rule
The Agency proposed to delete the existing definition of
"active life" from §§264.112(b) and 265.112(b) and place a new
definition of "active life" in §260.10. The proposal defined
"active life" a? "the period from the initial receipt of
hazardous waste at the facility until the Regional
Administrator receives certification of final closure."
II.A.3 Rationale for Proposed Rule
Under the previous regulations it was unclear whether
activities required to be undertaken during the active life of
the facility should be carried out during the closure period,
when wastes were not being received. Section 264.90(c)
specified that owners or operators must comply with the
Subpart F ground-water monitoring requirements "during the
active life of the regulated unit (including the closure
period)." Similarly, §§264.221(a), 264.251(a), and 264.301(a)
specified that liners for surface impoundments, waste piles,
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and landfills must .prevent the migration of wastes during "the
active life (including the closure period)." However, "active
life" was not defined in other sections of the regulations,
including parallel sections in Part 265.
In order to clarify that "active life" includes the
closure period, even if hazardous waste is not received during
that period, EPA proposed a definition of "active life" in
§260.10 that gives the term the same meaning whenever it is
used in Parts 260 through 265. The definition clarifies that
activities such as- ground-water monitoring, run-on and run-off
control, and leachate collection must be continued through the
closure period. Similarly, closure cost estimates must include
all activities that are required during the clqsure period as
well as those activities conducted to shut down operations.
II.A.4 Comments and Responses
Two commenters agreed with the. new definition of active
life. Two other commenters criticized the proposed definition
for the .following reasons.
II.A.4.1 Proposed Definition Is Too Broad
The definition is too broad and is inconsistent
with the common understanding of the words.
Instead, EPA should specifically identify the
regulations that apply during the closure period.
The Agency believes that the definition is sufficiently
specific to identify the required activities and the period of
their applicability. In general, all activities required prior
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to closure, such as ground-water monitoring, will remain
effective through the closure period. The definition is
consistent with the normal meaning of the words "active" and
"closed," and also is consistent with the definitions in Part
260 of "active portion" "that portion of a facility where
treatment, storage, or disposal operations are being or have
been conducted ... and which is not a closed portion" and
of "closed portion" "that portion of a facility which an
owner or operator has closed ..." (emphasis added). The rule
is intended to ensure that there cannot be a gap in
ground-water monitoring or other similar activities between the
beginning of closure and the beginning of post-closure care.
II;A.4.2 Applicability of Requirements During Closure
Monitoring and security practices are already
included in most closure plans, and an owner or
operator may unavoidably fall out of compliance
due to infeasibility in performing activities,
such as inspections, if a hazardous waste
management unit is defined as active throughout
closure. "Active life" should be defined as
ending when closure begins.
The purpose of the definition is to ensure that necessary
monitoring and inspections are continued throughout the closure
period. It is not the Agency's intent to impose burdensome or
unnecessary requirements on owners or operators or to cause
facilities to have compliance problems due to paperwork. The
previous regulations already make clear that certain activities
must continue throughout the closure period. For example,
§§264.73 and 265.73 already require the owner or operator to
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maintain the operating record "until closure of the facility-11
Furthermore, properly conducted closure activities should not
make it infeasible to continue necessary environmental
protection activities such as ground-water monitoring and
leachate collection. Inspections during the closure period are
particularly important to ensure that closure is being carried
out correctly. EPA, therefore, does not agree that the
proposed rule is unnecessary or undesirable, or that the
actions it requires are infeasible.
II.A.5 Final Rule
Having analyzed the comments, the Agency has decided to
adopt the definition of "active life" as proposed.
II.B Hazardous Waste Management Unit
§260.10
II.E.I Synopsis of Previous Regulation
The term "hazardous waste management unit" was not defined
in the previous Subpart G regulations. Similarly, although
§260.10 defined partial closure as closure of a "discrete
portion" of a facility, the previous rule did not define
"discreteportion." Although "unit" had not been formally
defined, "unit" was described in the preamble to the July 26,
1982, regulations (47 FR 32289) as a contiguous area of land
on or in which waste is placed, and the largest area in which-'
there is a significant likelihood of mixing waste constituents
in the same area.
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II.B.2 Summary of Proposed Rule
The proposed rule defined "hazardous waste management
unit" as the "smallest area of land on or in which hazardous
waste is placed, or the smallest structure on or in which
hazardous waste is placed, that isolates hazardous waste within
a facility." The proposed rule listed the following examples
of hazardous waste management units: "a tank system, a surface
impoundment, a waste pile, a land treatment unit, a landfill
cell, an incinerator, and container areas."
II.B.3 Rationale for Proposed Rule
Because the proposed rule required explicitly that closure
regulations apply to partial closures as well as final
closures, EPA also proposed to define a new term -- "hazardous
waste management unit" -- to clarify the concept of partial
closure. The Agency intended with this proposal to incorporate
into the regulations the substance of the definition of unit as
discussed in the preamble to the July 26, 1982, regulations.
The proposed definition for "hazardous waste management unit"
also was intended to expand the term to include tank systems
and container storage areas (i.e., the containers and the land
or pad on which they are placed, but not individual containers).
II.B.4 Comments and Responses
Two commenters agreed with the new definition. Several
other commenters suggested the following changes, which have
been divided into three categories.
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II.B.4.1 Proposed Definition is Ambiguous
"Hazardous waste management facility" and
"hazardous waste management unit" need to have
more coherent principles backing their
definitions and those definitions need to be
consistently applicable for both commercial and
non-commercial facilities.
Subsections of a landfill cell should not be
subject to the "unit" definition.
It would not be environmentally safe to require
separate closure of sub-sections of a landfill
cell, since it would be impossible to apply the
closure and post-closure requirements to the
sub-cells of a defined landfill cell.
The Agency agrees that the proposed definition should be
clarified to avoid ambiguities and misapplications of the
regulations. The' definition should be more consistent with the
definition of unit in the July 26, 1982, preamble and with the
discussion in the 'preamble to the codification rule (50 FR
28702, July 15, 1985). The July 15, 1985, rule codified RCRA
Section 3015 (Section 202 of HSWA), which requires owners or
operators of waste piles, landfills, and surface impoundments
operating under interim status to meet minimum technological
requirements. These requirements apply to new units,
replacements of existing units, and any lateral expansion of an
existing unit. The legislative history of HSWA indicates that
Congress intended "unit" to be defined as in the preamble to
the July 26, 1982, regulation and as further defined by EPA.
The Agency also agrees that the distinction between
landfill cells and cell subsections was not made adequately
clear in the proposed rule. It is not the Agency's intent to
define subsections of a landfill cell as hazardous waste
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management units. The proposed definition has been reworded to
define a hazardous waste management unit as a "contiguous area
of land on or in which hazardous waste is placed, or the
largest area in which there is a significant likelihood of
mixing hazardous waste constituents in the same area." This
definition is consistent with the codification rule.
II.B.4.2 Subdivisions of Container Storage Areas
A storage pad or area within a single
contiguous spill contaminant barrier of a storage
facility should be regarded as a hazardous waste
management unit.
. *
Although the Agency believes that the proposed definition
addressed the issue of subdivisions of large storage areas, the
ft
definition has been revised to be more specific. EPA does not
intend for a single container to qualify as a hazardous waste
management'unit. Storage containers together with their
underlying pads, however, are intended to qualify as hazardous
waste management units. The proposed definition has been
changed to reflect this intent by specifying that, "a container
alone does riot consitutute a unit; the unit includes containers
and the land or pad upon which they are placed."
II.B.4.3 Use of Word "Isolates"
Use of the word "isolates" in the proposed
definition allows for ambiguities as to what
types of facilities would be bound by the closure
requirements. EPA should list the particular
types of units it would consider hazardous waste
management units.
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The Agency agrees that the word "isolates" in the proposed
definition allowed for varied interpretations and, contrary to
the Agency's intent, does not help to specify the meaning of
the definition. The proposed definition has been changed in
response to this comment to refer instead to "the largest area
in which there is a significant likelihood of mixing hazardous
waste constituents in the same area."
EPA also agrees that listing the particular types of units
considered to be hazardous waste management units clarifies the
definition. A list was provided in the proposed rule, and a
similar list is included in the final rule. The list, however,
is intended to be illustrative, and is not intended to specify
comprehensively all types of units that are considered to be
hazardous waste management units.
II.B.5 Final Rule
Having analyzed the comments, the Agency has decided to
redefine the term "hazardous waste management unit" so that it
is less ambiguous and more consistent with the definitions in
the July 26, 1982, preamble and the codification rule. In
addition, the definition includes a list illustrating the
Agency's understanding of the term. "Hazardous waste
management unit" is now defined as:
"a contiguous area of land on or in which hazardous
waste is placed, or the largest area in which there
is a significant likelihood of mixing hazardous waste
constituents in the same area. Examples of hazardous
waste management units include a surface impoundment,
a waste pile, a land treatment area, a landfill cell,
an incinerator, a tank and its associated piping and'
underlying containment system and a container storage
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area. A container alone does not constitute a unit;
the unit includes containers and the land or pad
which they are placed."
II.C Partial Closure
§260.10
II.C.I Synopsis of Previous Regulation
Partial closure previously was defined in §260.10 as "the
closure of a discrete part of a facility in accordance with the
applicable closure requirements of Parts 264 or 265 of this
chapter." Examples of partial closure listed in the previous
regulation included: "closure of a trench, a unit operation, a
.
landfill cell, or a pit, while other parts of the same facility
continue in operation or will be placed in operation in the
future."
II.C.2 Summary of Proposed Rule
The proposed rule incorporated the term "hazardous waste
management unit" into the definition of partial closure. The
proposed rule defined "partial closure" as "the closure.of a
hazardous waste management unit at a facility that contains
other active hazardous waste management units ...." The
proposed rule also expanded the definition to include
additional examples: "partial closure may include the closure
of a tank system, landfill cell, surface impoundment, waste
pile, or other hazardous waste management unit, 'while other
units of the same facility continue to operate."
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II.C.3 Rationale for Proposed Rule
To minimize exposure to hazardous wastes and the
associated risks to human health and the environment, the
Agency generally encourages owners or operators to close
portions of facilities that are no longer in operation. At the
same time, however, the Agency considers it essential that any
portion of a facility, whenever closed, be closed in accordance
with all Subpart G and associated technical standards. By
clarifying the concept of partial closure, the Agency intended
to allow closing portions of a facility, while ensuring the
closure was environmentally safe.
II.C.4 Comments and Responses
II.C.4.1 Need for Partial Closures
Allowing partial closure is a distinct
improvement in the regulations because, .with the
difficulty involved in obtaining a land disposal
permit, an owner or operator may elect to close
the land disposal unit and obtain a final permit
for treatment or storage units at the facility.
The Agency believes that the previous regulation also
recognized the possibility of partial closures. For example,
the previous definition of partial closure identified closure
of a trench, pit, or landfill cell in accordance with the
standards established in Subpart G as a partial closure. The
intent of this amendment is to clarify what parts of a facility
may qualify for partial closure. The final rule expands the
definition of partial closure to clarify that closure of a
hazardous waste management unit at a facility with other units
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still operating is a partial closure. Closure of the last
hazardous waste management unit at a facility constitutes
final closure.
II.C.-4.2 Interim Steps vs. Partial Closure
Partial closure of a landfill should have
provisions for interim stages for each cell
closure. For example, a final closure plan for a
single impervious cap over a cluster of cells
should allow for closure of individual cells with
caps designed to protect against waste migration
for the remaining active life until the designed
final closure cover is applied. This would
protect the environment during the active life
and allow for more final closure design options.
.
If a working cover were used during the operating life of
the facility, this cover would probably be included in the
«
closure plan as part of the design for partial or final
closure. However,-the Agency did not intend for partial
closure to include the use of interim or working covers as the
technical design for the partial closure. Such a cover would
not satisfy the closure performance standard of Subpart G. A
partial closure, like a final closure, must satisfy all the
relevant standards in Subpart G.
II.C.4.3 Partial Closure of Tank Systems
The definition of "partial closure" includes a
"tank system" which may be interconnected by pip-
ing. . Closure of only a single tank should
constitute partial closure. Entire tankf-arms are
usually interconnected through a piping
manifold. The entire tankfarm would have to be
closed to trigger the plans review process.
"Interconnectedness" is difficult to verify by
field personnel, even with instrumentation or
drawings. Single tank locations are easy to
verify.
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The Agency does not agree that the definition of partial
closure would require an entire tank farm to be closed. The
final rule has been amended to clarify that partial closure can
include "the closure of a tank (including its associated
piping and underlying containment systems)" (emphasis
supplied). Thus, the final rule applies to a "tank system."
The use of "associated" to describe the piping is meant to
limit the cleanup of piping to that reasonably connected to the
tank. At final closure, of course, all piping must be
decontaminated.
II*.C.4.4 Relationship of Partial Closure to Final Closure
Some non-commercial facilities see a closure
plan as a series of partial closures with no
final closure.
Under the proposed and final rules, partial closure
requires at least one hazardous waste management unit at the
facility to remain open. The definition of "final closure," in
contrast, refers to the closure of the last hazardous waste
management unit at the facility. If an on-site generator
continuously keeps at least one hazardous waste management unit
in operation, then final closure will not have occurred. The
Agency does not anticipate, however, that any hazardous waste
management facility will remain in perpetual operation. For
example, permi-ts are limited to ten year terms, and permits for
land disposal facilities may be reviewed after five years.
Available capacity for disposal activities will ultimately be
exhausted. In other cases, the owner or operator for some
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other reason will cease operations. Therefore, at some point
final closure will occur.
II.C.5 Final Rule
After analyzing the comments received on the proposed
definition of partial closure, the Agency has decided to adopt
the definition substantially as proposed, with one change. In
the list of the examples, "tank system" has been replaced with
"tank (including its associated piping and underlying
containment systems)."
II .D Final Closure
§260.10
II.D.I Synopsis of Previous Regulation
The previous regulation did not define final clo'sure or
distinguish between partial closure and final closure.
II.D.2 Summary of Proposed Rule
In the proposed rule "final closure" was defined as
"closure of all hazardous waste management units at the
facility in accordance with all applicable closure requirements
so that hazardous waste management activities under Parts 264
and 265 of this chapter are no longer conducted at the facility
unless subject.to the provisions in §264.34." Under this
definition, closure of the last hazardous waste management
unit(s) of a facility constitutes final closure.
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II.D.3 Rationale for Proposed Rule
The definition of final closure was proposed to clarify
the distinction between partial and final closure, in light of
the accompanying amendments to 40 CFR Parts 260, 264, and 265
defining "partial closure" and establishing standards for
partial closures.
II.D.4 Comments and Responses
No comments were received concerning this amendment.
II.D.5 Final Rule
^
The Agency adopted the definition of "final closure" as
proposed with one exception. The final rule correctly
references §262.34 instead of §264.34.
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III. STANDARDS FOR PERMITTED FACILITIES (PART 264) AND
CONFORMING CHANGES TO INTERIM STATUS STANDARDS (FART 265)
CLOSURE AND POST-CLOSURE CARE (SUBPART G)
III.A Closure Performance Standard
§§264.111 and 265.111
III.A.I Synopsis of Previous Regulation
Sections 264.111 and 265.111 previously established
general closure performance standards applicable to all TSDFs.
The standards specified that a facility was required to be
closed "in a manner that: (a) Minimizes the need for further
maintenance, and (b) Controls, minimizes or eliminates, to the
extent necessary to prevent threats to human health and the
environment, post-closure escape of hazardous waste, hazardous
waste constituents, leachate, contaminated rainfall, or waste
decomposition products to the ground or surface waters or to
the atmosphere." (emphasis added) (The language in §265.111
differed slightly specifying "to the extent necessary to
protect human health'and the environment...") (emphasis
added).
III.A.2 Summary of Proposed Rule
The Agency proposed to amend §§264.111 and 265.111 in
three ways. First, the proposal^ expanded the performance
standard to include by reference the specific closure standards
for containers, tanks, surface impoundments, waste piles, land
treatment units, landfills, and incinerators included in 40 CFR
§§264.178, 264.197, 264.228, 264.258, 264.280, 264.310,
264.351, and the parallel interim status provisions in Part 265.
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Second, the Agency proposed to amend the language in §265.111
to parallel that in §264.111. Third, the proposed rules
contained three changes to the wording of the regulation,
replacing (1) "hazardous waste constituents" with "hazardous
constituents," (2) "contaminated rainfall" with "contaminated
runoff," and (3) "waste decomposition products" with "hazardous
waste decomposition products."
III.A.3 Rationale for Proposed Rule
The Agency proposed to incorporate references to the
specific technical closure requirements to ensure that the
general closure performance standard in §§264.111 and 265.111
is not interpreted improperly as more or less stringent than
the process-specific standards. The proposed rule explicitly
required owners or operators of TSDFs to comply with both the
general closure performance standard and the applicable
process-specific standards.
Although the language in §§264.111 and 265.111 of the
previous regulations differed slightly, the Agency interpreted
both sections to have the same meaning. For the sake of
clarity and consistency, the Agency proposed to amend §265.111
to read identically to §264.111.
The other changes to the wording in §§264.111 and 265.111
were also inte'nded to increase clarity and to conform to
Congressional intent. The previous regulation referred to the
control, minimization, or elimination of waste decomposition
products. The change to hazardous waste decomposition products
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was intended to clarify that the Subpart G standards apply only
to hazardous wastes and constituents. The previous regulation
also specified that closure must control, minimize, or
eliminate the post-closure escape of contaminated rainfall. To
clari-fy that EPA intended the requirement to apply more broadly
than to rainfall alone, the Agency proposed to replace the
phrase "contaminated rainfall" with "contaminated runoff."
"Hazardous waste constituents" was changed to "hazardous
constituents" to show that the usage was intended to be broader
than the definition given in §260.10. This change is
consistent with Congressional usage in HSWA (see III.A.4.1
below).
III.A.4 Comments and Responses
Commenters generally supported the clarifications in the
proposed rule. Some commenters suggested changes to the
proposal as discussed in the four sections that follow.
III.A.4.1 Hazardous Waste Constituents vs. Hazardous
Constituents
The wording of the closure performance standard
should not be changed from "hazardous waste
constituents" to "hazardous constituents." The
differences between "hazardous waste
constituents" (listed hazardous wastes) and
"hazardous constituents" (Appendix VIII
constituents) are significant and the change
would have significant economic impacts. If the
Agency intends to make such a significant change,
then the background data, justification and
rationale for the new approach should be
published and addressed in a separate rulemaking,
subject to public review and comments.
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In proposing to amend §§264.111(b) and 265.111(b) to
require that closure address hazardous constituents rather than
only hazardous waste constituents, the Agency addressed an
ongoing environmental concern about the distinction between
hazardous waste constituents and hazardous constituents.
"Hazardous waste constituent" is defined in §260.10 as "a
constituent that caused the Administrator to list the hazardous
waste in Part 261, Subpart D, of this chapter, or a constituent
listed in Table 1 of §261.24 of this chapter." Hazardous waste
constituents are therefore a limited number of hazardous
constituents that are included in Appendix VII or are
characterized as EP toxic. Hazardous constituents, in
contrast, include all constituents of concern to the Agency,
although not necessarily the basis for listing. Appendix VIII
includes a list of hazardous constituents of concern to the
Agency-
The Agency is amending the closure performance standard to
address the broader category of hazardous constituents for a
number of reasons. First, the hazardous waste constituents
identified in Appendix VII are not intended to provide an
exhaustive list of all hazardous constituents; rather, this
list represents some of the primary constituents of waste
streams that cause a waste to be listed. Therefore, requiring
an owner or operator to address only hazardous waste
constituents (i.e., the set of constituents included either in
Appendix VII or classified as EP toxic wastes) could result in
other hazardous constituents remaining at closure. For
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example, wastes that are hazardous only because they exhibit
hazardous characteristics as specified by Part 261 Subpart C
are not hazardous waste constituents and would not have been
subject to the previous closure performance standard. Because
the impacts of hazardous constituents on the environment are no
less serious than those of hazardous waste constituents, the
Agency proposed to revise the closure performance standard to
ensure that all contamination is adequately addressed at
closure.
Second, the change in the language makes the closure
performance standard consistent with other RCRA regulations.
For example, the Part 264 Subpart F ground-water protection
standards require the owner or operator to monitor for
hazardous constituents included in Appendix VIII and to
.institute corrective action whenever any hazardous constituents
exceed the specified ground-water protection standards. (See
40 CFR 264.98.)
Third, the revised language is consistent with the
provisions of HSWA. Section 206 of HSWA (RCRA Section 3004(u))
specifies explicitly that owners or operators must conduct
"corrective action for all releases of hazardous waste or
constituents from any solid waste management unit at a
treatment, storage, or disposal facility seeking a permit ..."
(emphasis added). Congress explained that" the purpose of the
provision in HSWA was to require facilities to "take all
appropriate action to control and cleanup all releases of
hazardous constituents from all solid waste management
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units ..." (emphasis added).1 Similarly, Section 222 of HSWA
requires EPA to "consider factors (including additional
constituents) other than those for which the waste was
listed..." Thus, Congress has itself expressed a concern for
hazardous constituents, and this revision is consistent with
legislative intent.
III.A.4.2 Include Removal of Sludges in Performance
Standard
The closure performance standard should be
further amended to include a new paragraph
clarifying that removal of sludges and
contaminated soils may be necessary to meet the
performance standard.
The Agency agrees that removal of sludges and contaminated
soils may be necessary to comply with the closure performance
standard. This requirement is addressed in the proposed
amendments to §§264.114 and 265.114.
III.A.4.3 Protect vs. Prevent
The wording change from "protect human health
and the environment" to "prevent threats to human
health and the environment" is difficult to
support at face value. Both phrases lack clarity
to allow projecting what steps will be necessary
to meet the closure performance standard; the
word "prevent" appears to drive to a non-cost
effective solution. A risk assessment approach
accounting for site-specific aspects would be
more appropriate and should be encouraged.
The Agency has reconsidered the language in Parts 264 and
265 and now believes that the standard in §265.111 "protect
1 Conference Report, Hazardous and Solid Waste
Amendments of 1984, U.S. House of Representatives, October 3
1984, p. 92. '
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human health and the environment" -- should be retained and the
language in §264.111 should be changed to conform to it. The
language in the performance standard in the Part 265 interim
status regulations is the standard that is established in RCRA
itself.
III.A.4.4 Use of the Word "Minimize"
The word "minimize" should be deleted from the
performance standard. No case exists in which
merely minimizing runoff from a hazardous waste
site would be acceptable.
By using the word "minimize" in the performance standard,
the Agency intended to increase the flexibility of the standard
while still incorporating facility-specific requirements. In
certain circumstances it may not be possible to eliminate
completely all contaminated runoff from the .facility; yet in
some of those cases, minimizing runoff would be sufficient to
protect human health and the environment.
III.A.5 Final Rule
After analyzing the comments, the Agency recognizes that
conforming the standard in §264.111 to that in §265.111 is more
appropriate. Therefore, the final rule amends §264.111 to
replace the phrase "prevent threats to human health and the
environment" with "protect human health and the environment."
A technical correction was made to delete the reference to
§265.178 from the proposed §265.111(c) because §265.178 does
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not contain process-specific standards. The balance of the
proposed rule was adopted as the final rule.
III.B Requirement to Furnish Closure and Post-Closure Plans
to the Regional Administrator
§§264.112(8), 264.118(c), 265.112(a), 265.118(b)
III.B.I Synopsis of Previous Regulation
Sections 264.112(a), 264.118(a), 265.112(a). and
265.118(a) previously required the owner or operator of a TSDF
to keep a copy of the most recent closure and post-closure
plans and all revisions at the facility until closure was
completed and certified. Post-closure plans were required to
be retained at the facility until the post-closure care period
began.
III.B.2 Summary of Proposed Rule
The Agency proposed to drop the requirement that the
closure and post-closure plans be kept at the facility and to
require'instead that such plans be furnished to the Regional
Administrator upon request, including request by mail. In
addition, the p.lan would be required to be provided during site
inspections, on the day of inspection.
III.B.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that a hazardous
waste management facility may not be properly equipped to
maintain files and safeguard closure and post-closure plans and
that the plans could be kept more efficiently and safely at the
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owner's or operator's nearby offices. EPA, however, was
concerned that the plans be available on-site to an inspector
on the day of inspection, in order to ensure that the plan is
consistent with facility conditions. This provision was
consistent with the requirements on the availability of records
established in §§264.74 and 265.74.
III.B.4 Comments and Responses
A few commenters generally supported the proposal to drop
the requirement that closure and post-closure plans be kept at
the facility and to instead require that plans be furnished
upon request and be provided during site inspections. More
specific comments addressing the proposal are discussed in the
following three sections.
III.B.4.1 Requiring Plans to be On-Site is Duplicative
For permitted facilities, the Agency already
has on file a copy of the closure and
post-closure plans and requiring an additional
copy is duplicative and unnecessary.
All closure plans submitted in conjunction with
a Part B permit or upon request will be on file
with the Agency. Once a plan is on file, the
operator should not be required to make the plan
available on request or on the day of inspection.
The Agency agrees that for facilities with approved
closure and post-closure plans on file, it is not necessary to
make them available on the day of inspection. For those
interim status facilities without approved plans, however, it
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is important that the plans be available on the day of
inspection.
III.B.4.2 Need for Plans On-Site for Inspections
If the proposal is adopted, some corporations
may decide to keep the closure plans at an office
a far distance from the facility- This would
make unannounced inspections difficult. The
proposal should therefore be amended to require
plans to be kept at the facility during closure.
The Agency does not agree that allowing the closure plan
to be maintained at a location other than the facility will
make unannounced inspections difficult. In the case of an
interim status facility without an approved plan, the Agency
agrees that it should be available on the day of inspection.
The final rule makes this requirement explicit for interim
'status facilities. Even in the event of an unannounced
inspection, the plan must be available at the facility.
Therefore, an owner or operator or an interim status facility
must take into accounr the time it will take to deliver the
plan to the facility when determining where to maintain the
plan.
For permitted facilities or interim status facilities with
approved plans, as discussed above in Section III.E.4.1, the
Agency does not consider it necessary to require the plans to
be at the facility. Because the Agency must have the most
recent plan (including approved plan modifications) on file, an
inspector already will have the documents necessary for
reference.
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III.B.4.3 Emergency Response Plans Should Be Kept On-Site
Because the closure plan contains pertinent
sections for daily operation and emergency
response requirements, these sections, at a
minimum, should be kept onjsite.
Although closure plans may address daily operation and
emergency response, those activities are also subject to
explicit requirements in Parts 264 and 265 Subparts B, C, and
D. In particular, the following reports and records must be
maintained at the facility at all times: waste analysis plans
(§§264.13 and 265.13); facility operating record (§§264.73 and
265.73); facility inspection schedules (§§264.15 and 265.15);
description of personnel training program (§§264.16 and
265.16); and contingency plans outlining emergency procedures
and arrangements with local police, fire, and emergency
response teams (§§264.50 et seq.; 265.50 et seq.). The
location of the closure plan will not affect the availability
of these other plans and procedures.
III.B.5 Final Rule
After analyzing the comments received on the proposal to
require owners or operators to furnish plans to the Regional
Administrator upon request and make them available on the day
of inspection, the Agency revised the proposed rule. The final
rule specifies, in §§264.112(a), 264.118(c), 265.112(a), and
265.118(b)) that until final closure is completed and properly
certified, the most current plans must be furnished to the
Regional Administrator upon request, including request by
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mail. In addition, for interim status facilities without
approved plans, §§265.112(a) and 265.118(b) require the owner
or operator to also furnish the plans during site inspections,
on the day of inspection, to any officer, employee or
representative of the Agency who is duly designated by the
Administrator.
III.C Clarification of Contents of Closure Plan
§§264.112(b), 265.112(b)
III.C.I Synopsis of Previous Regulation
Sections 264.112(a) and 265.112(a) had specified that the
closure plan was required to describe how and when a facility
would be partially closed, if applicable, and finally closed.
The regulations did not specify the level of detail required in
the closure plan.
III.C.2 Summary of Proposed Rule
The Agency proposed to clarify the types of information
that should be included in the closure plan.. First, the
proposed rule required the owner or operator" to include in the
plan a detailed description of the procedures that would be
used during partial closures as well as final closure.
Second, the proposed rule elaborated on the level of
detail to be included in the closure plan. For example, the
plan must describe procedures to be used to handle inventory at
partial and final closure including methods of removing,
treating, transporting, and disposing of wastes. In addition,
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the plan must address the activities necessary to shut down
operations and to ensure that partial and final closures
satisfy the closure performance standards. Because these
activities could include ground-water monitoring, leachate
collection, and run-on and run-off control, the Agency proposed
to add the requirement in §§264.112(b)(5) and 265.112(b)(5)
that the plan describe all such environmental protection
activities (e.g., ground-water monitoring, leachate
collection), that are applicable.
III.C.3 Rationale for Proposed Rule
The closure plan is the mechanism for ensuring that an
owner or operator has made adequate preparations for closing a
hazardous waste management unit or a facility in a manner that
will protect human health and the environment. Partial closure
activities are as important as final closure for ensuring
long-term protection of human health and the environment.
Therefore, it is important that the closure plan address in
detail how partial closure or final closure will satisfy the
Subpart 'G and the process-specific regulations. The proposed
amendments to §§264.112(b) and 265.112(b) therefore required
that the closure plan must address explicitly all partial as
well as final closure activities.
The increased level of detail in the plans enables the
Agency to evaluate the adequacy of the plans. Furthermore, the
closure plan is the basis of the closure cost estimate, which
in turn is the basis for the financial assurance mechanism.
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Implementation experience has shown that poorly detailed plans
are accompanied by inadequate cost estimates. The Agency
believes that requiring detailed closure plans will help ensure
that the cost estimate is accurate, and therefore that the
financial assurance mechanism is adequate.
III.C.4 Comments and Responses
A number of commenters criticized the proposed rule.
Other commenters recommended alternatives or limited changes.
Still other commenters suggested that even more extensive
detail should be required in the closure plans.
III.C.4.1 Level of Detail Required
The current level of detail required in closure
plans is more than adequate for estimating
closure costs.
The proposed amendments require excessive
amounts of detail in closure plans for facilities
that will remain open for another 20 to 30 years.
The Agency does not agree that requiring an owner or
operator to include in the plan a detailed description of the
procedures that will "be used to remove, transport, treat, or
dispose of hazardous waste is unnecessary. One of EPA's goals
in regulating owners and operators of TSDFs is to ensure that
owners provide adequate financial assurance for closure of
TSDFs. The Agency considers highly detailed closure plans
essential for accurately estimating costs of closure. Because
the level of financial assurance is based upon the cost
estimate, it is crucial that the Agency be able to evaluate the
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adequacy of the plans and cost estimates. Furthermore,
financial assurance must be established immediately, even if
the facility is expected to remain open for 20 to 30 years.
In the past, existing closure plans sometimes did not
provide sufficient detail for a thorough evaluation. For
example, the Agency has received closure plans only two or
three pages in length, that the owner or operator believed were
adequate to satisfy the previous regulation. An Agency survey
of 200 TSDFs revealed that no facility had a completely
adequate plan and none had accounted for all the necessary cost
components in the cost estimates.2 Similarly, reviewsoof
selected State hazardous waste management activities revealed a
low level of compliance with requirements for preparing closure
and post-closure plans and cost estimates.3 The detailed
requirements in the final rule are intended to ensure that
satisfactory plans are prepared.
2 Survey of Compliance with Closure and Post-Closure
Care Plan and Cost Estimate Regulations, (Draft Report), June
10, 1983, ICF Incorporated.
1 Inspection, Enforcement, and Permitting Activities at
New Jersey and Tennessee Hazardous Waste Facilities,
GAO/RCED-84-7, June 22, 1984, Report to the Chairman,
Subcommittee on Commerce, Transportation and Tourism; Committee
on Energy and Commerce; House of Representatives, U.S. General
Accounting Office. Interim Report on Inspection, Enforcement,
and Permitting Activities at Hazardous Waste Facilities,
GAO/RCED-83-241, September 21, 1983. 19 pages. Report to the
Chairman, Subcommittee on Commerce, Transportation and Tourism;
Committee on Energy and Commerce; House of Representatives,
U.S. General Accounting Office.
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III.C.4.2 Difficulties in Revising Detailed Plans
An owner or operator may be locked into a
detailed closure plan that may be difficult if
not impossible to alter as a result of proposals
to classify changes to the plans as permit
modifications and to prohibit changes to the plan
after notification of closure.
Updating detailed closure plans will be costly,
and it is likely that updates will be required
frequently due to advances in technology and
changes in regulations.
Although detailed plans will require owners and operators
to describe the technology they intend to employ, the intent of
the requirement is not to lock owners or operators into using
outmoded technologies, but rather to ensure that the amount of
financial assurance reflects the cost of the technologies
chosen. The Agency considers it unlikely that significant
technological changes will occur that would require owners or
operators to revise their plans frequently.. The types of
changes that would require a revision to the closure plan, such
as changes in the facility design, changes in the cover design,
or a shift from off-site to on-site management of wastes at
closure, are unlikely to occur frequently at the same
facility. Furthermore, the Agency does not expect or intend
that an owner or operator will revise the plan for
insignificant changes, such as substitution of one off-site
facility or contractor used to install the final cover for
another, when-such changes do not affect the costs of closure.
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III.C.4.3 Limitations on the Need for Detailed Plans
An alternative to the proposed amendments is
applying the detailed closure requirements only
to hazardous waste management units that are
expected to close during the life of the permit.
During a facility's active life, individual
attributes of each facility as well as
technological advances will focus attention on
those areas where closure and post-closure care
must be modified to ensure protection of health
and the environment. The details of these
protective measures will likely be site-specific
and vary significantly over the life of a
facility. The current level of detail required
in the regulation is appropriate. Plans should
be updated, with appropriate implementation
detail, 90 days to one year before forecasted
closure.
The Agency does not agree that the scope of the
requirement should be limited either £0 a specific time before
closure or to a specific set of facilities. Postponing the
preparation of a detailed closure plan until closure is
imminent could allow facilities without adequate financial
assurance to escape scrutiny. If a facility owner or operator
was to file for bankruptcy before a detailed closure plan was
prepared, the level of financial assurance based on a less
adequate closure plan could no''longer be adjusted and adequate
funds might not be available for proper closure of the
facility. A similar problem is associated with the argument
that detailed plans should be prepared and submitted only for
those hazardou-s waste management units at the facility
scheduled to close during the life of the permit rather than
for the entire facility- In that situation, if an owner or
operator filed for bankruptcy the Agency could only be certain
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that adequate financial assurance was available for those units
scheduled to close; cost estimates for the remainder of the
facility would be based on a general closure plan.
III.C.4.4 Additional Details in the Closure Plan
A number of commenters supported including additional
detail in closure plans, although some noted that updating more
detailed plans could be more expensive than updating plans
requiring less detail. One commenter particularly supported
the inclusion of a requirement to address contamination from
hazardous waste storage tanks, based on his state's experience
with that type of hazardous waste storage unit. Other
commenters made the following points:
EPA should require additional detail to .
determine a "clean" level for both soil and
ground water for closure.
The rule should require: a determination of
vertical and horizontal extent of soil
contamination prior to any excavation; a
requirement that monitoring wells be installed if
soil contamination is detected below the water
table; and guidelines for estimating potential or
probable contamination caused by operation of
hazardous waste management units.
The plan should provide a set of construction
specifications, because such detail is necessary
to arrive at an accurate cost estimate.
Although the EPA is focusing much attention on the
question explicitly or implicitly posed by these
commentershow clean is clean?it was not the Agency's intent
to address this issue directly in this rulemaking. The Agency
does agree that a closure plan that includes construction
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specifications would provide the basis for accurate cost
estimates and in some cases may be necessary; in most cases,
however, somewhat less detail will be satisfactory.
III.C.5 Final Rule
The Agency has decided to adopt the rule as proposed.
III.D Description of Removal or Decontamination of Facility
Structures and Soils in Closure Plan
§§264.112(b)(4). 265.112(b)(4)
III.D.I Synopsis of Previous Regulation
Sections 264.112(a)(3) and 265.112(a)(3) previously
required owners or operators to include a description of the
steps needed to decontaminate facility equipment at closure.
III.D.2 Summary of Proposed Rule
The proposed amendment expanded the previous provision to
require that the closure plan also include a description of
^
steps to decontaminate or remove "contaminated facility
structures and soils.
III.D.3 Rationale for Proposed Rule
The previous Subpart G regulations explicitly required the
closure plan to address decontamination only of facility
equipment. Even the best-run facility may have some drips or
spills, that may contaminate the soil, as part of routine
operations. Although soil cleanup is implicitly required as
part of the closure performance standard, the Agency proposed
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to require explicitly in §§264.112(b)(4) and 265.112(b)(4) that
the closure plan address procedures for decontaminating
facility soils and structures as well as equipment.
Because responsible owners and operators will clean up
drips and spills associated with hazardous waste management
activities as part of routine operations, many of the
activities described in the closure plan for removing or
decontaminating soils should be similar to those conducted
during the operating life of the facility. For some types of
facilities, however, such as tanks or container storage
facilities, soil testing may not be a routine activity. For
i
these types of facilities in particular it is important that
the plan describe in detail the decontamination procedures that
will be used at closure. Therefore, the Agency proposed
§§264.112(b)(4) and 265.112(b)(4) to specify that the plan must
include a discussion of methods for decontaminating the
facility structures, containment systems, and soils in a manner
that satisfies the closure performance standard. The
description must include (but not be limited to) sampling and
testing procedures and criteria for evaluating contamination
levels.
III.D.4 Comments and Responses
One commenter favored the proposal because it appears to
allow owners or operators flexibility in designing
cost-effective cleanups based on site-specific needs.. Other
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commenters requested additional clarification concerning the
scope and intent of the proposed rule.
III.D.4.1 Clarification Needed
The Agency should clarify the term "containment
system."
Use of the word "all" is more inclusive than
EPA likely intended (e.g., a leachate collection
and monitoring system would be considered con-
taminated, subject to removal or decontamination).
EPA needs to amend the language to specify that
closure plan descriptions of removal and
decontamination do not apply to containment
system components, equipment and structures
integral to the design, integrity and
post-closure management of the site.
The preamble to the proposed rule states that
the requirement includes contamination resulting
from process residues, drips, spills, and
deposition of emissions. We believe that the
RCRA closure and post-closure requirements apply
only to contamination which occurs as a result of
hazardous waste treatment, storage, or disposal.
Releases from process areas, product storage
tanks, and inactive solid waste disposal areas
may be subject to corrective action under CERCLA
or under Section 206 of HSWA. These areas should
not be included in closure and post-»closure
plans, because the areas would not have been
subject to interim status or a Part B permit.
EPA did not intend the rule to be interpreted as strictly
as the commenters suggest. EPA intends §§264.112(b)(4) and
265.112(b)(4) to be understood reasonably in conjunction with
all of Subpart G and the associated process-specific closure
requirements. -Thus, an owner or operator is not expected to
remove structures that need to be maintained and used after
closure.
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The Agency agrees that the plan must address soil
contamination only from hazardous waste management operations
and does not intend the requirements to extend beyond RCRA
jurisdiction.
III.D.5 Final Rule
The Agency is adopting the rule as proposed.
III.E Requirement to Estimate the Expected Year of Closure
§§264.112(b)(7) and 265.112(b)(7)
III.E.I Synopsis of Previous Regulation
h
Section 264.112(a)(4) previously required each owner or
operator of a permitted TSDF to include an estimate of the
expected year of closure in the closure plan.
III.E.2 Summary of Proposed Rule
The Agency proposed to amend the regulation to require an
expected year of closure only for: (1) owners or operators of
permitted facilities who use trust funds to establish financial
assurance under §264.143 and whose facilities are expected to
close prior to permit expiration; (2) for owners or operators
of interim status facilities that do not have approved plans;
and (3) for owners or operators of interim status facilities
who use trust funds and whose remaining operating life is less
than 20 years.
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III.E.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that estimating
the expected year of closure is unnecessarily burdensome for
owners or operators of on-site TSDFs, such as storage and
treatment facilities associated with industrial processes. For
these types of facilities, predicting the date of closure may
be difficult because closure of the hazardous waste facility is
likely to be determined by the primary industrial activity with
which the facility is associated. In the case of owners or
operators using a trust fund to provide financial assurance,
however, an estimate of the expected year of closure is
neces'sary to enable both the owners or operators and EPA to
determine whether appropriate payments are being made into the
trust fund.
Having the expected year of closure in .these plans will
provide the Agency with valuable information. Knowing the
expected year of closure will help the Agency schedule review
of closure plans and anticipate closures. Knowing the expected
year of closure will also aid inspectors while conducting site
visits.
For interim status facilities using trust funds, including
the expected year of closure in the closure plan is important,
particularly if the remaining operating life is less than
twenty years. If the expected operating life of the facility
is shortened, payments into the trust fund must be increased.
The Agency recognizes that many interim status facilities
will not have approved closure plans prior to closure and, as a
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result, the Agency will not know the expected year of closure.
The closure plan must be furnished to the Regional
Administrator upon request, and provided during on-site
inspections. Therefore, the Agency will have an opportunity to
look -at the plan during inspections and verify that the
expected date of closure is consistent with facility
operations. For example, if an inspection reveals that the
expected date of closure is imminent, the Agency may wish to
schedule additional inspections and verify the adequacy of the
cost estimates and financial assurance.
III.E.4 Comments and Responses
Some commenters supported the proposal to require only
owners or operators who .use trust funds to estimate the
expected year of closure in the written closure plan. However,
a number of commenters recommended changes to the proposed rule.
III.E.4.1 Difficulty Estimating Year of Closure
The proposed amendment requiring an estimate of
a specific year of closure should be dropped.
Instead, an estimated general time period of
closure should be required (e.g., "within six
months after the receipt of final waste for any
hazardous waste management unit").
Estimation of closure should relate to the
permit cycle or to the permit review cycle.
Estimation of year of closure otherwise may be
difficult due to new technology, economic
climate, alternative treatment, etc.
The requirement to estimate the expected year
of closure should apply only to facilities that
use a trust fund to demonstrate financial
responsibility, and not to all interim status
facilities without approved closure plans. Most
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estimates of a closure date for on-site treatment
or storage facilities would be unrealistic, since
the closure date is likely dependent on the
continued operation or cessation of the
associated industrial process. This same
reasoning applies to every interim status
facility, regardless of whether the closure plan
has been "approved."
The purpose of the proposed rule was to eliminate
unnecessary and burdensome requirements. However, the Agency
still believes it is necessary to retain the requirement to
include an estimate of the expected year of closure in the
closure plan for those owners or operators using a trust fund.
Under the provisions of.§§264.143(a)(3) and 264.145(a)(3),
»
an owner or operator using a trust fund to demonstrate
financial assurance for a permitted facility must make payments
annually over the term of the RCRA permit or over the remaining
> *
operating life of the facility as indicated in the closure
plan, whichever period is shorter. Allowing the trust fund
payments to be based on the permit life could result in an
underfunded trust fund, if the facility closes earlier than the
end of the permit life.
The proposed regulation also specifically addressed the .
case of facilities that use trust funds "and that are expected
^to close prior to permit expiration". If an owner or operator
decides to close prior to the termination of the permit, the
owner or opera-tor must revise the estimated year of closure in
the closure plan.
Similarly, for interim status facilities under
§§265.143(a)(3) and 265.145(a)(3), the trust fund pay-in period
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is 20 years or the remaining life of the facility, whichever
is shorter. Although the Agency may not review closure plans
in-depth until the final payment is issued, inspectors could
verify that the closure date in the plan is consistent with the
trust-fund pay-in schedule. Therefore, an estimate of the
expected year of closure must be included in the closure plan
for those owners or operators using trust funds for financial
assurance.
All interim status facilities were required to prepare
closure plans by May 1981, including an estimated year of
closure. Thus, most owners or operators should already have
such an estimate for their facilities. The Agency does not
agree that the owners or operators of facilities associated
with production processes will always find it particularly
difficult to estimate the expected year of closure. Usually,
ordinary business planning should provide such an estimate. In
the other situations, the owner or operator of the facility
will be required to provide the best estimate that can be
developed based on current knowledge about the facility.
III.E.J5 Final Rule
After analyzing the comments received on the proposal to
limit the requirements to estimate the expected year of closure
to certain owners or operators, the Agency has decided to adopt
the proposed rule.
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III.F Amendments to Closure and Post-Closure Plans
§§264.112(c), 264.118(d), 265.112(c), 265.118(d)
III.F.I Synopsis of Previous Regulation
Sections 264.112(b) and 265.112(b) previously allowed an
owner or operator to -amend the closure plan at any time during
the active life of the facility. Active life was defined for
purposes of §§264.112(b) and 265.112(b) as "that period during
which wastes are periodically received." The owner or operator
was required to amend the plan whenever changes in operating
plans or facility design affected the closure plan, or whenever
there was a change in the expected year of closure. Also an
*
owner or operator was reguireo! to request a modification of the
closure plan when requesting a permit modification to authorize
a change in operating plans or facility design. Amendments to
the closure plan were required to be made within 60 days after
the change in plans or design occurred.
III.F.2 Summary of Proposed Rule
The Agency proposed to revise the requirement to clarify
that closure plans may only be modified prior to notification
of closure, or during closure if unexpected occurrences require
a modification of the approved plan. The requirements
concerning amendment of the closure plan were also moved to
§§264.112(c) and 265.112(c). In addition, to be consistent
with the proposed changes to §§264.112(b)(7) and 265.112(b)(7)
discussed in the preceding section, only facilities required
to include an expected year of closure in the closure plan were
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required to amend the closure plan for a change in the expected
year of closure.
The Agency also proposed a number of procedural changes to
the Parts 264 and 265 requirements for modifying closure and
post-closure plans. The proposed §§264.112(c) and 264.118(e)
clarified that an owner or operator of a permitted TSDF must
follow the Part 270 permit modification procedures to request a
change in the closure or post-closure plan. An owner or
operator of a permitted facility or an interim status facility
with an approved closure or post-closure plan was required to
submit a written request to the Regional Administrator for
approval of a closure or post-closure plan modification within
60 days prior to a change in facility design or operation, or
within 60 days after an unexpected event had occurred that
affected the plans. If an unexpected event that affected the
closure plan occurred during partial or final closure, a
request to modify the closure plan was required to be made
within 30 days of that event.
III.F.3 Rationale for Proposed Rule
»
The previous regulations allowed the closure plans to be
modified during the "active life" of the facility, which was
defined as the period during which wastes were received.
Because active-life was formally defined in the proposal to
include the closure period, §§264.112(c) and 265.112(c) were
also proposed to limit modification of closure plans to the
period prior to the notification of closure, whichever is
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later, unless an "unexpected event" occurs during the partial
or final closure period. This is consistent with the intent of
the previous rule.
The Agency previously considered approved plans to be
incorporated into the permit conditions. To clarify this
understanding, the Agency proposed to clarify in §§264.112(c)
and 264.118(e) that an owner or operator of a permitted
facility must use the procedural requirements of Part 270 to
modify the closure or post-closure plan. Owners or operators
of interim status facilities with approved plans were required
by the proposed rule to submit a- request to the Regional
Administrator to amend the plan.
Finally, the Agency proposed deadlines for requesting plan
modifications to ensure that all requests are made in a timely
fashion and that the level of financial assurance is adjusted,
if necessary.
III.F.4 Comments and Responses
III.F.4.1 Deadline for Acting Upon Request for Modifications
EPA should establish a definite time period for
Regional Administrators to act upon written
requests for modifications. If, "for example,
after 60 days the Regional Administrator has not
acted, the modification should be automatically
approved.
The Agency believes that imposing a deadline on the
Regional Administrator to act upon a request to modify a plan
would undermine the Subpart G regulations. To ensure adequate
protection of human health and the environment, the Regional
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Administrator must review changes to plans. Therefore, the
Agency does not agree that any plan modification should be
approved automatically.
III.F.4.2 Modifications During the Closure Period
The proposed rule would not allow changes to
the plans after notification of closure unless
unexpected events occur during the partial or
final closure period. The exception for
"unexpected occurrences" during closure should be
broadened to include incorporation of optimum or
superior closure methods identified after
notification.
Modifications to the closure plan during
closure should only be required if the
"unexpected event" adversely affects human health
or the .environment.
If an "unexpected event" occurs during the
closure period, closure activities should not be
discontinued pending plan approval unless the
proposed activities do not protect human health
and the environment.
The Agency disagrees that the exception for "unexpected
occurrences" should be broadened to include "optimum" or
"superior closure methods." By the time the owner or operator
notifies the Agency of impending closure, the owner or operator
will have had sufficient opportunity to have identified and
incorporated new or superior closure methods into the closure
plan. The Agency supports use of the best available
technology, but insists that it be implemented in a timely
fashion and that closure be completed as soon as possible after
notification. Finally, requiring the Regional Administrator to
determine whether an alternative closure method is "optimum11
potentially could delay closure.
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The Agency disagrees with the conunenter who argued that
modifications to the closure plan during closure are necessary
only if the "unexpected event" affects human health and the
environment. The purpose of the closure plan is to describe
the activities that will be conducted at closure in the event
that a third party is required to conduct closure and to serve
as a basis for cost estimates for financial responsibility. In
addition, because the purpose of the closure certification is
to ensure that closure has been performed in accordance with
the approved closure plan, the plan should be modified to
reflect the activities that are performed.
If an "unexpected event" that affects the closure plan
occurs during closure, it is important that the revised plan "be
reviewed and approved to ensure that the new activities satisfy
the closure performance standard. The Agency does not intend
that all closure activities be discontinued pending approval of
the revised closure plan. As long as the activities undertaken
satisfy the closure performance standards, these activities
will be subsequently approved. Only if the activities are
later determined to be inconsistent with the closure
performance standard will additional activities be required.
III.F.4.3 Contingent Plans for Interim Status Facilities
Modifications to an approved plan should not be
allowed when closure is actually in progress,
unless unexpected events occur during closure
which would require a change in the closure
plan. However, some "unexpected" events during
closure, such as the discovery of contaminated
soil, could actually be anticipated for certain
facilities, such as unlined or single-lined
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surface impoundments. Therefore the requirements
for contingency plans should be extended to
interim status facilities.
The Agency agrees that in some cases the owner or operator
should be able to anticipate events such as the discovery of
contaminated soil before the commencement of partial or final
closure. The need for contingent closure plans for unlined
interim status facilities in anticipation of extensive soil
contamination, however, will be addressed in a separate
regulatory package amending §§265.228(c) and 265.258(c).
The rule proposed on March 19, 1985, however, did require
owners or operators of surface impoundments and waste piles
required to close as landfills but not otherwise required to
prepare contingent plans to revise their plans as soon as this
determination was made. The Agency proposed in §§264.112(c),
264.118(e), 265.112(c), and 265.118(d) that owners or operators
revise their closure and post-closure plans whenever changes in
facility design or operation affect the plans. If an owner or
operator or the Regional Administrator determines prior to
closure that a surface impoundment or waste pile must be closed
as a landfill, this would be considered a change in facility
design or operation and would require a change in the closure
plan within 60 days of the determination. Similarly, if this
determination was made at the time of closure, the owner or
operator would be required to revise the plan.
To clarify the applicability of the modification
requirements and to make explicit that units or facilities
closed as landfills must have post-closure plans, the final
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rule states explicitly in §§264.112(c)(3). 265.112(c)(2),
264.118(a), and 265.118(c) that an owner or operator of a
surface impoundment or waste pile not otherwise required to
prepare contingent closure and post-closure plans must amend
the closure plan and prepare a post-closure plan if a
determination is made that the surface impoundment or waste
pile must be closed as a landfill. The closure plan must be
amended within 60 days of the determination that the facility
must be closed as a landfill, or within 30 days if the
determination is made during closure. A post-closure plan must
be prepared within 90 days of the determination. The Agency is
granting owners or operators-90 days to prepare the
post-closure plans to allow the additional time they may need
to develop plans for post-closure care.
The Agency also now believes it is important to explicitly
grant the Regional Administrator the authority to request
modifications to the closure and post-closure plans. The final
rule adds in §§264.112(c)(4), 265.112(c)(4), 264.118(d)(4) and
265.118(d)(4) that the Regional Administrator may request
modifications to the closure or post-closure plan if a change
has be.en made in facility design or operation or an "unexpected
*
event has occurred during closure that affects the plans. For
example, if a facility inspection reveals extensive soil
contamination at a storage surface impoundment that would
preclude "clean closure," the Regional Administrator could
request a modification to the closure plan and require that a
post-closure care plan be submitted.
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III.F.4.4 Modification Procedures
The major modification procedure is too
cumbersome for minor changes, such as a change in
the type of off-site treatment to be used or
development of an improved method of decontamina-
tion or removal, that are to be made just prior
to or during closure. This unnecessarily delays
modifications of closure plans and imposes an
undue burden on owners or operators unless the
Agency clearly specifies that such modifications
are minor modifications.
Changes in an estimated closure date should
require notification to EPA, but should not be
considered a major permit modification. Section
270.42 considers a change in the estimated
closure date a minor modification.
The requirement to submit a, written request to
amend the closure plan for a change in the
expected year of closure is impractical and
should be deleted.
The Agency agrees that a change in the expected date of
closure is a minor permit modification under §270.42(g). For
interim status facilities with approved pl.ans, the final rule
specifies that the public participation procedures of
e
§§265.112(d) and 265.118(f) apply only if the change is'a major
modification according to the criteria in §§270.41 and 270.42.
As part of a forthcoming rulemaking on permit modifications,
EPA is intending to expand the definition of "minor"
modifications.
The Agency disagrees that submitting a written request to
amend the closure plan for a change in the expected year of
closure is overly burdensome. First, only those owners or
operators required to include the expected year of closure in
the closure plan are required to submit written notice of any
change in plans (see Section III.E of this document). Second,
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because a change in the estimated year of closure may affect
the adequacy of the trust fund, the Agency considers it
important that the owner or operator report any change in the
expected date of closure. Finally, the Agency does not
consider it likely that the expected year of closure will
change frequently over the life of the facility, or that
submitting a request for a modification is a costly requirement,
III.F.4.5 Public Participation
If the owner or operator of an interim status
facility has an approved closure plan and seeks
to amend the plan, the opportunity for public
comment will be discretionary under the proposed
rule, regardless of the significance of the
proposed modification. For permitted facilities,
major modifications to closure plans require
public notice' unless the modification request is
denied. The same procedure should be followed
during interim status; substantial changes to
approved closure plans must be subject to public
review.
As long as the final closure plan is consistent
with the permit application, no further public
hearings should be necessary. Significant
changes, however, should be subject to a further
public hearing.
The Agency agrees that the modification procedures for
interim status facilities with approved closure and
post-closure plans should be consistent with those for
permitted facilities. Therefore, the final rule amends
§§265.112(c) and 265.118(d) to specify that the criteria of
§§270.41 and 270.42 must be used to determine if a change to
the approved interim status closure or post-closure plan is a
major or minor change. Major changes to the plans are subject
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to the public participation procedures of §§265.112(d)(4) and
265.118(f); minor changes are not subject to the public
participation requirements. The Agency also agrees that if the
closure plan has not been modified since the permit was issued
or, for interim status facilities, since the plan was approved,
no additional hearings are necessary.
III.F.5 Final Rule
The Agency promulgated the final rule with several
changes. The proposed requirement remained that plans be
modified prior to the notification of closure, or during
closure if unexpected events occur during the closure period
that affect the plans. In addition, the final rule added a
provision that explicitly makes these requirements apply to
surface impoundments and waste piles required to close .as
landfills but not otherwise required to prepare contingent
plans. Owners or operators of such facilities are required by
§§264.112(c) and 265.112(c) to amend their closure plans if the
owner or operator or Regional Administrator determines that the.
unit must be closed as a landfill. In addition, §§264.118(a)
and 265.118(c) require owners or operators to prepare
post-closure plans within 90 days of the determination that the
unit must be closed as a landfill.
The Agency also added a number of procedural changes to
the Parts 264 and 265 regulations for modifying closure and
post-closure plans. To be consistent with procedures for
modifying plans for permitted facilities, §§265.112(c) and
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265.118(d) have been added to specify that the criteria of
§§270.41 and 270.42 must be used to determine if a change to
the approved interim status closure plan is a "major" or a
"minor" change. Major changes are subject to public
participation. The final rule also clarified that the amended
closure or post-closure plan must be submitted with the request
for a permit modification under Part 270 or the request to
amend an unapproved plan under Part 265.
Sections 264.112(c), 265.112(c), 264.11B(d) and 265.118(d)
have promulgated as proposed the deadlines for revising closure
and post-closure plans. 'All owners or operators must revise
their plans within 60 days prior to the proposed change, or
within 60 days after an unexpected event has occurred which has
affected the closure plan. If an unexpected event occurs
during the partial or final closure period, the owner or
operator must revise the plans within 30 days of the unexpected
event. The final rule added explicitly in §§264.112(c),
264.118(d), 265.112(c), and 265.118(d) that these deadlines
also apply to owners or operators of surface impoundments and
waste piles that have not prepared contingent plans, but must
»
close as landfills. One exception is that these owners or
operators have 90 days to prepare post-closure plans.
The final rule promulgated the procedures for revising
plans substantially as proposed. Owners or operators of
permitted facilities must submit their revised plans with a
request for a permit modification in accordance with "the
procedures of Parts 124 and 270. Owners or operators of
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interim status facilities with approved plans must also submit
their plans to the Regional Administrator for approval in
accordance with the deadlines in §§265.112(d) and 265.118(f).
Finally, the Agency promulgated §§264.112(c)(4),
264.118(d)(4), 265.112(c)(4)/ and 265.118(d)(4) as proposed to
allow the Regional Administrator to request modifications to
the plans and to require that the owner or operator submit the
modified plan within 60 days of the Regional Administrator's
request, or within 30 days if the change in facility conditions
occurs during partial or final closure.
III.G Notification of Partial Closure and Final Closure
§§264.112(d) and 265.112(d)
III.G.1 Synopsis of Previous Regulation
Section 264.112(c) required owners or operators of TSDFs
to notify the Regional Administrator "at least 180 days prior
to the date he expects to begin closure." A comment to the
regulation noted that the date when the owner or operator
expects to begin closure "should be within 30 days after the
date-on which he expects to receive the final volume of wastes."
III.G.2 Summary of Proposed Rule
The proposed rule made four changes. First, it clarified
that the notification requirements apply to partial closure of
hazardous waste disposal units as well as final closure of an
entire facility.
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Second, it reduced the 180-day closure notification
deadline for partial and final closure for all facilities, with
the exception of partial or final closure of interim status
land disposal units without approved closure plans. These
reduced deadlines conformed to the provisions in the ACCI
settlement agreement.
Third, the proposed rule defined "expected date of
closure" as:
"within 30 days after the date on which any
hazardous waste management unit receives the
known final volume of hazardous wastes or, if
there is a reasonable possibility that the
hazardous waste management unit will receive
additional hazardous wastes, no later than one
year after the date, on which the unit received
the most recent volume of hazardous waste..."
Fourth, the proposed regulation allowed the expected date
of closure to be later than 'one year after the unit received
the most recent volume of hazardous waste for a tank or
j
container storage facility if the owner or operator could
demonstrate to the Regional Administrator that the hazardous
waste management unit or facility had the capacity to receive
additional hazardous wastes and that tHe owner or operator had
taken and would continue to* take all steps to prevent threats
to human health and the environment.
III.G.3 Rationale for Proposed Rule
The Agency intends to ensure that partial closures as well
as final closure are conducted in accordance with an approved
closure plan. At the same time, the Agency agreed with the
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ACCI petitioners that subjecting partial closures of non-land
disposal facilities to notification requirements would be
unnecessarily burdensome. Therefore, the Agency proposed to
limit the notification requirement to partial and final
closures of hazardous waste disposal units and final closure of
non-disposal units. The Agency believed that for permitted
facilities, and for interim status facilities with approved
closure plans, it should be possible at the time of final
closure to evaluate whether previous closures of non-disposal
units have been in accordance with the approved plan. In the
case of interim status facilities that do not have approved
closure plans, the owner or operator would still be responsible
for ensuring that all partial closure activities of
incinerators, tanks, and container storage areas are consistent
with the closure performance standard of §265.111,
process-specific closure standards, and the subsequently
approved closure plan.
The Agency agreed with the ACCI petitioners that the
t
180-day notification period was unreasonable for some types of
facilities and longer than necessary for the Agency's purposes,
particularly in the case of facilities with approved plans and
interim status facilities with only container storage, tanks,
or incinerator units. In accordance with the settlement
agreement, the" Agency proposed to reduce the 180-day notice
period to 60 days for partial or final closure of a landfill,
land treatment, surface impoundment, or waste site unit at a
facility with a permit or with an approved closure plan under
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interim status. The notification requirement for final closure
of a permitted or interim status facility with only container
storage, tanks, or incinerator units remaining to be closed was
reduced to 45 days. The proposal retained the 180-day notice
period for partial and final closure of interim status land
disposal units without approved plans.
The proposed rule also sought to clarify the meaning of
the expected date of closure, by including a definition in the
regulation. The proposed rule defined the date when the owner
or operator "expects to begin closure" as within 30 days of the
date on which any hazardous waste management unit receives the
known final volume of hazardous wastes. If it is likely that
the unit will receive additional hazardous wastes, then the
expected date pf closure may be defined as no later than one
year after the date on which the unit received the.most recent
volume of hazardous wastes. To provide flexibility to
long-term storage operations, the Agency proposed to allow tank
and container storage facilities a one-year extension to the
deadline, subject to their satisfying specified criteria.
III.G.4 Comments and Responses
The Agency received a large number of comments on the
proposed amendments. A number of commenters disagreed with
particular aspects of the proposal, either recommending that
the deadlines for notification of closure be reduced or
extended. Several commenters argued that final closure should
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not be required in all cases for facilities that have not
received hazardous waste for one year.
III.G.4.1 Favoring or Disagreeing with Proposed Deadlines
The proposed changes in deadlines for
notification of closure should be adopted.
The notice period for interim status tanks,
container storage areas, and incinerators should
not be reduced to 45 days. While the shut down
of these activities may take less time than
disposal units, ancillary tasks (e.g., evaluating
soil contamination) will be as complex and take
as long a time. Full opportunity for public
notice and comment should be provided.
Owners or operators should be required to
notify the Agency of expected closures at least
90 days in advance of the starting date,
regardless of the type.of waste management unit.
It is unnecessary and arbitrary to assign
different notification dates for different types
of facilities. Adequate notification for
scheduling an inspection is a function of time
and not a function of type of facility. A 45-day
notification requirement should be adequate
advance notice for scheduling inspections.
The Agency believes that notification 60' days prior to the
date on which the owner or operator expects to begin closure of
a permitted surface impoundment, waste pile, land treatment or
landfill unit, or final closure of a permitted facility with
such a unit, will be sufficient to allow the Agency to take any
preliminary steps, such as a facility inspection, that may be
necessary. Because the approved closure plan is a permit
condition and all changes must be approved by the Regional
Administrator, no more than 60 days should be necessary.
Similarly, these deadlines should provide adequate notice for
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partial or final closure of an interim status facility with an
approved closure plan. The Agency also believes that
notification 45 days prior to the date on which the owner or
operator expects to begin closure of a facility with only
treatment or storage tanks, container storage, or incinerator
units is sufficient. Closure is less complex and will not
require as much advance notice. For interim status land
disposal units without approved plans, the Agency remains
convinced that a 180-day notice period is necessary to complete
the review of plans, which are likely to be complex.
In the case of facilities with only tanks, container
storage areas, or incinerators, the Agency recognizes that in
some cases the proposed 45-day notice period may be
insufficient to complete the review process, including public
notice and comment and public hearings. However, the owner or
operator will not be released from financial responsibility
until the closure plan has been approved and closure has been
certified in accordance with the approved plan. Therefore, if
subsequent information from a public hearing indicates that the
plan is inadequate, the owner or operator will be required to
supplement the closure activities. This approach is consistent
with the provisions of §265.112(e) that allow an owner or
operator to remove wastes and decontaminate or dismantle
equipment prior to notification of closure as long as these
activities are consistent with the subsequently approved plan.
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III.G.4.2 Identifying Final Volume of Waste
Closure requirements should only be triggered
when the owner or operator knows that a
particular shipment is the final shipment. The
language should be revised to read "after
receiving the known final volume."
The final rule provides that the date when an owner or
operator expects to begin closure must be either within 30 days
after the date on which any hazardous waste management unit
"receives the known final volume of hazardous wastes" or no
later than one year after the date on which the unit received
the most recent volume of hazardous waste. The requirement to
determine the last date that waste was placed in a unit should
not impose an unreasonable burden on owners or operators. The
operating record required under §§264.73 and 265.73
specifically requires that a record be kept of the description,
quantity, and dates of all hazardous wastes handled.
III.G.4.3 Removal of Waste Prior to Notification
The proposed rule implies that there is no
regulation preventing a facility from removing
wastes prior to notification.
The purpose of the notification deadline is to ensure that
the Agency has sufficient time to evaluate the closure plan,
inspect the facility, and ensure that closure will prevent
future threats to human health and the environment. This
requirement is' not intended to address the issue of removing
wastes prior to notification. Removal of hazardous wastes and
decontamination or dismantling of equipment is addressed in
Section III-H concerning §§264.112(e) and 265.112(e). Those
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sections allow hazardous wastes to be removed before
notification of closure.
III.G.4.4 Need for Flexible Deadlines
If a facility is in compliance with all
applicable requirements, there is no need for
meeting a closure deadline related to the timing
of receipt of volumes of wastes.
The proposed notification deadline is too
restrictive, especially for those facilities that
generate or receive wastes only intermittently.
More flexible requirements for notification
should be applied.
The "no later than one year after the date on
which the unit received the most recent volume of
hazardous waste ..." notification deadline for
partial or final closure is an arbitrary and
generalized requirement. Such conditions for
partial or final closure should be flexibly
applied on a waste-by-waste, facility-by-facility
basis as part of the individual, permit.
Requiring closure within one year of the last
receipt of waste is burdensome for those
facilities that only infrequently generare
hazardous wastes, but may need a storage area for
longer than 90 days. Assuming no such occurrence
within one year, the facility owner or operator
would need to notify for closure or request a
limited extension. On-site storage units,
although used intermittently, should be excluded
or else the one year period should be extended to
three years.
The notification of closure requirement could
discourage storage approaches that would promote
future resource recovery but would require more
than a year to materialize. For these cases,
rules should allow indefinite periods before
closure (as long as active maintenance and
monitoring programs are in place) or else closure
plans which will not discourage future recovery.
The provisions of §§264.112(d)(2) and
265.112(d)(2) could be interpreted as implying
that if a facility has not operated for one year,
the owner must initiate final closure. Either
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this one-year limit should be deleted or the rule
should be clarified.
Deadlines should be eliminated in §§264.112(d),
265.112(d), 264.113 and 265.113. It may be that
EPA's deadline concept is purposeful in the case
of commercial hazardous waste management
facilities, but in the case of industrial
facilities conducting hazardous waste management
incidental to a manufacturing enterprise, the
deadlines are unnecessary, irritating and
cumbersome.
The Agency agrees with the commenter that if the unit or
facility has the capacity to receive additional hazardous
wastes, then it may be appropriate to allow it to remain open
provided the owner or operator is in compliance with all
applicable requirements. In addition, the Agency no longer
believes that the variance provision should be limited to. tanks
and container storage. Therefore, §§264.112(d)(2) and
265.112(d)(2) were revised to allow the Regional Administrator
to grant ah owner or operator of any type of hazardous waste
management unit an extension to the one-year deadline for
notification of closure if the unit has additional capacity and
the owner or operator has taken and will continue to take the
necessary steps to prevent threats to human health and the
environment, including compliance with all permit and interim
status requirements.
The Agency does not believe, however, that facilities
should be exempt from the deadline requirements. To ensure
that the owner or operator does riot use the variance provision
as a way to prolong unnecessarily the commencement of closure,
the Agency is allowing the variance only if the facility has
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additional capacity available and the owner or operator
demonstrates compliance with all applicable regulations. EPA
believes facilities should be closed as soon as practicable
after the last receipt of hazardous waste, to avoid an
unnecessarily increased risk to human health and the
environment from inactive but unclosed units. For example,
leaks, entry of liquids from precipitation into landfills,
overtopping of dikes from sudden storms, and vandalism can be
limited or avoided if the facility is closed as soon as
practicable.
In the case of a storage facility filled to capacity but
intending to employ resource recovery that is not yet on-line,
the Agency would extend a variance to the closure deadlines if
the owner or operator could demonstrate that on-site .resource
recovery capacity would be available to handle these hazardous
wastes. Rather than giving approval to an extension solely on
the basis of compliance with applicable permit conditions, the
Agency believes it is necessary to review extension requests
individually to verify the situation at the facility requesting
the extension and ensure that the reasons for the extension are
valid. By granting extensions based on cause, the Agency can
apply the proposed rule more flexibly on a facility-by-facility
basis.
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III.G.5 Final Rule
The Agency is adopting the final rule substantially as
proposed. The date of "expected closure" must be within 30
days of the last known final volume of hazardous waste, or no
later than one year after the date on which the last volume of
hazardous waste was received if there is a reasonable
likelihood that additional hazardous wastes will be received.
The final rule extends the variance provisions to all hazardous
waste disposal units as follows: if a hazardous waste
management unit has the capacity to receive additional wastes
and is otherwise in compliance with all operating requirements,
the Regional Administrator may approve an extension to the
one-year limit. To ensure that the owner or operator does not
use the variance provision as a way to prolong unnecessarily
the commencement of closure, the Agency is allowing the
variance only if-the facility has additional capacity
available and the owner or operator demonstrates compliance
with all applicable regulations.
III.H Removal of Wastes and Decontamination or Dismantling of
Equipment
§§264.112(e) and 265.112(e)
III.H.I Synopsis of Previous Regulation
Sections 264.112 and 265.112 did not indicate whether
activities such as removing hazardous waste and decontaminating
or dismantling equipment could be undertaken prior to closure.
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III.H.2 Summary of Proposed Rule
EPA proposed to add new subsections, §§264.112(e) and
265.112(6), providing that nothing in §§264.112 or 265.112
"shall preclude the owner or operator from removing hazardous
wastes and decontaminating or dismantling equipment in
accordance with the approved partial or final closure plan at
any time before or after notification of partial or final
closure".
III.H.3 Rationale for Proposed Rule
The Agency agrees with petitioners in the ACCI litigation,
who argued that requiring 180-day notice before any hazardous
wastes can be removed or facility equipment can be dismantled
unreasonably interferes 'with production processes and
decisions. In particular, this requirement could be
unreasonably burdensome for owners or operators who frequently
replace tanks or containers as part of routine operations. In
addition, the Agency agrees with the petitioners that
postponing the removal of wastes for 180 days might be
environmentally unsound. Although the previous regulations did
not preclude an owner or operator from removing wastes or
dismantling equipment prior to notification of closure, the
Agency agreed to make this allowance explicit in the proposed
rule.
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IIT.H.4 Comments and Responses
In addition to a few commenters who agreed with the
proposed amendment, a number of commenters proposed the
following changes:
III.H.4.1 Relationship to Closure Plan
The final rule should clarify whether an
interim status facility without an approved
closure plan may remove hazardous waste and
decontaminate equipment prior to receiving
closure approval.
' Activities which are completed prior to closure
plan approval will be subject to the factual
content of the plan as finally approved and thus
may constitute a violation according to that
plan. Addition of the term "approved" closure
plan for interim status facilities will result in
post hoc judgments by regulatory authorities
that may render unacceptable activities which
were previously undertaken in good faith
compliance with the closure plan prior to its
submission for approval. The provision would
also discourage removal of hazardous wastes as
quickly as possible.
The proposed language concerning waste removal
should be clarified to explain that the language
allows the owner/operator to- remove waste and to
decontaminate equipment without risk of further
requirements for these activities only when the
closure plan as ultimately approved would not
require different management.
The word "approved" in the language of the
proposed rule should be deleted. It implies,
contrary to the settlement's intent, that the
owner or operator of an interim status facility
must first seek approval of a closure plan before
removing wastes or dismantling equipment.
The Agency does not agree that requiring the removal of
hazardous waste or decontamination of equipment to be in
accordance with the approved partial or final closure plan is
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inconsistent with the provisions of the settlement agreement.
The Agency agreed with the petitioners in the ACCI litigation
that under the original rules the owner or operator was not
precluded from removing wastes and decontaminating and/or
dismantling equipment at any time without providing notice to
EPA and, for interim status facilities, prior to submission of
a closure plan. As a result, the Agency agreed to make this
point explicit in the regulations (proposed §§264.112(e),
265.112(e)).
The Agency, however, never intended that this provision
should preclude the Agency from ensuring that such activities
meet the closure standards. 40 CFR §264.112, for example, has
always required the closure plan to include "a description of
the steps needed to decontaminate facility equipment during
closure." If facility equipment was decontaminated prior to
closure by a process that did not meet the closure performance
standards, a satisfactory level of decontamination might not be
achieved. As a result, the Agency believes that any such
activities must be in accordance with the activities in the
approved closure plan. The Agency does not believe this will
result in a burden to owners or operators. If their actions
satisfied the closure performance standard, then it would be
subsequently approved.
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III.H.4.2 Relationship to Interim Status Facilities
Interim status facilities should not be allowed
to remove waste and decontaminate or dismantle
equipment prior to notification of closure. EPA
review and plan approval should be maintained
prior to the initiation of closure activities.
.Even for interim status facilities without approved
closure plans, the Agency does not believe that this
requirement will result in a risk to human health or the
environment. As long as the activities conducted prior to the
submission of the closure plan satisfy the closure performance
standard, these activities would be approved in the closure
plan and would not render unacceptable activities previously
undertaken. Activities would only be rendered unacceptable if
they proved to be inconsistent with the closure performance
standard. In such situations, additional activities would have
to be undertaken to satisfy the conditions in the approved
closure plan.
III.H.4.3 Notice before Removal
In order to allow enforcement staff time to
arrange a visit to the facility if they believe
inspection of waste removal or decontamination or
dismantling of equipment is necessary, a ten-day
prior notice requirement should be adopted.
Under the requirements of §§264.73 and 265.73, the owner
or operator must record in the facility's operating record how
all hazardous -wastes have been handled. This record can
subsequently be reviewed by an inspector. In addition, an
independent professional engineer must certify that the entire
facility has been closed in accordance with the approved plan
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which also should ensure that appropriate activities are
undertaken. The Agency believes that a prior notice
requirement would be unduly burdensome on owners or operators
who frequently replace tanks or containers as part of routine
operations. Consequently, the Agency did not agree that
separate notice of the commencement of these activities prior
to closure is required.
III.H.5 Final Rule
The final rule was promulgated as proposed.
III.I Time Allowed for Closure
§§264.113 and 265.113
III.I.I Synopsis of Previous Regulation
Sections 264.113(a) and 265.113(a) previously required the
owner or operator to remove from the site, treat, or dispose of
all hazardous wastes in accordance with the closure plan within
90 days after receiving the final volume of hazardous wastes.
The Regional Administrator was allowed to extend the deadline,
if the owner or operator demonstrated, among other things, that
there was a reasonable likelihood that a person other than the
owner or operator would recommence operation of the facility
and that the owner or operator had taken and would continue to
take all steps, necessary to prevent threats to human health and
the environment. Sections 264.113*(b) and 265.113(b) required
the owner or operator to complete closure activities within 180
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days after receiving the final volume of wastes unless the
Regional Administrator granted a longer period.
III.I.2 Summary of Proposed Rule
The proposed rule replaced the language in §§264.113(b)
and 265.113(b) to require closure to be completed within 180
days of the final volume of hazardous waste. This change made
the deadlines for completing closure consistent with the
deadlines for removing all hazardous wastes--i.e., within 90
days of the final volume of hazardous waste. The proposal
also: (1) specified circumstances under which the deadlines
may be extended; (2) limited the length of extensions of
deadlines; (3) added deadlines for making these demonstrations;
and (4) clarified what demonstrations'must be made for an
extension to be granted.
Specifically, the Agency proposed to amend Parts 264 and
265 regulations to allow extensions to the deadlines for
handling inventory and completing closure if the owner or
operator intended to recommence operations. The proposal
limited the extensions of the deadlines for handling all
hazardous wastes and for completing closure to one year after
the final receipt of hazardous waste, with an option for an
additional one-year extension. The Agency also proposed to add
two new subsections, §§264.113(c) and 265.113(c), providing
that the demonstrations referred to should be made at least 30
days prior to the expiration of the 90-day period established
in §§264.113(a) and 265.113(a) and at least 30 days prior to
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the 180-day period established in §§264.113(b) and 265.113(b),
or within 90 days of the effective date of the regulation,
whichever was later.
Finally, the Agency proposed to amend §§264.113(a)(2),
265.113(a)(2), 264.113(b)(2) and 265.113(b)(2) to require
owners or operators to show that they are in compliance with
all applicable operating permit requirements (in the case of
permitted facilities) or interim status requirements.
III.I.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that the
deadlines imposed by §§264.113 and 265.113 precluded the
original owner or operator from temporarily suspending
'operations. Some facilities, especially storage and treatment
facilities that are dependent on industrial operations that
fluctuate due to market or economic conditions, may not receive
additional hazardous wastes for indefinite periods of time,
although the same owner or operator may expect to renew
operations after a temporary shutdown. In addition, the
petitioners argued that it may be difficult for an owner or
operator to predict when operations will be reactivated and, as
a result, a time extension granted by the Regional
Administrator may expire before the owner or operator or
another party renews operations. Because the Agency agrees
that the opportunity to request an extension to the deadlines
should be granted to an owner or operator as well as to a third
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party, the Agency extended the option of an extension to the
closure period to an owner or operator.
The Agency also agreed with the ACCI petitioners that, in
some cases, it may be appropriate to allow owners or operators
the opportunity to reapply for an extension to the 90-day
deadline for handling all hazardous waste and the 180-day
deadline for completing closure of a hazardous waste management
unit or facility. To ensure that the facility does not remain
inactive but unclosed for an extensive period of time, the
Agency allowed a maximum of two extensions. Because no
regulations specified deadlines for submitting documentation to
the Regional Administration supporting variance requests, the
proposal added new subsections establishing time periods for
demonstrations.
Finally, in order to ensure that the owner or operator has
taken and will continue to take all steps to prevent threats to
human health and the environment from the unclosed facility,
the Agency proposed to amend Parts 264 and 265 to require
owners or operators to show they are in compliance with permit
requirements or, where applicable, interim status provisions as
a condition of an extension of the deadline.
III.I.4 Comments and Responses
III.I.4.1 Partial Closure vs. Closure of Entire Facility
The regulations could be interpreted as
requiring closure of an entire facility if
hazardous wastes are no longer handled by a
single unit. Regulatory language should be
designed to avoid triggering actions for an
entire facility.
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The Agency agrees that the proposed regulations could be
interpreted as requiring closure of an entire facility rather
than of a single unit. It is not EPA's intent to trigger
actions for the entire facility when hazardous wastes are no
longer handled by one unit. Therefore, the language in the
final rule clarifies that the regulations apply on a unit basis.
III.I.4.2 Need for Flexibility
Greater flexibility should be provided in
closure schedules to account for business
'conditions, weather, and the interrelationship of
the facilities involved. Variances to the
requirement for completing closure within a
specified time should be allowed on a
facility-specific basis.
In northern climates, closure of a hazardous
waste management unit or facility may be
interrupted by the onset of winter and could
exceed the 180-day requirement. For facilities
with a longer closure period due to special
circumstances, requesting a modified closure time
period should be an option in the original RCRA
permit application.
Closures, despite all best efforts, cannot be
accomplished within the brief-time schedules
proposed by EPA. Sometimes it may be necessary
to close multiple sites concurrently; this can be
further complicated by the interrelationship of
the facilities involved.
The Agency believes that the proposed regulations allow
sufficient time for closure despite business schedules,
weather, and any other potential delays. For reasons discussed
in detail later in this section, the Agency believes that
timely closure is very important, and believes that specified
time limits for closure provide useful limits. Furthermore, as
discussed below, an extension of the final closure date can be
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sought as a permit modification. The Agency does not believe
that additional language is necessary to allow incorporation of
a modified closure time period in permit applications. Nothing
in the existing Part 270 regulations precludes this option.
III.I.4.3 Extensions as Permit Modifications
An extension of the final closure date must be
sought as a permit modification pursuant to Part
270. While the preamble suggests that this is a
minor clarification of the existing regulations,
we are concerned that such extensions may be
treated as major permit modifications requiring
compliance with the public participation
.requirements. The note in the existing
regulations clarifying that such changes are
minor modifications has been dropped for no
apparent reason.
The Agency agrees that an extension of the final closure
date is a minor permit modification. Under the provisions of
§270.42, an extension of the final closure date is defined as a
minor permit modification. Minor permit modifications do not
require public participation.
III.I.4.4 Definition of "Reasonable Likelihood"
The Agency should use as a-test of "reasonable
likelihood" whether the owner or operator can
present a letter from a prospective buyer for the
facility. A prospective buyer would not sign
correspondence unless a deal was imminent. The
owner or operator does not need one year to find
a market for his facility. Six months should be
adequate to find a buyer.
EPA has questioned whether it should develop
criteria or standards for determining for closure
purposes whether there is a "reasonable
likelihood" that a temporarily inactive facility
will recommence operations within a year. The
Agency should wait to develop generally
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applicable standards based on its accrued
experience with the provision.
The test of "reasonable likelihood" in
§§264.113 and 265.113 may be difficult to
enforce, because such subjective language allows
too much interpretation by both the permitting
agency and the permittee. More objective
standards should be applied, such as a purchase
agreement or specific documentation of intent to
use the site.
The Agency agrees that standards for "reasonable
likelihood" should be based upon experience and initially
expects to allow maximum flexibility to account for as many
site-specific variations as possible. EPA therefore, is not
promulgating fixed standards.
111.1.4. .5 Inconsistencies with Settlement Agreement
The proposed rule for interim status facilities
is not consistent with the settlement agreement,
which specifies that the time limits are
triggered by the final- receipt of hazardous
wastes or approval of the plan, whichever is
later. The Agency also shortened the time
limits for closure and for extensions agreed to
in the settlement, and added the phrase "using
the procedures of §265.112(d)" to the language
agreed upon in the settlement.
The Agency acknowledges that it inadvertently failed to
include some of the language of the ACCI settlement agreement
in the proposed regulations. The final §265.113(a)
incorporates the settlement language and states that all
hazardous wastes must be treated, removed off-site or disposed
"within 90 days after receiving the final volume of hazardous
wastes... or within 90 days after approval of the closure plan,
whichever is later..." Also, the final 265.113(b) includes the
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settlement language requiring closure to be completed "within
180 days after receiving the final volume of hazardous
wastes..., or 180 days after approval of the closure plan, if
that is later", rather than 90 days that was inadvertently
included in the proposal.
The Agency also agrees that limiting the length of the
closure period to a maximum of 2-1/2 years may be inconsistent
with the settlement provisions. Moreover, if the unit or
facility has additional capacity to receive additional
hazardous wastes and the owner or operator is in compliance
with all applicable operating requirements, an owner or
operator should not be restricted to 2-1/2 years. If the owner
or.operator is not-in compliance with all applicable operating
requirements, numerous authorities are available to the Agency
to require compliance or closure of the facility. Therefore,
the final rule deletes the 2-1/2 year limitation on the length
of the closure period and allows the Regional Administrator to
approve an extension to the 90- or 180-day period subject to
the conditions in §§264.113 and 265.113.
The Agency also acknowledges that it inadvertently
included a reference to the procedures in §265.112(d) in the
proposed §265.113 for requesting extensions to the closure
deadlines. The Agency agrees that requiring elaborate
administrative procedures, including public hearings at the
Regional Administrator's discretion, under interim status is
more stringent than the requirements for permitted facilities.
Under the provisions of §270.42, extensions to the closure
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deadlines are considered minor modifications and do not require
public participation. Consistent with the settlement
provisions, the final rule drops .the reference to the
procedures of §265.112(d) in §§265.113(a) and (b).
III.I.4.6 Adequacy of Deadlines
The requirement that facilities submit a
request for an extension within 90 days from the
effective date of regulation does not allow
non-operating facilities, for which closure is
pending at the time the regulations are
promulgated, adequate time to comply.
The Agency believes that 90 days is an adequate amount of
time for an owner or operator to request an extension of the
closure deadlines. In fact, because the regulations do not go
into effect for six months from the date of promulgation, for
facilities with closures pending at 'promulgation of the
regulation, the time for compliance would ef-fectively equal 180
days. The Agency wishes to ensure that inactive and unclosed
facilities are closed as quickly as possible to minimize
potential threats to human health and the environment. As a
result, the Agency is dropping-the proposed language of "90
days from the effective date of the proposed rule, if that is
later" from the final rule.
III.I.4.7 Receipt of Solid Wastes After Final Receipt of
Hazardous Wastes
Under the existing regulations, an owner or
operator of a hazardous waste management unit
must complete partial and final closure
activities within 180 days of receiving its last
volume of wastes. By changing the language in
the proposed rule to "last volume of hazardous
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wastes," a facility which did not intend to
receive additional volumes of hazardous wastes
but did intend to receive additional volumes of
non-hazardous wastes would have to begin
closure. This is not consistent with the
preamble, settlement, or legislative intent.
The Agency believes that the continued receipt of solid
waste at a hazardous waste management unit after the last
volume of hazardous waste has been received should not delay or
interfere with closure of the unit. Therefore, the Agency
proposed to change the language in the rule to "final volume of
hazardous wastes." By requiring closure after the last volume
of hazardous waste has been received, the Agency expects
hazardous waste management units and disposal facilities in
particular to be closed in a more timely manner.
EPA believes that closure of hazardous waste management
facilities a.s soon as practicable after' the last receipt of
hazardous waste is extremely important because unclosed units
present an unnecessary increased risk to human health and the
environment. One particularly important result of closure
after the last receipt of hazardous waste is the added
protection that would be afforded ground and surface water.
EPA has developed a liquids management strategy for ground and
surface water protection at land disposal facilities. The
fundamental goal is to minimize the migration into the
environment of the hazardous constituents of waste placed in
land disposal units. One element is to minimize leachate
generation and migration to the adjacent subsurface soils,
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ground water, or surface water during the operating life and
the post-closure period.
The regulatory goal of minimizing the formation and
migration of leachate for permitted units is achieved through
the Part 264 design and operating standards that require the
use of (1) liners that are designed, installed, and operated to
prevent any migration of waste out of the unit to the adjacent
subsurface soil or ground water or surface water throughout the
active life of the unit; (2) the installation of leachate
collection and removal systems and run-on controls; and (3) the
placement at closure of a final cover on units or the removal
at closure of the waste, waste residues, liners and
contaminated soil and ground water.
For interim status disposal units that do not have liners
or leachate collection systems, the final cover is the
mechanism used to minimize the formation and migration of
leachate. It is, therefore, particularly important that such
units be closed as soon as possible after the receipt of the
final volume of hazardous waste. For clpsure of units at which
all hazardous wastes are removed at closure, the waste, waste
residues, liners, and contaminated soils and ground water must
be decontaminated or removed.
Both the Part 264 and 265 standards require a final cover
on units where the waste is left in place to provide long-term
minimization of migration of liquids through the closed units.
A properly designed and maintained cap can prevent the entry of
liquids into the closed unit, thus preventing the formation and
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migration of leachate for many years, and minimizing it
thereafter in the absence of damage.
The closure standard for storage or treatment surface
impoundments and waste piles as well as all other types of
storage and treatment units (e.g., tanks) requires the removal
or decontamination of all residues, contaminated containment
systems components, contaminated soils and ground water, and
structures and equipment during closure. For this type of
closure (closure by removal of all hazardous wastes) the
potential for additional adverse impact on human health and the
environment is removed during closure. The liquids management
strategy is met by removing the hazard.
Therefore, a unit1 or facility must be closed as soon as
practicable after the last re'ceipt of hazardous waste to be
consistent with EPA's strategy for protecting human health and
the environment. The following adverse conditions may occur if
the unit is not closed in a timely manner:
(1) Landfills and waste piles:
Increased leachate generation in the absence
of a final cover, or in the case of a storage
waste pile, because the hazardous waste has-
not been removed or decontaminated;
Increased leachate migration at interim
status units without liner and leachate
collection systems;
Increased leachate migration at units with
liners that do not prevent migration or are
leaking;
Continued potential for wind disposal or
erosion of hazardous waste;
- Direct access' to the hazardous waste; and
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Increased potential for the bathtub effect
(i.e., filling with leachate and overflowing).
(2) Surface impoundments (both storage and disposal):
Increased hazardous waste migration at
interim status units without liner and
leachate collection systems because the waste
has not been removed or dewatered and covered;
Increased leachate/hazardous waste migration
at units with liners that do not prevent
migration or are leaking;
Continued higher potential for migration as
long as there is a head of liquid in the unit;
Continued potential for overtopping or dike
failure while the unit contains liquid
hazardous waste;
- Continued potential for wind dispersal and
volatile emissions; and
- Direct access to the hazardous waste.
Under certain circumstances, receipt of solid waste after
the last volume of hazardous waste may be beneficial in
bringing a disposal unit to the proper final elevation or in
establishing the final contour of the unit. However, the solid
waste placed in the unit should not (1) create problems due to
incompatibility with the hazardous waste or liners, (2.) be of a
high organic content or have a high voids ratio that could
result in differential settlement and damage to the final
cover, or (3) result in a delay in closure of the unit.
The Agency also disagrees with the commenter's argument
that this proposed change is inconsistent with the
Congressional intent evidenced in the HWSA legislative history
regarding closure of surface impoundments. HSWA contains no
provisions addressing the question of whether disposal surface
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impoundments that cease to accept hazardous waste should be
required to close or allowed to stay open to receive
non-hazardous waste. HSWA merely addresses retrofitting
requirements for surface impoundments by adding Section 3005(j)
of RCRA, which requires interim status surface impoundments
that receive, store or treat hazardous waste after November 1,
1988 to retrofit to install double liners and leachate
collection systems. The legislative history contains a brief
discussion that indicates that this provision does not require
the closure of an impoundment that ceases to receive hazardous
waste but continues to receive non-hazardous wastes, and that
requiring such closure would not be proper if the management of
the impoundment is protective of human health and the
environment.
The legislative history of Section 3005(j) of RCRA merely
evidences the fact that Section 3005(j) itself does not mandate
closure of interim status surface impoundments that cease to
receive hazardous waste. It leaves unimpaired the Agency's
pre-existing authority to establish by regulation appropriate
closure requirements for interim status surface impoundments as
necessary to protect human health and the environment. As
discussed above, the Agency has concluded that the expeditious
closure of hazardous waste disposal surface impoundments after
they are no longer receiving hazardous waste for disposal would
significantly improve protection of human health and the
environment. Requiring such closure is thus consistent with
Section 3005(j) of RCRA and its legislative history.
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111.1.5 Final Rule
The Agency is making a number of changes to the proposed
rule to make the final rule consistent with the ACCI settlement
language. First, the final rule includes the language
inadvertently omitted from the proposed rule, namely: the
specified 90-day period in §265.113(a) will begin only after
the approval of the closure plan, if that is later than the
final receipt of hazardous waste; §265.113(b) retains the
previous period of 180 days to complete closure; the reference
to "the procedures of §265.112(d)" in §265.113(a) and (b) has
been deleted. Second, the final rule eliminates the
requirement that the closure period be limited to a maximum of
2-1/2 years.. The Regional Administrator may approve an
extension to the 90- or 180-day periods if certain criteria are
satisfied. No maximum length of time is specified for the
length of the extension.
The final rule is promulgating as proposed that closure
must be completed within 180 days after the final receipt of
hazardous wastes.
In the absence of sufficient information at this time, the
Agency is not currently establishing standards for determining
what constitutes a "reasonable likelihood" that the owner or
operator or another party will recommence operations of the
facility.
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III.J Disposal or Decontamination of Equipment, Structures,
and Soils
§§264.114 and 265.114
III.J.I Synopsis of Previous Regulation
Sections 264.114 and 265.114 previously required owners or
operators to dispose of or decontaminate all facility equipment
and structures. The removal of contaminated soil was not
mentioned explicitly.
III.J.2 Summary of Proposed Rule
The proposed rule expanded §§264.114 and 265.114 to
require owners or operators to remove all contaminated soils as
part of partial and final closures.
III.J.3 Rationale for Proposed Rule
In order to satisfy the closure performance standard and
prevent threats to human health and the environment, the Agency
believes that all contaminated soils must be removed at partial
and final closure (with the exception of those contaminated
soils that are allowed to remain in place at closed landfills
and at surface impoundments and waste piles closed as
landfills). Since contaminated soil may be a problem at all
types of TSDFs, the Agency proposed to include in §§264.114 and
265.114 an explicit requirement to remove or decontaminate all
contaminated soils.
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III.J.4 Comments and Responses
Some commenters expressed concern about how to identify
contaminated soils and what standard to use for their cleanup.
III.J.4.1 Cleanup Standards
The rule should apply a "rule of reason" and
require soil analysis only for constituents
expected to be in the soil based upon the
hazardous waste known by the owner or operator to
have been managed in a unit.
Limit removal or decontamination to
contamination caused directly by the unit being
closed, and to'soil background levels or to
levels necessary to protect human health and the
environment, whichever is greater.
EPA must specify criteria and decontamination
standards for how clean is "clean" for-closure.
Facility owners or operators should remove all
soil contaminated with 40 CFR 261 Appendix VIII
constituents above background concentrations.
This requirement would be most consistent with
groundwater and delisting requirements and with
requirements in the Hazardous and Solid Waste
Amendments of 1984.
Base the definition of contaminated soil on a
scientific criterion that will protect human
health and the environment rather than on
background levels.
The permit writer should be allowed to modify
closure requirements where closure is not
consistent with continued use of the site and
environmental protection equivalent to that
available from closure can be achieved.
The Agency believes that it is important to test for and
clean up all contaminated soils. Limiting the requirement only
to those hazardous wastes known to have been present at the
facility would mean that incomplete records could mislead an
owner or operator into conducting an incomplete cleanup. This
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broader requirement is also consistent with Section 206 of
HSWA, which requires corrective action for all releases of
hazardous waste or constituents from any solid waste management
unit at a treatment, storage, or disposal facility seeking a
RCRA permit.
The Agency recognizes the need for criteria for
determining "how clean is clean" and is developing guidance on
this issue. However, specification of such criteria is outside
the scope of this rulemaking.
III.J.4.2 Soil Sampling for Tanks
Soil sampling is particularly necessary around
tanks and other equipment where concrete paving
and curbing for spills is not present.
The Agency agrees that soil sampling is particularly
important where hazardous waste containment systems are not
present. The amendments to §§264.114 and 265.114 are intended
to address the commenter's concern.
III.J.4.3 Exclusion of Certain Ecoiipment from Rec-uirement
Leachate collection systems, liners, slurry
walls, and similar equipment need to be
specifically excluded from this requirement.
The Agency agrees that systems and equipment critical to
post-closure care maintenance should be excluded from the
requirement. As noted with respect to the comments to
§§264.112 and 265.112, the intent of this requirement is not to
require owners and operators to remove parts of the facility
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that are necessary for protection of human health and the
environment during the closure and the post-closure care period.
III.J.5 Final Rule
The final rule was adopted as proposed.
III.K Certification of Closure
§§264.115, 265.115
III.K.I Synopsis of Previous Regulation
Sections 264.115 and 265.115 previously provided that when
closure was completed, the owner or operator must submit
certification by both himself and an independent registered
professional engineer that the facility had been closed in
accordance with the specifications in the approved closure plan.
III.K.2 Summary of Proposed Rule
The proposed rule: (1) dropped the requirement that the
registered professional engineer be independent; (2) extended
certification requirements to the partial closure of disposal
units; (3) added deadlines for submitting certifications of 45
days after completion of closure of disposal units and 30 days
after completion of final closure; (4) required that technical
documentation supporting certification be submitted upon
request; (5) required certification be submitted by registered
mail; and (6) requested comments on approaches that would be
appropriate for approving closure certifications.
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III.K.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation challenged the need for
certification by an independent registered professional
engineer on the grounds that an in-house engineer would be in
the best position to observe the ongoing closure activities and
to ensure that they conform to the approved closure plan.
Moreover, the petitioners contended that professional standards
and statutory criminal penalties for false certifications would
provide adequate assurance that in-house registered
professional engineers would make competent and honest
certifications.
Because the proposed rule relied on professional standards
and statutory penalties to prevent inadequate certifications,
the Agency requested comments on whether it should specify the
types of professional engineers that could certify closure to
prevent unqualified certifications. For example, while the
Agency would consider most civil or sanitary engineers
qualified to certify closure, an electrical engineer might not
be qualified. In addition, differences among hazardous waste
management units could affect the types of qualifications that '
would be appropriate.
The Agency was also concerned that unless certification of
a partial closure occurs when the unit is closed, it may not be
possible at final closure to determine if previous partial
closures were in accordance with the approved closure plan.
Therefore, the Agency proposed that partial closures of
landfill, surface impoundment, waste pile, and land treatment
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units be certified as they are performed. Certification of
partial closures involving other types of non-disposal units
(i.e., incinerators, container storage, and tank .storage or
treatment) could be delayed until final closure. Although the
proposal allowed certification to be delayed until final
closure, the owner or operator was still responsible for
ensuring that closure of the incinerator, container storage, or
tank was in accordance with the approved closure plan.
The proposal also added a requirement that certifications
be submitted to the Regional Administrator by registered mail
within 30 days of completing partial closure of disposal units,
and within 45 days of final closure activities. To allow
maximum flexibility and minimize burdens to owners and
operators, the Agency did not propose that documentation (e.g.,
inspection reports, quality assurance/quality control
demonstrations) be submitted to the Regional Administrator to
support the closure certification; however, instead, the
proposal required that documentation supporting the
certification be available upon request. In addition, the
Agency requested comments "on the desirability of requiring
supporting documentation to be submitted with closure
certifications, the types of documentation that would be
appropriate, and the appropriateness of requiring the Regional
Administrator to approve or verify the accuracy of the closure
certification.
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III.K.4 Comments and Responses
The proposal to drop the requirement that the registered
professional engineer be independent received strong support
from a number of commenters, but was also opposed by several
commenters. A number of commenters also argued that EPA should
not establish standards for the types of professional engineers
who would be allowed to certify closure. Finally, several
commenters offered different suggestions concerning the
documentation that should be required to support closure
certification.
III.K.4.1 Need for Independent Professional Engineer
The requirement-that a-certifying engineer be
independent should be eliminated.
The requirement that a certifying engineer be
independent should not be eliminated.
The independent professional engineer
requirement should remain. Most independent
professional engineers are dependent on their
State license for their earnings as a small
consulting company. The independent professional
engineer would lose his livelihood if his license
were revoked for improper certification. A
company's professional engineer would still have
a job if his license was revoked. Manufacturers
are exempt from professional licensing
requirements in most states. The employer might
even pressure an individual engineer to misuse
his stamp for the "good" of the company. The
engineer would be caught between his employer and
the law without the option to "walk away." An
independent engineer would not have this conflict.
Petitioners in the ACCI litigation argued that an in-house
engineer would be in the best position to observe and certify
closure activities. However, the same argument could be made
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in other situations that do require a third-party opinion. For
example, a common practice in the United States is to require
certifications and audits by independent accountants even
though in-house accountants handle all day-to-day business
operations. In these cases, objectivity is considered to be of
paramount importance, overriding the fact that in-house
professionals may possess equal qualifications and have direct
knowledge of the firm's day-to-day operations.
Typically, objections to third-party requirements rest
upon the issue of cost. EPA is convinced, however, that
because of the importance of closure in ensuring long-term
protection from releases of hazardous wastes, requiring the
engineer to be independent is the most effective way to ensure
an objective evaluation of closure procedures. The Agency
believes the benefits of an independent certification justify
the relatively small additional costs.
The costs of hiring an independent registered professional
engineer will generally be a small share of the total closure
costs. EPA estimates that certification of closure activities
by an independent engineer'will require from 14 hours (for tank
and container storage units) to 80 hours (for storage surface
impoundments).4 Assuming an hourly rate of $75 for an
independent engineer and $30 an hour for an in-house engineer,
the additional costs of certification by an independent
* Average and Maximum Engineering Cost Estimates for
Closure. (Draft Final Report) August 1983, Pope-Reid
Associates, Inc.
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engineer range from $630 to $3,600 (excluding any additional
costs for the independent engineer to become familiar with the
facility). In contrast, total closure cost estimates (for
median sized facilities range from $6,000 (for a 4,100-gallon
storage container area) to over $4 million (for a 1.2-acre
storage surface impoundment). The cost of certification by an
independent engineer thus will range from approximately 0.1 to
10 percent of the total closure cost estimate.
Although the independent certification requirement might
impose larger proportional additional costs for very small
container and tank storage areas, the actual costs of
certification are likely to be low. Certification is not
required upon partial closure of containers *or tanks if thes"e
storage areas are part of a larger, multiple-process facility.
Instead certification of these units would occur "in conjunction
with certification of other units or as part of final closure
certification. The Agency expects only rare instances when the
costs of independent certification become a significant portion
of total closure costs. The Agency, therefore, is requiring in
the final rule that the engineer must be independent.
III.K.4.2 Criteria for Engineer Qualifications
Criteria for the registered professional
engineer should be made specific to ensure that
the engineer i,s registered in an appropriate
discipline.
EPA should not specify which types of engineers
are qualified to certify closure.
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The engineer's certification should include a
statement that the engineer has the appropriate
training and/or experience to certify closure at
the particular facility.
Professional ethics and requirements, supported
by a professional engineer's signed
certification, would deter a professional
engineer from signing for activities for which he
or she was not qualified or did not have adequate
support.
The Agency has concluded that it will not attempt to
specify the training, experience, or other qualifications for
independent registered professional engineers. It is
convinced, as one commenter noted, that professional standards
and the requirement that the engineer be independent will
ensure that engineers who are not qualified to undertake such
activities will not certify closure.
III.K.4.3 Partial Closure Certification
Most of the commenters favored the proposal to require
partial closure certifications for land disposal units.
Moreover, several suggested that the requirement be extended to
all partial closures, including container and tank storage and
incinerator units.
The current regulation has been interpreted by
at least one State to require certifications of
partial closures; therefore the proposed
regulation does not constitute a change.
Partial closure certifications should apply to
incinerators and storage units as well as land
disposal units.
Although it may be acceptable to delay
certification by a professional engineer of
partial closures of incinerators or storage
units, the Agency should require the owner or
operator to submit documentation regarding the
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work done. This documentation should be
maintained at the facility until final closure.
Certification should only be required at the
completion of final closure activities.
The Agency has considered the viewpoints on this issue and
has concluded that certification of partial closures of storage
units and incinerators is not necessary. It is important to
certify closures of land disposal units as they occur because
hazardous .wastes may remain after closure. Partial closure
certifications verify to the Agency that the remaining
hazardous wastes have been managed and contained in a manner
that will prevent future threats to human health and the
environment. Such verifications (e.g., checks that the cover
design meets the specifications included in the approved 'plan)
would not be as easy to determine after partial closure has
been completed. On the other hand, storage units and
incinerators can be inspected at any time to verify that
hazardous wastes have been adequately removed. In addition,
the Agency retains the authority to request and review
supporting documentation of any closure, whether certified or
not.
III.K.4.4 Certification Deadline
The certification deadlines for partial closure
and final closure should be the same.
The certification deadlines may not allow
sufficient time to fully document closure if the
Agency requires such documentation.
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The wording of §264.115 should be consistent
with that of §265.115, by reading "... within 30
days after completion of final closure..."
rather than "... within 30 days of completion..."
The Agency agrees with the commenters that the deadlines
for certifying both partial closures and final closures should
be consistent and that a 30-day deadline may not provide
sufficient time to document partial and final closure. The
final language of §§264.115 and 265.115 has been made parallel,
and both require certifications to be submitted within 60 days
of completion of partial or final closure.
III.K.4.5 Documentation of Certification
Comments on the issues of Agency approval of closure
certifications and submission of supporting documentation
ranged from favoring no approval or documentation to favoring
formal Regional Administrator approval and the submission of
extensive documentation. The Agency solicited comments on
these issues, in part, because it was concerned that dropping
the requirement for the engineer to be independent might
require some form of Agency review or approval and/or
submission of documentation. Because the Agency has decided to
retain the requirement that the engineer be independent, the
context within which the comments were submitted has changed.
The Regional Administrator's or Agency's
approval or verification of the adequacy of the
closure certification sh'ould not be required.
Documentation requirements are unnecessary.
The major barriers to falsification are the legal
liabilities. The barrier is not significantly
affected by asking for documentation on the
engineer's certification.
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The Agency could inspect both the site and
documentation if the Agency deemed it necessary.
The short deadlines may not allow for the
completion of all drawings, plans etc., necessary
to fully document closure. Furthermore, the
requirement to maintain the documentation is
open-ended, and, especially for final closure of
facilities not subject to post-closure care, no
long-term custodian of the documentation may be
present.
Not requiring documentation raises a question
of citizen access: concerned citizens cannot
evaluate closure if pertinent information is not
in EPA files.
Items such as invoices for delivery and
installation of a synthetic cap should serve as
documentation for certification.
Because certifications will be conducted by an independent
registered professional engineer, the Agency agrees with the.
commenters who suggested that mandatory submission of
documentation and formal Agency approval of closure
certification are both unnecessary. The Agency also agrees,
however, that the Regional Administrator should have the
authority to request supporting documentation if necessary for
evaluating whether closure has been conducted in accordance
with the approved plan. The owner or operator is released from
the financial assurance requirements under §§264.143(i) and
265.143(h) unless the Regional Administrator determines closure
has not been in accordance with the approved plan. Therefore,
the Agency is requiring that supporting documentation be made
available upon request. Possible types of supporting
documentation include those recommended by commenters.
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I U.K. 5 Final Rule
After analyzing the comments, the Agency has decided to
retain the requirement in the previous rule that the registered
professional engineer certifying closure must be independent.
In addition, the Agency revised the language in the proposed
rule to require that certifications for partial and final
closures be submitted within 60 days of the completion of
partial or final closure. The balance of the rule was adopted
as proposed.
III.L Survey Plat
§§264.116 and 265.116
111.L.1 Synopsis of Previous Regulation
Sections 264.119 and-265.119 previously required the owner
or operator of a disposal facility to submit a. survey plat to
the local zoning authority (or the authority with jurisdiction
over local land use) and to the Regional Administrator. The
survey plat had to be prepared by a professional land surveyor,
indicating the location and dimensions of landfill cells or
other disposal areas with respect to permanently surveyed
benchmarks. The plat also was required to contain a note
stating the owner's or operator's obligation to restrict
disturbance of the site. The plat was to be submitted within
90 days after final closure of the facility. (The language in
§265.119 differed slightly by referring to the local land
authority rather than to the local zoning authority or the
authority with jurisdiction over local land use.)
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III.L.2 Summary of Proposed Rule
The proposed rule moved the survey plat requirement to
§§264.116 and 265.116 to clarify that the plat is a closure
activity rather than an activity undertaken during the
post-closure care period. In addition, the proposal revised
the deadlines to require the survey plat to be submitted "no
later than the submission of the certification of closure of
each hazardous waste disposal management unit." (emphasis
added)
III.L.3 Rationale for Proposed Rule
Because the survey plat must indicate the location and
dimension of each disposal area, The Agency believes it must be
prepared prior to the completion of all closure activities at a
particular unit-. As a result, the Agency proposed to require
in §§264.116 and 265.116 that the survey plat be submitted to
the 'appropriate local land use authority no later than the
submission of the certification of closure of each hazardous
waste disposal management unit. This will ensure that if land
transactions involving the site take place immediately after
partial closure, the plat will show the location of hazardous
waste disposal areas.
III.L.4 Comments and Responses
Commenters generally did not disagree with the requirement
to submit survey plats after each partial closure of disposal
units. Some commenters argued that the plat was not necessary
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for certain types of hazardous waste management units, or that
certain types of units might need additional time to prepare
and file the plat.
III.L.4.1 Applicability to Injection Wells
Injection wells should be specifically excluded
from the survey plat requirement. Unlike a
landfill, the final reservoir of a deep well
injection facility cannot be surveyed.
The Agency disagrees that the survey plat requirement
needs to be revised to explicitly exempt injection wells.
Underground injection wells are already exempted from 40 CFR
Part 265 Subpart G regulations by §§265.1 and 265.430(a).
Under 40 CFR 270.60(b), deep well injection facilities receive
permits by rule (i.e., it is deemed to have a RCRA permit if it
has a permit under 40 CFR Part 144 or 145 and complies with.the
conditions of that permit and §144.1.4). In addition, §264.1
specifies that Part 264 standards apply only to the extent
that the requirements are included in 40 CFR 144.14. Because
§144.14 does not include a survey plat requirement for
permitted UIC facilities, the requirements in §264.116 also do
not apply.
III.L.4.2 Survey Plats for Partial Closures
Since-a partially closed area is still within
. the security boundary of an active facility,
survey plats should not be required for such
areas.
The Agency believes that it is crucial to submit survey
Plats for partially closed disposal units to local land
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authorities no later than completion of each partial closure.
Portions of the facility, including portions that have been
closed, may be sold before the entire facility is finally
closed. In that situation, local land authorities would not
have information on locations and dimensions of all closed
units. Furthermore, because the owner or operator will have to
prepare the plat at the time of partial closure to ensure that
accurate information is available, submittal of the plat to the
local land authority at that time will not add a significant
burden.
III.L.4.3 Scope of Survey Plat
The plats should include surrounding
contaminated areas, if applicable (e.g., if
ground-water contamination has occurred).
The Agency agrees that survey plats should show all
locations of hazardous waste, including contaminated areas,
within the facility boundary- The plat should not be limited
to showing the designed boundaries of hazardous waste "
management units if areas outside those boundaries are
contaminated. However, contaminated areas outside the facility
boundaries are not required to be included in survey plats.
Section 3004(v) of HSWA contains special requirements for
corrective action beyond the facility boundary. Descriptions
of contamination outside the facility boundaries may be
required under orders or regulations under §3004(v).
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III.L.4.4 Deadlines for Submitting Plat
The deadline for submission of a survey plat is
needlessly short and burdensome to owners and
operators.
The survey plat must indicate the location and dimension
of each disposal area, and thus must be prepared prior to the
completion of all closure activities for each unit. The
proposal required the plat to be submitted no later than the
certification of each partial closure. Because the closure
certification period has been extended in the final rule from
30 days to 60 days, the time period for submitting the plat has
also been extended. In addition, the owner'or operator has the
180 days allowed for closure itself to produce a survey plat.
The Agency believes this provides adequate time even if no
.
preliminary survey work had been done before the start of
closure.
III.L.5 Final Rule
After analyzing the comments, the final rule is promulgated
as proposed with minor wording changes.
III.M Post-Closure Care and Use of Property
§§264.117 and 265.117
III.M.I Synopsis of Previous Regulation
Sections .264.117(a)(l) and 265.117(a)(1) previously
required the post-closure care period to continue for at least
30 years after the date of completing closure of the facility.
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The rule also contained provisions for allowing a reduction of
or an extension to the period based on cause.
III.M.2 Summary of Proposed Rule
-In subsection (a)(l) of the proposed rule, the Agency
clarified the applicability of the post-closure care period for
hazardous waste disposal units closed prior to final closure of
the facility-by requiring the post-closure period to continue
for 30 years after the date "that the hazardous waste
management unit was closed." Thus, the Agency proposed to make
the 30-year care period apply to each hazardous waste
t
management unit independently.. The Agency also proposed in
§264.117(a)(2) to reduce the period during which the Regional
* *' s
Administrator may shorten or extend the post-closure care
period from 180 to 60 days preceding partial or final closure.
III.M.3 Rationale for Proposed Rule
The previous regulations did not state explicitly whether
post-closure care activities were required after closure of
each hazardous waste disposal unit or only after final closure
of the facility. Nor did the regulations specify whether the
beginning of the 30-year post-closure care period was triggered
by partial closures or only by final closure of the entire
facility.
Because of the importance of post-closure care activities
for ensuring the long-term security of hazardous waste disposal
facilities, the Agency considered it essential for the owner or
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operator to conduct post-closure care activities as soon as the
hazardous waste disposal unit was closed. The Agency,
therefore, proposed to require that post-closure care
activities begin after the closure of each hazardous waste
disposal unit. In order to reduce the burden on an owner or
operator who partially closes units prior to final closure, the
Agency proposed to trigger the beginning of the 30-year
post-closure care period with closure of each unit (i.e.
partial closure) rather than with final closure of the facility.
The Agency recognizes that, in some circumstances, the
post-closure care period should continue for 30 years after
closure of the entire1 facility rather than after closure of the
i, »
individual hazardous waste disposal units. For example, unless
separate ground-wa'ter monitoring systems can be established for
each hazardous .waste disposal unit (e.g., each cell of a
landfill) it would not be possible to differentiate monitoring
results for different units. Under these circumstances, as the
Agency pointed out in the preamble to the proposed rule, the
Regional Administrator .would still retain authority under the
proposed §§264.117 and 265.117 to extend the length of the
post-closure care period. Furthermore, under the proposed rule
the owner or operator would have to adjust the post-closure
cost estimate and amount of financial assurance if the Regional
Administrator extended the post-closure care period for any
unit during the active life of the facility (i.e., prior to
receipt of certification of final closure).
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III.M.4 Comments and Responses
Commenters generally did not oppose the idea of triggering
the beginning of the post-closure care period with closure of
each disposal unit. Several commenters, however, addressed
practical issues of distinguishing among units with differing
post-closure care periods.
III.M.4.1 Distinguishing- Among Units with Different Post-
Closure Care Periods
Triggering the post-closure care period with
each partial closure would cause confusion and
could allow an owner or operator to claim that
contamination found during the post-closure care
period was from a unit for which the post-closure
care responsibility was ended. In addition,
without separate monitoring systems, it is
impossible to determine from which unit
contamination originates. EPA should trigger the
post-closure care period for all units with final
closure of the facility.
EPA should only allow post-closure care to
begin when all the units within a groundwater
monitoring system have closed. The key feature
of post-closure care is groundwater monitoring.
A single ring of monitoring wells may serve more
than one unit (40 CFR §264.95). Closure of one
unit would force well analyses to serve as
"active facility" groundwater monitoring for one
unit and post-closure groundwater monitoring for
another unit.
Unless the operator can establish that
monitoring of partially closed units is
differentiated from monitoring data of still
operating units, applying the post-closure period
on a unit basis appears to add confusion. All
units should be monitored until the expiration of
the post-closure period of the final unit.
The Agency recognizes that in some cases a ground-water
monitoring system may cover more than one unit and it may be
difficult or impossible to differentiate monitoring results for
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different units. In these cases, unless the owner or operator
can demonstrate that separate monitoring systems have been
established for each unit, the Regional Administrator would
probably extend the post-closure care period for each unit to
be consistent with the post-closure care period for the
remainder of the units, and ground-water monitoring would be
required until the end of the post-closure care period for the
last unit.
Even where ground-water monitoring is conducted on a
per-unit basis, there may be some potential for uncertainty.
In such cases, if the Regional Administrator proposes to extend
the po.st-closure care period, the b'urden would be upon the
owner, or operator to show that a post-closure care period
should be ended.
III.M.4.2 Criteria for Extending the Post-Closure Care Period
Requirements to extend the post-closure care
period must be dependent on conditions at the
site during the time of evaluation.
The Agency agrees that the appropriateness of reducing or
extending the length of the post-closure care period is
dependent on conditions at the site. The proposed regulation
was intended to provide for maximum flexibility to address
site-specific conditions. For example, if a facility has a
surface impoundment and a landfill with separate monitoring
systems, it may be appropriate to terminate the post-closure
care periods at different times.
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III.M.4.3 Time Periods for Adjusting the Length of the
Post-Closure Care Period
It is unlikely that a need to change the length
of the post-closure care period can be determined
prior to final closure of the facility.
Extensions of the post-closure care period
beyond thirty years can be determined only near
the end of the thirty years.
A better and more equitable procedure would be
to require a review at the end of 20 years of
post-closure care, and at that time make the
determination whether an extension is necessary.
Moreover, the owner should be allowed a review at
the end of the 30 years, if conditions have
improved.
Specific criteria must be identified to justify
extensions'of the post-closure care period.
The previous rule in §§264.117(a)(2)(ii) and
265.117(a)(2)(ii) provided .that the Regional Administrator
could extend the post-closure care period at any time prior to
the time that the period was due. to expire. Reductions in the
period could be made only 180 days prior to closure or any time
thereafter.
The proposed rule allowed extensions or reductions to the
period to be made 60 days prior to closure or any time
thereafter. In developing the final rule, the Agency wished to
provide the maximum flexibility to owners or operators and the
maximum public participation. As a result, the final rule
expands the ability of the owner or operator or public to
request extensions or reductions in the length of the
post-closure care period.
The final rule now provides that the Regional
Administrator may shorten or extend the post-closure care
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period "[a]ny time preceding partial closure of a hazardous
waste management unit subject to post-closure care requirements
or final closure, or any time during the post-closure care
period for a particular unit." Thus, for a hazardous waste
management unit that has been closed in a partial closure, the
Regional Administrator may change the post-closure care period
before the final closure of the facility or during the
post-closure period for that unit.
II-I.M.4.4 Security Provisions
The following wording changes are suggested:
(1) §§264.117(b)(l) and 265.117(b)(1) should be
revised to say that the Regional Administrator
may require continuation of the security
requirements if hazardous wastes will remain
after closure (instead of may); and (2)
§§264.117(c) and 265.117(c) should be clarified
to limit subsequent owners from disturbing the
containment or monitoring systems or from
excavating into hazardous waste zones.
The Agency disagrees that the condition for requiring
continued security measures should be that hazardous wastes
will remain after closure. The proposed regulation does not
change the wording of the existing regulation precisely because
it would fail to protect human health if it required continued
security measures only when it was certain, rather than
suspected, that hazardous wastes remained.
The Agency does not believe it is necessary to revise the
language of §§264.117(c) and 265.117(c). The language of the
final rule will prevent an owner or operator from excavating
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into hazardous waste zones unless he can demonstrate that such
actions satisfy the criteria of §§264.117(c) and 265.117(c).
III.M.4.5 Increases or Decreases in Financial Responsibility
If financial responsibility requirements are
increased because of an extension of the post-
closure period, then similarly, financial
responsibility requirements should be reduced if
the period is shortened.
The existing regulations in §§264.145 and 265.145 allow
the owner or operator to request a reduction in the amount of
financial assurance required if the cost estimate is reduced.
As a result, if the length of the"post-closure care period is
reduced, the owner or operator could submit a request to the
Regional Administrator to reduce the financial responsibility
obligations.
III.M.5 Final Rule
The final rule specifies that post-closure care "must
begin after completion of closure of the unit and continue for
30 years after that date" to clarify that the post-closure care
period begins at closure of each hazardous waste disposal unit.
The final rule also clarifies that the Regional
Administrator may shorten or extend the post-closure care
period in accordance with all of the permit modification
procedures in Parts 124 and 270 (-and not only with the
procedures of §270.41 as noted the proposed rule) or for
interim status facilities in accordance with the procedures of
§265.118(g). To provide maximum flexibility to the owner or
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operator and the Agency, the final rule allows a reduction or
extension to the post-closure care period to be made at "any
time preceding partial closure of a hazardous waste management
unit subject to post-closure care requirements or final
closure, or any time during the post-closure period" instead of
during a 60-day period preceding partial or final closure. The
balance of the final rule was adopted as proposed.
III.N Post-Closure Plan
§§264.118(b) and (c), 265.118(a) and (c)
III.N.I Synopsis of Previous Regulation
Sections 264.118(a) and 265.118(a) previously required
i
owners or operators of hazardous waste disposal facilities to
hatfe post-closure plans. In ad'dition, under §§264.228(c) and
264.258(c), permitted surface, impoundments and waste piles that
dc not meet liner design standards are required to prepare
contingent post-closure plans in case they must close as
disposal facilities.
III.N.2 Summary of Proposed Rule
The Agency proposed to require explicitly in §§264.118(b)
and 265.118(a) that those surface impoundments 'or waste piles
not initially required to prepare contingent closure and
post-closure plans under §§264.228(c) or 264.258(c) must submit
*
a post-closure plan within 90 days of a determination that the
unit or facility must be closed as a landfill. The Agency also
proposed to clarify the contents of the post-closure plan.
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Finally, the Agency proposed to require that the post-closure
plan explicitly address the post-closure care activities and
the frequency of these activities applicable to each disposal
unit.
III.N.3 Rationale for Proposed Rule
Under the regulations in §§264.228(c) and 265.258(c),
owners or operators of surface impoundments and waste piles
that meet the liner design standards are not required to
prepare contingent post-closure plans for the possibility that
they may be required to close as landfills. Under §§264.228(b)
and 264.258(b), however, such facilities could be required by
the Regional Administrator to be closed as landfills jf it is
not possible to remove all contaminated soils at closure.
Similarly, interim status surface impoundments and waste piles
intending to remove all hazardous wastes at closure are not
required under §§265.228 or 265.258 to prepare post-closure
plans, although they may be required to close as disposal
facilities.
The Agency was concerned that because such facilities
would not have post-closure plans, the owners or operators
would not be adequately prepared for post-closure care
activities. As a result, the Agency proposed to require that
all impoundments and waste piles, not otherwise subject.to the
post-closure plan requirements, submit post-closure plans for
approval within 90 days after the determination that the unit
would be used as a landfill.
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The Agency also proposed to require that the post-closure
plan explicitly address the post-closure care activities and
the frequency of these activities applicable to each disposal
unit at a facility.
III.N.4 Comments and Responses
The Agency received only one comment on this issue.
The proposed language: "certain surface
impoundments and waste piles from which the owner
or operator intends to remove or decontaminate
the hazardous wastes at partial or final closure
. . . " should be changed to "certain surface
impoundments and waste piles from which the owner
or operator is required to or intends to remove
or decontaminate wastes at closure" to have
post-closure plans.
The language adopted by the Agency in the final rule
satisfies'the same purpose as the language suggested in the
comment.
III.N.5 Final Rule
The final rule was promulgated as proposed with three
clarifications. First, owners or operators of permitted
facilities must comply with all Parts 124 and 270 procedures
applicable to modifying the conditions of their permit.
Second, the inadvertent reference in §265.118 to contingent
plans required under §§264.228 and 264.258 has been dropped.
It has been replaced with language requiring that surface
impoundments and waste piles that intend to remove all
hazardous wastes at closure must submit post-closure plans
within 90 days after the determination that the unit must be
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closed as a landfill. Third, as discussed in Section III.F,
the Regional Administrator may request modifications to the
post-closure plans.
III.O Post-Closure Notices
§§264.119 and 265.119
III.0.1 Synopsis of Previous Regulation
Sections 264.119 and 265.119 previously required the owner
or operator of a facility subject to post-closure care to
submit to the local zoning authority, or the authority with^
jurisdiction over local land use, and to the Regional
Administrator, within 90 days after final closure a record of
the wastes disposed of within each cell or area of the
facility- Sections 264.120'and 265.120 previously required
that a notation be filed on the deed to the property indicating
its use as a disposal facility. The notation was required to
give notice that the plat and record of wastes had been filed
with the appropriate local land use authority. Section
264.120(b) previously provided that if the owner or operator
subsequently removed all hazardous wastes and residues, the
notice in the deed could be removed or a notation could be
added indicating all wastes had been removed. No parallel
provisions existed under Part 265.
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HI.0.2 Summary of Proposed Rule
The Agency proposed to (1) consolidate the requirements to
submit a record of waste and deed notice in §§264.119 and
265.119; (2) extend the notice requirements (i.e., record of
waste-and notice in deed) to partial closures; (3) reduce the
deadline for submitting the deed notice and record of waste tc
60 days after closure of each disposal unit; (4) require that
owners or operators, if they remove hazardous wastes during the
post-closure care period, request permission from the Regional
Administrator to remove the notice from the deed or to add
another notice to the deed indicating the removal; and (S)
require the owner or operator to submit a certification to the
Regional Administrator that thje notation has been recorded.
along .with a copy of the deed or other document in which the
notice has been placed.
III.0.3 Rationale.for Proposed Rule
The Agency considers the deed notation to be an important
means of ensuring that prospective or subsequent owners of the
property are informed of the presence of hazardous wastes, the
existence of federal restrictions on land use, and the
availability of the survey plat and waste record at the local
land use authority. The Agency therefore proposed to require
that the owner"or operator record the notation on the deed. In
addition, the owner or operator must submit a certification
stating that the notation has been recorded and a copy of the
recorded document to the Regional Administrator for review
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within 60 days after the certification of closure of each
hazardous waste disposal unit. The Agency also proposed that
the record of waste be filed with the local land authority and
the Regional Administrator within 60 days after closure of each
hazardous waste disposal unit. Because the information on how
wastes have been handled should be readily available in the
owner's or operator's operating record, the reduced deadline
should not be burdensome.
The Agency clarified in §264.119(c) that an owner or
operator of a permitted facility must request a modification to
the post-closure permit in accordance with Part 270
requirements prior to removing hazardous wastes. For Interim
status facilities, the proposal added additional language in
§265.119(c) to specify that if an owner or operator wishes to
remove hazardous wastes, he must request the approval of the
Regional Administrator to amend the approved post-closure plan
prior to the removal of the hazardous wastes. In addition, the
owner or operator must demonstrate compliance with the criteria
in §§264.117(c) and 265.117(c) for post-closure use of
property. Moreover, because the owner or operator would be
conducting hazardous waste management activities, he must
comply with all applicable generator requirements and with all
post-closure permit conditions.
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III.0.4 Comments and Responses
III.0.4.1 .Problems with Deed Notice
Carrying out this deed notice requirement may
be difficult. In many, if not most,
jurisdictions, the only way to accomplish a deed
notation is to write a new deed by means of
"sale" of the property to a straw party, who in
turn reconveys it to the original property
owner. Although there may be other documents
that can be entered upon the title record in many
jurisdictions, the method by which this can be
done varies widely in local, county and State
practice. EPA therefore should revise the deed
notification provision to require it prior to any
sale or transfer of the property, if such sale
occurs prior to final closure of the facility,
rather than at the time of partial closure.
EPA should tailor the deed'notification
provision to require it prior to any sale or
transfer of the property, should such sale occur
prior to final closure of the facility, rather
than at the time of partial closure of a land
disposal facility- In this manner, the purpose
of the deed notation requirement will be met, but
paperwork burdens .for the owner or operator, as
well as for the Agency, will be substantially
diminished.'
The notice in the deed should be provided at
closure of the first hazardous waste management
unit and not for each subsequent unit closure.
Renotification and deed restrictive notation
verification should be made at final closure.
It seems sufficient that, upon final closure of
all hazardous waste management units, a plat be
filed and, if possible under State law, a
notation to a deed be made. It seems unnecessary
to follow this procedure at closure of each unit,
since the continued active hazardous waste
management alerts everyone to the existence of
hazardous waste activity at the site.
The Agency agrees with those commenters who argued that
filing a notice in the deed after closure of each hazardous
waste disposal unit could impose significant burdens,
especially if dummy sales were required, and would not be
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necessary to ensure that future purchasers of the land were
aware of the land's prior uses. Filing a notice after the
first partial closure of a hazardous waste disposal unit and
amendment of the notice after closure of the last hazardous
waste disposal unit should adequately alert all future owners
of the land's prior use. Therefore §§264.119 and 265.119 have
been revised to require that the notice in the deed and the
certification to the Regional Administrator must be submitted
within 60 days of closure of the first and last hazardous waste
disposal unit.
The Agency believes that certification and copies of the
deed notice should be furnished to the Regional Administrator.
As part of its analysis, EPA surveyed local recorders of deeds
in 20 different localities where hazardous waste disposal
facilities had closed, in order (1) to determine how prior deed
notices have been placed in the .record and (2) to estimate the
need for certification that the notation was recorded.
Local recorders of deeds verified that procedures for
recording a deed differ among jurisdictions. Some
jurisdictions allow an instrument to be amended with a note on
the first page that refers to the change. Other jurisdictions
require a new deed to be recorded in the event of changes. Any
document conveying or affecting a legal interest is recordable,
provided in most jurisdictions that it is properly notarized.
* Post-Closure Notices in Deed, December 6, 1985,
Memorandum to Carole J. Ansheles, EPA/OSW from Margaret
Bracken, David Salvesen, and Craig Dean, ICF Incorporated.
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A few recorders of deeds suggested that a restrictive covenant
could be used as the required notice, and one instance was
found in which that was done.
In general, recorders suggested that fees for recording
would not be large, amounting to $3.00 to $5.00 for the first
page and $1.00 to $2.00 for each additional page. Deeds are
ordinarily quite short, (5-8 pages). In addition, lawyers'
fees (for an estimated four hours of labor) would probably
range from $100 to $500 for preparation of the deed and
arranging the filing." The-Agency has therefore concluded
that this requirement will not be burdensome or costly, even if
re-recording is necessary.
The Agency's survey also suggested that the certification
requirement is necessary to ensure that EPA can verify that
notices are being placed in deeds. The Agency found it is
generally difficult to obtain information by telephone from
local recorders of deeds concerning particular*- sites. Because
telephone verification of deed notations is not feasible, the
Agency is convinced that copies of the deed notices should be
furnished to the Regional Administrator as verification.
Finally, EPA concluded that certification is necessary to
help ensure compliance with the requirement. The Agency's
survey indicated that in many instances, notices for previously
closed disposal facilities were not placed in deeds. The
' Revised first party and third party costs for Part 264
landfill closure and post-closure, July 31, 1985, Memorandum to
Jim Craig, EPA/OSW from Shirley J. Smith, Pope-Reid Associates,
Inc.
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Agency believes that the requirement for certification,
including a copy of the document in which the notice has been
placed, will make it more likely that the notice will be placed
in the deed as required.
III.0.4.2 Deadlines for. Filing Notices
Owners or operators should be required to
submit post-closure notices to the local zoning
or land use authority only after the facility is
finally closed and not after each partial
closure. Also the notice in the deed should be
provided at closure of the first hazardous waste
management unit and not for each subsequent unit
closure. Renotification and deed restrictive
notation verification should be made at final
closure.
There should be some flexibility in the timing
of submittals of post-closure notices, especially
if several units are being closed at about the
same time. The regulations could require that
the notices be provided to the Regional
Administrator 30 days prior to a sale of the
facility to ensure timely notice in the event of
transfer of ownership. Otherwise, we recommend
the notice be submitted within 180 days afcer
closure of each unit.
The Agency disagrees that it would be a burden to submit
the record of hazardous waste to the local land authority and
Regional Administrator within 60 days after each partial
closure of a hazardous waste disposal unit. Under §§264.73 and
265.73, an owner or operator must record and maintain in the
facility operating record information on the types and
quantities of "hazardous wastes handled at 'the facility and the
location of hazardous waste within each disposal area.
Therefore, the owner or operator would simply be required to
submit a copy of readily available records to the local land
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authority and the Regional Administrator. In light of these
considerations, the final rule retains the requirement that
within 60 days after the certification of closure of each
hazardous waste disposal unit the owner or operator must submit
to the local zoning authority, or the authority with
jurisdiction over local land use, and to the Regional
Administrator, a record of the type, location, and quantity of
hazardous wastes disposed of within that disposal cell or unit.
III.0.4.3 Notice from Subsequent Owner "to Former Owner
The subsequent owner or operator should be
required to provide notice of any petition to
remove'hazardous wastes to the original facility
owner or operator and generator of the hazardous
wastes, if known.
The Agency believes that notice to a former owner or
operator of a facility by a subsequent owner or operator that
hazardous wastes may be removed can be a matter of private
contractual arrangements between the two parties at the time
the facility is sold. If the seller wishes to receive such
notice, arrangements to that effect can be added to the
contract of sale, and need not be specified by EPA.
III.0.4.4 Removal of Deed Notations
The requirement that owners and operators seek
the Regional Administrator's approval to remove
deed notations will impose an undue burden on
owners or operators attempting to transfer their
property unless the Regional Administrator is
required to act within a reasonable period such
as 10 days.
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The Agency believes that if an owner of the land upon
which a hazardous waste management unit was located decides to
sell or otherwise transfer the property, and wishes to do so
i
after removing the notation on the deed, they can take steps to
have the notice removed prior to the time of sale. Thus, the
short deadline for action by the Regional Administrator
suggested by this comment is not necessary.
III.0.4.5 Notice to Other Parties
The owner/operator should notify the known
holders of rights of way to lessen the chance of
inadvertent breeching of closure containment
systems. Notice should also be given to known
holders of subsurface rights.
In the preamble to the proposed rule, the Agency requested
comments on notifying parties with rights-of-way on property of
the property'.s prior use to dispose of hazardous wastes.
Although the Agency agrees that it is important to ensure that
all potentially interested parties are aware of the prior use
of land to dispose of hazardous wastes, it does not want to
impose unnecessary burdens on owners or operators.
Frequently, parties-with subsurface rights or
rights-of-way will have obtained them through easements
affecting a portion of the property. An easement is a right to
use the land belonging to another person for a special
purpose. Both' surface rights-of-way, which are rights allowing
one person to pass over the land of another, and subsurface
rights for pipelines, cables, sewer lines, and mining, can be
acquired by easement. The Agency therefore examined the
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question of the legal duties that landowners owe to the holders
of easements to their property, including any duties to inform
easement holders of changes to the property.
Easements can be created in several ways, including by an
express grant from the landowner to the easement holder, by
public condemnation, by implication, and by prescription (also
known as adverse use). An express grant is generally a written
agreement. It would probably be recorded, and therefore the
holder of the easement would be informed by the deed notice of
the presence of hazardous waste. Other forms of creation of
easements, however, may not be in writing. An implied easement
can be formed when a piece of land is subdivided, and an
easement on one parcel is necessary for the reasonable use of
another parcel. In this case, the deed notice would probably
be effective to alert the easement holder of the presence of
hazardous waste. Prescriptive easements are formed after
several years (in most States 21 years) of continuous use of
the land without the permission of the landowner. Sometimes a
prescriptive easement is confirmed by a court order. Either
the lengthy use or the order would probably provide notice.
Finally, an easement may be formed by the process of legal
condemnation. Most States allow 'condemnation, for example, by
utility companies when necessary for the placement of pipes or
transmission lines'. Such an easement would be in writing and
recorded, and would be created in such a way that the easement
holder would become aware of the presence of hazardous waste.
In addition, most States hold that a new owner of land has
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notice of easements on the land if the easements could have
been detected by reasonable inspection, were recorded in the
deed, or if- the new owner had actual notice. A new owner or
operator of a hazardous waste management facility would
probably know of easements created by a previous owner.
Most States apparently do not require an owner to keep
easement holders informed of changes to the land. In general,
an owner of land is under no duty other than to abstain from
acts inconsistent with the rights of the easement holder. The
owner can use the land in any way that does not render the
exercise of the easement unreasonable, difficult, costly, or
burdensome. The owner is under no duty to take affirmative
action, such as giving notice of the closure of a hazardous
waste facility, if the -closure would not interfere with the use
of the easement.
The Agency believes, however, that several means already
exist by which easement holders can be informed concerning the
presence of hazardous waste besides notice from the owner or
operator. First, if the hazardous waste management activities
are present and obvious at the time the easement was granted or
created, the easement holder will have actual notice. Second,
an easement holder may refer to a deed or a plat of the
property, and the deed or plat will contain information
concerning the" presence of hazardous waste. Finally, following
closure, both the deed notice and necessary security provisions
will provide warnings concerning the property. Therefore, the
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Agency is not requiring notice by the owner or operator to
holders of rights-of-way or subsurface rights.
III.0.5 Final Rule
'The final rule revised the proposed rule slightly to
require the record of the type, location, and quantity of
wastes to be submitted "no later than" instead of "within" 60
days after closure of each disposal unit. The final rule also
requires the owner or operator to place a notation on the deed
or other instrument within 60 days of certification of closure
of the first hazardous waste disposal unit and within 60 days
of certification of closure of the last hazardous waste
disposal unit, rather than after closure of each unit. The
balance of the rule was adopted as proposed.
III.P Certification of Completion .of Post-Closure Care
§§264.120 and 265.120
III.P.I Synopsis of Previous Regulation
The previous regulation did not require an owner or
operator to certify that post-closure care activities had been
conducted in accordance with the approved post-closure plan.
III.P.2 Summary of Proposed Rule
The Agency proposed to require that an owner or operator
submit to the Regional Administrator, within 30 days after
completing the established post-closure care period, a
certification signed by him stating that all post-closure care
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activities had been conducted in accordance with the approved
post-closure plan. If the owner or operator partially closed
more than one disposal unit prior to final closure and
completed the post-closure care period for each unit at
different times, he would be required to submit certifications
subsequent to the completion of each post-closure care period.
The Agency requested comments on the desirability of
requiring post-closure certifications on an annual or periodic
basis (e.g., every five years).
III.P.3 Rationale for Proposed Rule
Appropriate post-closure care activities are essential to
ensure the continued protection of human health and the
environment after the termination of the ppst-closure care
period. Requiring post-closure care certifications will help
ensure that the facility has been adequately maintained during
the post-closure care period.
III.P.4 Comments and Responses
Comments on post-closure care certifications ranged from
opposing any certifications to supporting frequent
certifications for each unit.
III.P.4.1 Periodic Certifications During the Post-Closure Care
Period"
Annual or periodic certifications serve no
meaningful purpose.
There is no demonstrated need for annual or
periodic certifications.
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An annual certification of post-closure is
necessary.
Certification at the time of completion of
post-closure care activities is acceptable, but
the need for annual or periodic certification has
not been demonstrated. Section 231 of HSWA
amends Section 3007 of RCRA to require
inspections of facilities at least once every two
years. Presumably, this requirement will apply
to facilities with post-closure care permits.
Furthermore, land disposal facilities will
generally be required to carry out ground-water
monitoring. These requirements should provide an
ample check on the diligence with which a
facility's owner or operator is conducting
post-closure care.
The permit, regulations, and statute all
provide a duty to perform post-closure care as
described in the plan. Presumably, USEPA will be
making inspections during the post-closure care
period and will.be able to determine whether
activities are being conducted in accordance with
the plan. For a site with many partial closures,
certification on an annual or periodic basis
would simply be moire paperwork.
Post-closure certification should be required
only at the end of the post-closure period.
Annual reports and biannual facility inspections
should provide enough information to verify
proper post-closure care of individual units.
Certification should not be required more often
than every five years.
Certification is necessary only at five-year
intervals. Such certification should simply
state that the records have been maintained
verifying that post-closure care activities were
conducted in accordance with the regulations.
The post-closure permit and plan should contain
specific activities and explicit milestones for
reports so that monitoring for compliance can be
done. We do not support the concept of no
reports until final certification of closure.
Certification should be required as often as
post-closure inspections are done. For example,
post-closure certification would be required
every year for the first five years, then every
five years after that.
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If closure has not been properly conducted,
certification of completion of post-closure
activities may be too late to prevent significant
spread of contaminants. Monitoring results
required as part of post-closure care should be
submitted to the Agency on a periodic basis. At
the same time, the owner/operator could certify
that the post-closure activities are proceeding
according to plan.
The Agency was unconvinced by those who argued for
periodic certifications. Expanding post-closure care
certification requirements would create an administrative
burden, for both the Agency and owners or operators, especially
for facilities with many units with independent post-closure
care periods. Site-specific cases in which periodic
certifications might be desirable can be handled in other ways
instead of imposing a requirement for all disposal units. For
example, post-closure plans must include a detailed schedule of
activities, which could incorporate additional certification
requirements.
Although the Agency does not consider periodic
certifications necessary, it regards certification upon
completion of the post-closure care period essential for each
unit. . The Agency's reasoning is the same as for closure
certification. Certification verifies that post-closure care
activities have been performed properly; it also triggers.
release from financial responsibility requirements.
Certification at the end of the post-closure care period
should not be difficult for owners or operators who have
conducted post-closure care according to the post-closure
plan. Adequate records should be maintained throughout the
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post-closure care period so that it is possible to certify that
post-closure care activities were conducted according to the
approved post-closure plan. If post-closure care activities
are carefully documented, the only reason for not having full
knowledge of post-closure care activities should be a transfer
of ownership. In this case, a prudent new owner would require
certification from the initial owner as a condition of sale,
because the new owner will be fully responsible for later
certifying the entire post-closure care period.
III.P.4.2 Certification by Independent Engineer or Agent
Certification should be made.by an independent
professional engineer.
If the Agency does require such certifications,
it -should allow the certifications to be made by
a designated agent as well as the owners or
operators because of the high probability that
the owners or operators will contract for
post-closure care.
The Agency agrees that the post-closure certifications
should be performed by an independent registered professional
engineer to be consistent with the closure certification. As
discussed above in Section.III.K for closure certification, the
Agency believes it is critical to have an objective evaluation
when determining whether or not to release the owner or
operator from future post-closure care obligations. Therefore,
consistent with the revisions concerning closure certifications
(§§264.115 and 265.115) the final rule requires post-closure
care certification by both the owner or operator and an
independent professional engineer.
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The Agency does not agree that certification should also
be required from a designated agent of the owner or operator,
if the owner or operator has contracted with a third party for
post-closure care. Under the doctrine of respondeat superior
the owner or operator will be legally responsible for the
facility or unit, even if the care is performed by an agent.
Therefore, the Agency has concluded that certification by the
agent as well as by the owner or operator would be
unnecessary. In contrast, certification is required from an
independent professional engineer in addition to the owner or
operator precisely because an independent engineer is not an
agent of the owner or operator.
III.P.4.3 Extensions to Deadlines
The Agency should allow extensions of the
30-day deadline for submitting post-closure
certifications upon presentation of justification
to the Regional Administrator.
The Agency recognizes that when the end of the
post-closure period coincides for several units, additional
time may be needed to prepare certifications. Therefore, the
Agency increased the time period allowed for submitting the
certification. The final rule provides that the certification
must be submitted by an owner or operator no later than 60
days, rather than 30 days, after completion of the established
post-closure care period.
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III.P.5 Final Rule
The Agency in the final rule is adding two additional
requirements to those included in the proposed rule. First,
i
the post-closure care certification must be prepared by the
owner and operator and an independent registered professional
engineer to be consistent with closure certifications. Second
the certifications must be submitted by registered mail. The
final rule extends the deadline for filing the certifications
to "no later than 60 days after completion of the established
post-closure care period for each hazardous waste disposal
unit," rather than within 30 days after completion. In
addition, the final rule requires that documentation supporting
certification be furnished to the Regional .Administrator until
the owner or operator is released from the post-closure care
financial assurance requirements.
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IV. STANDARDS FOR PERMITTED FACILITIES (PART 264) AND
CONFORMING CHANGES TO INTERIM STATUS STANDARDS (PART 265)
FINANCIAL ASSURANCE REQUIREMENTS (SUBPART H)
IV.A Cost Estimates for Closure and Post-Closure Care
§§264.142(a), 264.144(a), 265.142(a), 265.144(a)
IV.A.I Synopsis of Previous Regulation
The previous rules for preparing cost estimates did not
specify whether cost estimates should be based on the cost to
the owner or operator of supplying his own labor and equipment
(first-party costs) or on the cost of hiring contractor labor
and renting equipment (third-party costs). The previous rules
also did not specify whether the cost estimates could include
credit for salvage value from hazardous wastes or equipment.
IV.A.2 Summary of Proposed Rule
In the proposed rule, the Agency specified that closure
and post-closure cost estimates must be based on the costs to
the owner or operator of hiring a third party to perform
closure or post-closure care activities. The Agency also
specified that salvage value that might be realized from the
sale of hazardous wastes, facility structures or equipment,
land, or other assets associated with the facility could not be
incorporated into the cost estimate for closure or post-closure
care.
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IV.A.3 Rationale for Proposed Rule
The purpose of financial responsibility is to ensure that
funds are available to cover the costs of closure and
post-closure care if the owner or operator goes bankrupt or for
some -other reason is unable to pay. If first-party costs are
used as the basis for the cost estimate upon which financial
assurance is based and an owner or operator declares bankruptcy
or abandons the facility, adequate funds might not be available
to cover the costs of closure or post-closure care if
third-party labor and equipment must be hired. Because the
cost estimates serve as the basis for determining the amount of
financial assurance needed, the Agency concluded that only
third-party costs are consistent with the overall objectives of
the financial assurance requirements.
To further ensure that the cost estimate is always
sufficient to cover the costs, of closing the facility, the
Agency proposed to disallow salvage value as a credit when
calculating the cost estimates. The owner or operator would
remain free to realize salvage value from hazardous wastes or
equipment at closure, if possible. However, the Agency cannot
be assured that hazardous wastes at the facility will have
economic value or even that a third party will_take the
hazardous wastes at no charge at the time of closure.
Similarly, the Agency cannot be certain that equipment or other
assets at the facility can be sold. Finally, in many cases the
Agency will not have a means of verifying the fair market value
of allegedly salvageable goods. Therefore, the proposed rule
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prohibited the owner or operator from deducting credits for
salvage value from the estimate of the costs of closure.
IV.A.4 Comments and Responses
IV.A.4.1 First-Party vs. Third-Party Costs
Commenters were sharply divided about the use of
first-party or third-party costs, with a number of comments
arguing for each approach.
The proposed rule is correct that third-party
costs should be used as the basis of cost
estimates, and no credit should be allowed for
potential salvage, recycle, or property sale.
The third-party approach should be adopted.
However, because most contractors do not have a
scale of unit costs (e.g., cost to decontaminate
a 10,000 gallon tank), there may be high
variability in prices between contractors. The
Agency should make available a unit cost scale
which would allow evaluation of.closure costs
within the same framework.
If a company has the in-house engineering,
environmental, laboratory and other necessary
disciplines, it should be allowed to use those
disciplines at their internal .costs rather than
at outside consulting costs.
EPA has not demonstrated a need to require
third-party cost estimates.
Use of third-party costs rather than
first-party costs should not be required because
contractors' estimates will be difficult to
develop due to a shortage of contractors
qualified to do such work. In addition,
contractors' estimates may not be as accurate as
estimates made by owners and operators with
greater familiarity with facility characteristics.
EPA has not provided sufficient explanation of
what activities are included in closure that
would be carried out by a third party. For
example, must the final volume of wastes from an
on-site disposal facility be disposed of
off-site; must a third-party hauler transport the
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waste; can waste shipped off-site be managed by a
corporate affiliate of the first facility?
Using third-party costs would substantially
increase closure cost estimates as well as the
costs of obtaining financial assurance. *
Using third-party costs would at least double
the cost of closure to the regulated community.
Estimates of closure costs should be based on
either third-party costs or use of an owner or
operator's own personnel and disposal capacity.
A request for the use of the latter should be
accompanied by documentation verifying the
schedule of closure for each unit in question.
For the reasons stated in the Section IV.A.3 of this
document, the Agency is convinced that a third-party
requirement is necessary to satisfy the objectives of financial
responsibility- The Agency believes that it will not be
difficult to prepare third-party cost estimates. Such cost
estimates can be developed using readily available cost
estimating manuals. The Agency is preparing guidance on the
preparation of cost estimates for closure that will present
standard methods and checklists that will help to reduce
variations among contractors concerning the costs of closure
activities. ''The Agency also disagrees that a third-party
requirement will result in less accurate estimates. An owner
or operator has the option of preparing the estimates himself,
relying on cost estimating manuals or personal experience, or
of obtaining expert assistance in the preparation of cost
estimates.
The Agency also does not agree that a third-party estimate
will double the costs of closure. In a comparative analysis of
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first- and third-party costs,7 the Agency concluded that the
cost differences are not likely in many cases to be large. Few
owners or operators are likely to have in-house expertise or
the appropriate equipment available to conduct some of the more
*
expensive activities, such as cover installation, and will
therefore routinely hire a third party. Furthermore, the final
rule provides that the owner or operator may use on-site
disposal costs if he can demonstrate that on-site disposal
capacity will exist at all times over the life of the
facility. Because the cost of shipping hazardous wastes is a
major portion of the total costs of closure, allowing the owner
or operator to incorporate the costs of a third party disposing
of hazardous wastes on-site will reduce the cost estimate
significantly.
IV.A.4.2 Definition of Third Party
The definition of third party is unclear. If
waste is shipped off-site for disposal or
treatment can it be managed at a facility owned
by a corporate affiliate?
The Agency agrees the proposed rule is.ambiguous. The
final rule adds a definition of a third party to the
regulation. A third party is defined as a party who is neither
a parent nor a subsidiary of the owner or operator. This
definition is .consistent with the definitions in Subpart H in
7 Revised First Party and Third Party Closure Costs For
all the Hazardous Waste Treatment, Storage, and Disposal
Technologies, September 13, 1985, to Jim Craig, EPA/OSW, from
Shirley J. Smith, Pope-Reid Associates, Inc.
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§§264.141 and 265.141, which specify who is eligible to provide
a corporate guarantee for closure or post-closure care. These
regulations specify that a parent is a corporation that
directly owns at least 50 percent of the voting stock of the
corporation that is the facility owner or operator; the latter
corporation is the subsidiary.
IV.A.4.3 Third-Party Costs Only for Trust Fund Users
The third-party cost requirement should apply
only to those facilities whose owners must use
the trust fund for financial assurance.
Firms who use the financial test or corporate
guarantee for financial assurance should not be
required to use third-party costs.
' EPA has concluded that cost estimates based on third-party
costs should be required for owners or 'operators using all
types of financial assurance mechanisms, including the
financial test. The financial test is intended to ensure that
an owner or operator who passes the test has the financial
»
capability to establish one of the alternative fornis of
assurance should he later'fail the test. The criteria of the
test that are dependent on the size of the cost estimates are
intended to provide an adequate margin of safety so that the
alternative mechanisms can be established before any potential
insolvency occurs. Because the other forms of financial
assurance will be based on third-party costs, the multiples
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must also be based on third-party costs. An analysis'
performed for the Agency of the financial strength of owners of
TSDFs suggests that few firms able to pass the financial test
using first-party costs would fail under a third-party cost
estimating requirement.
IV.A.4.4 Salvage Value
Salvage value of used equipment should be
allowed to be included in the closure cost
estimate when brokers or dealers for the used
equipment can be identified.
Identifying brokers or dealers who routinely purchase used
equipment does not indicate with the necessary degree of
certainty that the owner or operator will in. fact be able to
dispose of the particular used equipment at the facility at
closure. Therefore the Agency is continuing to disallow a
credit for salvage value in the cost estimates. Furthermore,
to avoid potential ambiguities, the Agency is also precluding
the owner or operator from assuming that at closure a third
party will take the hazardous wastes at no charge. The cost
estimate must incorporate the costs of a third party disposing
of the wastes either on-site if capacity is available or
off-site.
' Comparison of Costs of a First vs. Third-Party Cost
Estimating Requirement to Owners or Operators Using the
Financial Test, November 4, 1985, Memorandum to Carole J.
Ansheles, EPA/OSW, from John Bohnen, Liz Wallace, Robin
Rodensky, ICF Incorporated.
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IV.A.5 Final Rule
The proposed rule on the use of third-party costs for cost
estimates is being adopted as final with several changes.
First, the rule was amended to provide that the owner or
operator may use costs for on-site disposal if he can
demonstrate that on-site disposal capacity will exist at all
times over the life of the facility. Second, the final rule
defines third party as "a party who is neither a parent nor a
subsidiary of the owner or operator." This definition is
consistent with the language in Parts 264 and 265 Subpart H.
Third, the final rule clarifies that the costs of disposing of
the remaining hazardous waste at closure may not be
incorporated in the estimate at zero cost. Finally, the rule
adds the word "detailed" to the cost estimate requirement to
help ensure that sufficient information is included in the cost
estimate.
*
IV.B Anniversary Date for Updating Cost Estimates for
Inflation
§§264.142(b), 264.144(b), 265.142(b) and 265.144(b))
IVrB.l Synopsis of' Previous Regulation
The previous regulation required owners and operators to
update closure and post-closure cost estimates for inflation
within 30 days after the anniversary of the date that the
estimates were first prepared. The adjustment was required to
be made using an inflation factor derived from the annual
Implicit Price Deflator for Gross National Product as published
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by the U.S. Department of Commerce in the Survey of Current
Business.
IV.B.2 Summary of Proposed Rule
The proposed rule required owners or operators to revise
their cost estimates within 60 days prior to the anniversary
date of the establishment of their financial assurance
mechanism. Cost estimates of a company using the financial
test would have to be updated within 30 days of the end of its
fiscal year. The Agency also proposed to allow firms to adjust
cost estimates by either (1) recalculating the maximum costs of
closure in current dollars,' or (2) adjusting the cost estimate
using an inflation factor derive'd from the most recent annual
Implicit Price Deflator for Gross National Product. . .
IV.B.3 Rationale for Proposed Rule
The purpose of the proposed change was to achieve a more
adequate level of financial assurance. Under the previous
rule, the financial instrument could have been updated before
preparation of the most recent cost estimate, since the
anniversary date for the instrument and the anniversary date
for the cost estimate were not necessarily related. The
proposed rule was intended to ensure that the instrument is
always based on an updated cost estimate, since the cost
estimate is required to be updated within 60 days prior to the
anniversary date of the establishment of the financial
instrument.
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The Agency also proposed to allow owners or operators to
update their estimates annually for inflation by either
converting their cost estimates into current dollars or by
using the most recent annual Implicit Price Deflator.
IV.B.4 Comments and Responses
IV.B.4.1 Anniversary Date
The proposed revision concerning the date by
which a facility must adjust its closure and, if
applicable, post-closure estimates is desirable
and should be adopted.
All estimates should be updated around a common
date, such as at the end of a firm's fiscal year,
or around a "unified schedule."
A "theoretical" anniversary date should be
established based on the effective date of the
regulations around which all firms should be
required to.prepare their cost estimates.
The Agency believes that updating the cost estimate within
60 days prior to the anniversary date of the establishment of
financial assurance instruments will help ensure the adequacy
of the financial assurance. Updating cost estimates around a
common date would defeat this purpose in many cases because the
update would not"always be immediately prior to the anniversary
of the financial mechanism. A unified schedule, although it
would link the two anniversary dates, would impose an undue
burden on those owners or operators who updated cost estimates
or renewed their financial responsibility instrument just prior
to the newly established unified date.
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IV.B.4.2 Use of Current Dollars
The option of recalculating cost estimates for
closure and post-closure care using either the
most recent Implicit Price Deflator for GNP or by
calculating the cost using current dollars at the
time of calculation is desirable and should be
adopted.
Recalculating cost estimates in current dollars
may produce lower estimates and owners or
operators may petition to get a reduction in
their financial assurance mechanism. This
process may not be completed in time to comply
with the financial assurance anniversary date.
The Agency agrees that allowing owners or operators to
recalculate cost estimates in current dollars is desirable.
Such estimates will be based on the most current and accurate
price information.
Although recalculations in current dollars may sometimes
result in lower cost estimates, EPA does not anticipate delays
in processing requests for reductions in financial assurance
mechanisms. Sections 264.143(a), 264.l43(b), 264.143(c),
264.143(d), 264.143(e), and the corresponding provisions under-
the Part 265 regulations provide that if the value of the trust
fund, surety bond, letter of credit, or insurance policy is
greater than the total amount of the current closure cost
estimate, owners or operators may petition for a reduction of
the amount following written approval from the Regional
Administrator. The Agency recognizes that it is important to
expedite requests to reduce financial assurance, and, as a
matter of course, processes such petitions within a reasonable
time period.
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IV.B.4.3 Estimates Based on Real Closure Costs
Current cost estimates should be required to
reflect real closure costs as closely as possible.
The Agency agrees with commenters who pointed out that
cost components may increase for reasons other than adjustments
for inflation. Market forces may cause the prices of
individual cost components to increase or decrease at different
rates than the overall rate of inflation or deflation. The
Agency therefore is allowing owners or operators to reflect, as
closely as possible, "real closure costs" in their estimate by
recalculating the cost estimate in current dollars. This
option will require an owner or operator to separate the cost
estimate into cost components and determine the current market
price of each component in the same manner as the initial cost
estimate was prepared. Because recalculating the estimates
using current dollars may involve considerable time and effort,
the final rule retains the option of adjusting the cost
estimate using the most recent annual Implicit Price Deflator.
IV.B.5 Final Rule
The final rule is promulgated as proposed.
IV.C Revisions to the Cost Estimates
§§264.142(c), 264.144(c), 265.142(c), 265.144(c)
IV.C.I Synopsis of Previous Regulation
The previous rule required owners or operators to revise
their cost estimates whenever changes in the plans increased
the costs of closure or post-closure care. Post-closure cost
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estimates were required to be revised only during the operating
life of the facility. The regulations did not, however,
specify deadlines for updating the cost estimates.
IV.C.2' Summary of Proposed Rule
The proposed rule added a 30-day deadline for revising the
cost estimates if the change in plans increased the cost of
closure or post-closure care. The Agency proposed to require
owners or operators of permitted facilities, or interim status
facilities with approved closure or post-closure plans, to
modify their cost estimates within 30 days after the Regional
Administrator had approved the change that increased the cost
estimate. (The proposed §264.142 inadvertently retained the
language of the previous rule, which required a revised
estimate if a change in the plan "affected," i.e., increased or
decreased, the estimate.) Similarly, for interim status
facilities without approved closure or post-closure plans, the
proposed rule required the cost estimates to be adjusted within
30 days of the change in the plans if the change increased the
cost of closure or post-closure care.
IV.C.3 Rationale for Proposed Rule
Changes in the closure or post-closure plan could result
in an increase 'in the costs of closure or post-closure care
(e.g., off-site rather than on-site disposal of wastes at
closure). If such changes are not incorporated into the cost
estimates in a timely manner, the amount of financial assurance
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available will be inadequate. The proposed regulation would
ensure the availability of adequate funds.
IV.C.4 Comments and Responses
The 30-day deadline should only apply if the
closure cost estimate increases. Reductions in
the cost estimate should take place at the time
that the estimate is adjusted for inflation.
EPA should require all revisions to be
reported within 30 days.
A 30 day deadline is necessary to ensure that
cost estimates are revised in a timely manner due
to a change in the plans.
.The Agency still agrees that revisions should be required
within 30 days only if modifications to the closure or
post-closure plans increase the closure or post-closure cost
estimate. The Agency inadvertently used the word "affects"
rather than "increases" in §264.142. The revised cost-estimate
also must be adjusted for inflation as specified in
§264.142(b). While the owner or opera-tor is not required to
reduce the cost estimate if a plan changes, he is free to do so.
IV.C.5. Final Rule
The Agency has revised the final rule to correct the error
in proposed §264.142(c) to clarify that the 30-day deadline for
modifying cost estimates is applicable only when the
modifications to the plans increase the costs of closure or
post-closure care. The final rule also makes a minor change
from "within 30 days" to "no later than 30 days."
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IV.D Closure and Post-Closure Cost Estimates
§§264.142(c). 264.144(c), 265.142(c), and 265.144(c)
IV.D.I Synopsis of Previous Regulation
Sections 264.144(c) and 265.144(c) previously required the
owner- or operator to revise the post-closure cost estimates
during the operating life of the facility whenever a change in
the post-closure plan increased the cost of post-closure care.
The previous rule did not define the operating life of the
facility or otherwise specify the period of time during which
the cost estimates must be revised.
IV.D.2 Summary of Proposed Rule
The Agency proposed in §260.10 to define active life as
the period from the initial receipt of waste until
certification of final closure. (See Section II.A of this
document for additional details.) To be consistent with this
proposed definition, the Agency also proposed in §§264.144(c)
and 265.144(c) to require that the post-closure cost estimate
be revised during the active .life of the facility instead of
during the operating life whenever a change in the plan
increased the costs of post-closure care. (Parallel changes
were also proposed to §§264.142 (c) and 265.142(c).. ) The
proposed rule also required revisions to be made within 30 days
of the change-in the plans, as previously discussed in Section
IV.C of this document.
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IV.D.3 Rationale for Proposed Rule
Although the previous regulations did not define operating
life, the Agency intended that post-closure financial assurance
be adjusted as necessary until the facility was closed and
post-closure care had begun. The proposed rule clarified this
position.
Events that occur during the partial or final closure
periods could affect the costs of post-closure care and must be
accounted for by increasing the post-closure cost estimate. To
ensure adequate assurance for post-closure care, the Agency
proposed to require that the post-closure cost estimate be
revised within 30 days after the Regional Administrator has
approved a change in the previously' approved post-closure
plan. For interim status facilities without approved plans,. .
the cost estimate must be revised within 30 days of the change
in the plan.
IV.D.4 Comments and Response
No comments were received on this issue.
IV.D.5 Final Rule
The final rule adds the words "during the active life of
the facility" to §§264.142(c) and 264.144(c) and 265.142(c) and
265.144(c) to clarify the period during which the cost estimate
must be modified.
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IV.E Trust Fund Pay-In Period
§§264.143(a)(3) and 265.143(a)(3)
IV.E.I Synopsis of Existing Regulation
The existing Part 264 regulations require payments into
the trust fund to be made over the term of the permit or over
the remaining operating life of the facility, whichever is
shorter. The maximum term of a permit is 10 years. For
interim status facilities, the pay-in period is 20 years or the
remaining operating life of the facility, whichever is shorter.
IV.E.2 Summary of Proposed Rule
In the proposed rule, the Agency solicited comments on the
appropriateness of adjusting the pay-in period to reflect the
shorter operating live*s of some units at multiple process
facilities. Although no rule was proposed, the Agency
solicited comments on approaches to handling the pay-in period
for multiple process facilities.
IV.E.3 Rationale for Request for Comments
Although*the trust fund may cover a number of units with
different operating lives, the current requirement ties the
pay-in period to the life of the facility rather than to the
life of particular units. Therefore, the existing rule does
not reflect the shorter operating lives of some units. The
Agency wants to ensure that adequate funds will always be
available to cover the costs of closing the entire facility in
accordance with the approved closure plan if the owner or
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operator fails to do so. However, the Agency also is concerned
that if the trust fund build-up period is based on the shortest
operating life of a unit, owners or operators intending to
partially close in the near future would face very high
payments into the trust fund. Moreover, an accelerated
build-up requirement could discourage partial closures.
IV.E.4 Comments and Responses
IV.E.4.1 Trust Fund May Not Assure Adequate Funds
Companies using a trust fund to finance closure
often may be inadequately covered by the amount
in the trust fund if partial closure is conducted
well in advance of the expected date of final
closure. The owner or operator should be
required,within 3 years, to place in the trust
fund an amount equal to that required to close
the hazardous waste management unit with the most
expensive partial closure plan.
The regulations require financial responsibility to be
equal to the maximum costs of closure at any time over the life
of the facility. Requiring owners or operators to place into
the trust fund within three years an amount equal to the cost
of closing the unit with the most expensive partial closure
plan could represent a significant financial burden to the
regulated community. In the preamble to the January 12, 1981,
regulations (46 FR 2823),'the Agency discussed its rationale
for allowing the trust fund as an option and for not requiring
immediate full funding of the trust fund. The Agency still
considers this argument to be valid. The financial burden
associated with accelerating the trust fund payments could
drive companies out of hazardous waste management and
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discourage new companies from entering the field. In addition,
if faced with significantly higher costs, some marginal firms
may be forced to close their facilities immediately- As a
result, closure and post-closure obligations could be left to
the'public that might otherwise have been covered by a trust
fund with a longer build-up period.
IV.E.4.2 Alternative Pay-In Periods
Rather than establishing cost estimates for
each unit at a multiple process facility, the
pay-in period (for interim status facilities)
should be based on 20 years or the shortest of
the operating lives of the units, whichever is
shorter. For permitted facilities, the p'ay<-in
period should be the term of the permit or the"
shortest bf the operating lives of the units,
whichever is shorter.
The pay-in period should be equal to either the
term of' the facility's permit or the remaining
operating, life of the facility, whichever is
shorter. For multiple process facilities, the
pay-in period should be consistent with permit
life; where different units at the same facility
have separate permits,'the pay-in schedule should
be adjusted to reflect this fact.
The Agency determined that a pay-in period based on the
shortest operating life of "any of the units could reduce
incentives to o'wners or operators to develop an operating
.
strategy that would open and close units quickly. If the trust
fund must be fully funded within the shortest operating life of
any of the units, then owners or operators couiu be discouraged
from performing partial closures, from accurately reporting the
intended life spans of units, or from notifying the Agency of
any partial closures that are performed. Since the Agency
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wishes to encourage partial closures, it is not adopting a
pay-in period based on the shortest operating life of any of
the units. Although basing the pay-in period on the shortest
operating life would mean increased funds available for final
partial and final closures, the Agency is concerned about the
resulting economic impacts. The Agency will further examine
this question before proposing a change to the current trust
fund payment schedule.
The Agency agrees with the second commenter that if a
facility has multiple units with separate permits the trust
fund pay-in schedule should be adjusted to reflect the
particular permit life. The existing regulations would allow
this approach.
IV.E.'4.3 Permit Life Should not Extend Beyond Closure
Permits should not be issued for a term longer
than the operating or expected life of a
facility. The trust fund pay-in period should
not extend beyond the expected closure date.
The maximum term of a permit is 10 years. If the Agency
is aware that the remaining operating life of a facility is
less than 10 years, the permit will be issued for the duration
of the operating life rather than for 10 years. The regulation
allows an owner or operator to close prior to the expiration of
the permit, if he decides to do so after a permit has already
been issued. Under the provisions of §264.112, an owner or
operator using a trust fund must amend his closure plan and
request a permit modification if he intends to change the
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estimated date of closure and close prior to the expiration of
the permit.
IV.E.4.4 Payments Based on Financial Strength
A permit condition should also be allowed
requiring accelerated payments into the trust
fund based on known financial weaknesses of the
facility.
Because of the difficulties in setting criteria for what
constitutes "known financial weaknesses," the Agency is not
adopting this suggestion.
IV.E.5 Final Rule
After considering the comments, EPA has decided to retain
the existing rule which provides that the pay-in'period for
permitted facilities is the term of the permit, or the
remaining operating 'life of the'facility, whichever is
shorter. For interm status facilities, the pay-in period
remains 20 years or the remaining operating life of the
facility, whichever is shorter.
IV.F Reimbursements for Closure and Post-Closure
Expenditures from Trust Funds and Insurance
§§264.143(a)(10) and (e)(5)
264.145(a)(ll) and (e)(5)
265.143(a)(10) and (d)(5)
265.145(a)(ll) and (d)(5)
IV.F.I Synopsis of Previous Regulation
The previous closure arid post-closure care trust fund and
insurance provisions allowed an owner or operator, or any other
person authorized to conduct closure or post-closure care, to
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request reimbursement from the trust fund or the insurance
policy for expenditures for final closure and post-closure care
by submitting itemized bills to the Regional Administrator.
The Regional Administrator was required to instruct the trustee
or insurer to make reimbursements if the activities had been in
accordance with the approved plans, or otherwise justified.
The Regional Administrator was allowed to withhold
reimbursements if he determined that the total costs of closure
would exceed the value of the trust or the insurance policy.
No such withholding were allowed for post-closure care
reimbursements.
IV.F.2 Summary of Proposed Rule
The proposed rule modified procedures for reimbursing
expenditures from the -trust fund or insurance, and specified
provisions for handling reimbursements for partial closure
activities. The Agency proposed to require that the Regional
Administrator provide a detailed written statement of reasons
for instructing the trustee or insurer not to make the
requested reimbursements.
The proposed rule also allowed owners or operators to
submit itemized bills to the Regional Administrator for partial
closure activities, using the same procedures used in
submitting bills for final closure activities. Before allowing
reimbursement for partial closure, however, the Regional
Administrator was required to determine if the activities were
in accordance with the closure plan or otherwise justified, and
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if sufficient funds were still remaining in the trust fund or
the insurance policy to cover the costs of closing the "maximum
extent of operation of the facility." Similarly, the owner or
operator could be reimbursed for post-closure care activities,
assuming the activities were in accordance with the approved
post-closure plan. If the expenditures were approved, the
Regional Administrator instructed the trustee or insurer,
within the allotted 60-day period, to reimburse those amounts
that the Regional Administrator specified in writing.
IV.F.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that any
decision by the Regional Administrator to withhold
reimbursements presumably is an administrative determination
that the expenditures are either unjustified or not in
accordance with plans, or that closure or post-closure care is
incomplete. They contended that such an administrative
determination must be supported by a written explanation that
could then serve as a record for review of the determination.
The Agency agreed with the litigants, and developed the
proposed rule to ensure that the. owner or operator would obtain
a written explanation of why the Regional Administrator
instructed the trustee or insurer not to reimburse the owner or
operator for partial or final closure or post-closure care
expenditures.
The proposed amendment clarifying partial closure
reimbursement procedures was intended to ensure the adequate
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availability of funds for performing final closure. Under the
provisions of §§264.142(a) and 265.142(a) the cost estimate
must equal the cost of final closure at the point in the
facility's active life when the extent and manner of its
operation would make closure the most expensive, as indicated
by its closure plan. Therefore, the Regional Administrator
should not approve reimbursement for partial closure if the
remaining financial assurance would be insufficient to satisfy
this condition.
IV.F.4 Comments and Responses
IV.F.4.1 Reimbursement Based on Maximum Cost of Closure
The "maximum extent of operation of the
facility" remaining after partial closure is
irrelevant to the issue of reimbursement. The
Regional Administrator should consider the
estimated cost of remaining closure activities in
evaluating when the remaining funds in the trust
fund are adequate.
The Agency agrees with this commenter that the language of
the proposed rule was ambiguous and is clarifying it in the
final rule. The purpose of the cost estimate and financial
responsibility requirements is to ensure that adequate funds
are available to cover the maximum costs of closure over the
remaining life of the site. It is the Agency's intention to
allow reimbursement for partial closures as long as they are
consistent with this objective. The intent of this rule is to
ensure that sufficient funds remain available after performing
partial closures to finance final closure activities in
accordance with the closure plan.
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IV.F.4.2 Withholding Trust Fund Payments
Withholding payments from a trust fund should
only occur for significant violations of the
closure plan and permit requirements.
The Agency agrees that in most cases withholding payments
from-a trust fund should occur only for significant violations
of the closure plan and permit requirements. The Agency does
not intend to place an undue burden on owners or operators for
minor or paperwork violations of the closure plan and permit
requirements. The current regulations allow the Regional
Administrator to authorize reimbursements if the expenditures
"are in accordance with the approved plan or otherwise
justified." Therefore, the regulations allow the Regional.
Administrator to authorize reimbursements, despite minor
violations, if the expenditures are otherwise justified..
IV.F.4.3 Automatic Reimbursements
EPA should establish a policy that if no
determination is reached within 60 days of the
request of reimbursement, reimbursement should be
automatic.
The Agency does not agree with the suggestion that a
policy should be established to make payment authorization
automatic if no determination is reached within 60 days of the
request of payment. Because of the complexity of certain
closure activities and the importance of ensuring that the
activities adequately protect human health and the environment,
the Agency considers it inappropriate to allow automatic
authorization if the 60-day limit is not met. By not' allowing
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payments to be made until a determination is reached, the
Agency is assuring that funds will still be available to
finance any additional necessary partial or final closure
activity or post-closure care activities.
IV.F.4.4 Trust Fund as Collateral
The Agency should allow an owner or operator to
borrow money to cover closure costs using the
trust fund as collateral, or should allow
payments from the fund for partial as well as
final closure.
The Agency does not agree that an owner or operator should
be allowed to borrow money to cover closure costs using the
trust fund as collateral. The purpose of financial
responsibility is to ensure the availability of adequate funds
for performing closure activities in accordance with the
approved plan. The terms of the trust specify that it is
created to provide financial assurance, and that no third party
is to have access unless directed by the Trustee as provided in
the agreement. The Agency, therefore, does not believe that
the trust as currently established could be used by the owner
or operator as collateral. Reimbursements may be made from the
trust fund, as discussed above, for. partial closures if the
required conditions are met.
IV.F.4.5 Limitations of Amount of Trust Fund Withheld
The amount that the Regional Administrator may
withhold should not exceed 20 percent of the
total fund unless the Regional Administrator
demonstrates that a higher amount is required.
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The Agency addressed the issue of establishing a limit on
the amount that could be withheld in the April 7, 1982,
rulemaking (47 FR 15040). The Agency concluded at that time
that, rather than setting an exact limit on the amount that may
be withheld, reliance on the prudence and discretion of the
Regional Administrator would allow more precise responses to
particular situations. The new requirement for a written
statement of reasons by the Regional Administrator strengthens
this approach, and the Agency continues to support it.
IV.F.5 Final Rule
After analyzing the comments received on the issue of
reimbursement, the Agency has promulgated the final rule
substantially as proposed. The final rule clarifies that the
owner or operator may be reimbursed for partial closure only .
if the remaining funds in the trust fund or insurance policy
are sufficient "to cover the maximum costs of closing the
facility over its remaining operating life."
IV.G Final Administrative Order Repaired
§§264.143(b)(4)(ii)
264.145(b)(4)(ii)
265.143(b)(4)(ii)
265.145(b)(4)(ii)
IV.G.I Synopsis of Previous Regulation
The previous regulations provided that an owner or
operator of a permitted or interim status facility may satisfy
the financial assurance requirements for closure and/or
post-closure care by obtaining financial guarantee surety
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bonds. The rule required that the surety bond guarantee that
the owner or operator would fund a standby trust fund in an
amount equal to the penal sum of the bond within 15 days after
an order to begin closure was issued by the Regional
Administrator or by a U.S. district court or other court of
competent jurisdiction. The surety became liable on the bond
when the owner or operator failed to perform as guaranteed by
the bond.
IV.G.2 Summary of Proposed Rule
The proposed amendment provided that the surety bond for
assurance of closure or post-closure care must guarantee that
the standby trust fund will be funded within 15 days, after an
administrative order to begin closure issued by the Regional
Administrator becomes final, or within 15 -days after an order
to begin closure is issued by a U.S. district court or other
court of competent jurisdiction. The Agency retained the
requirement that the surety must fund the standby trust fund if
the owner or operator fails to provide alternative financial
assurance upon receiving notice, of cancellation of the bond.
The proposal also adds two words for clarification: closure is
final closure; and the Regional Administrator's order is
an administrative order.
IV.G.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that
expenditures of the funds cannot be compelled by law until the
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order to begin closure is a final order, and that there is no
need to transfer money to the standby trust fund until that
time. A final order is, in general, final Agency action. In
response to the ACCI petitioners, the Agency proposed to
provide additional procedural protection to owners or operators
by requiring that a final administrative order is necessary
before action by the surety can be required. A final
administrative order refers to a final EPA or State
determination and is not intended to include possible judicial
review.
IV.G.4 Comments and Responses
In some states, several months may expire
during the administrative appeal process before a
case goes to court. During this time, an open
site will be accepting precipitation and
discharging hazardous constituents to the
environment. In order to obtain rapid action,
the owner or operator should be required to post
funds for possible forfeiture as a pre-condition
to handling hazardous waste. Such "bonding" is a
common concept used in sanitary landfill
permitting, daily construction, and public office
holding.
As noted above, a final order is intended to be final EPA
or State administrative action, and does not include possible
judicial review. Therefore, the standby trust fund will be
funded within 15 days after an administrative order to begin
closure issued by the Regional Administrator (or equivalent
State official) becomes final. The Agency does not believe
another bond is necessary to ensure that funds are available in
case there is an appeal process. Even payment of the bonds
suggested by the commenter might be delayed by legal action.
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IV.G.5 Final Rule
The Agency is adopting the rule as proposed.
IV H Final Administrative Determination Required
§§264.143(c)(5) and (d)(8),
264.145(c)(5) and (d)(9),
265.143(0X8),
265.145(c)(9)
IV.H.I Synopsis of Previous Regulation
The previous Part 264 regulations provided that an owner
or operator may demonstrate financial assurance for closure
and/or post-closure care by obtaining a surety bond
guaranteeing performance. (For reasons outlined in the
preamble to amendments to the financial assurance requirements
(46 FR 2825, January 12, 1981), a surety bond guaranteeing
performance is not allowed under interim status.) Under Parts
264 and 265, an owner or operator may satisfy the financial
assurance requirements by a closure and/or post-closure care
letter of credit. Under the terms of these mechanisms, the
surety or bank becomes liable on the bond or letter or credit
obligation when the owner or operator fails to perform closure
or post-closure care as guaranteed by the bond or letter of
credit.
The previous regulations for permitted facilities provided
that, after a determination made pursuant to Section 3008 of
RCRA that the owner or operator had failed to perform final
closure or post-closure care in accordance with the closure or
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post-closure plan and other permit or interim status
requirements, under the terms of the bond the surety would
perform final closure or post-closure care as guaranteed by the
bond, or would deposit the amount of the penal sum into the
standby trust fund. Similarly, following a like determination
pursuant to Section 3008 of RCRA, the Regional Administrator
could draw on the letter of credit.
IV.H.2 Summary of Proposed Rule
EPA proposed to add the provision that a "final"
determination under Section 3008 of RCRA.be required, before the
surety must act under the Part 264 regulations or the Regional
Administrator may draw on a letter of credit under both Parts
264 and 265 regulations.
IV.H.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that before the
surety must perform closure or post-closure care or deposit the
sum of the bond into a trust fund, or the Regional
Administrator may draw on a letter of credit, a final
determination must have been made. The Agency agrees that a
final determination is required.
IV.H.4 Comments and Responses
No comments were received on this proposed rule.
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IV.H.5 Final Rule
The Agency has adopted the rule as proposed, with three
changes. First, the final rule states that the surety will
become liable and the letter of credit may be drawn upon after
a final "administrative" determination. This change is
intended to clarify the Agency's intent to make sureties and
banks liable after an administrative rather than a judicial
determination. Second, the final rule clarifies that the
surety or bank issuing the letter of credit is liable if the
owner or operator fails to perform closure or post-closure care
in accordance with the "approved" plans. Third, §265.145
deletes language inadvertently included in §265.145(b)(5) which
refers to provisions applicable to surety bonds guaranteeing
performance. Performance bonds are not allowed for interim-
status facilities.
IV. I Cost Estimates for Owners or Operators Using the
Financial Test or Corporate Guarantee Must Include UIC
Cost Estimates for Class I Wells
§§264.143(f)(l), 264.145(f)(1),
265.143(e)(l), 265.145(e)(1)
IV. I.I Synopsis of.Previous Regulation
The previous regulations specified the criteria that had
to be satisfied for an owner to use the financial test to
demonstrate financial responsibility- For facilities being
covered by the financial test for closure and/or post-closure
care and liability coverage, the owner or operator was required
to have net working capital and tangible net worth each at
least six times the sum of the closure and/or post-closure cost
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estimates and/or annual aggregate liability coverage
requirements of the facilities being covered by the test. The
financial test criteria did not take into account the costs to
an owner or operator of closing hazardous waste underground
injection control (UIC) facilities subject to the requirements
of 40 CFR Part 144 et seq. (i.e., the costs of plugging and
abandonment) if applicable. Plugging and abandonment are the
technical measures taken to close and permanently discontinue
operations at an underground injection well under the
requirements of 40 CFR Parts 144 and 146.
IV.I.2 Summary of Proposed Rule
EPA established financial responsibility requirements in
40 CFR Part 144 for the owners or operators of Class I UIC
facilities. These requirements parallel the requirements
established in 40 CFR Parts 264 and 265, including the same set
of criteria for passing the financial test. The proposed rule
required owners or operators of a hazardous waste treatment,
storage, or disposal facility and of a UIC facility to include
estimates of the plugging and abandonment costs of their Class
I UIC facility when calculating the sum of the cost estimates
for the RCRA financial test. The proposal amended §§264.141(f)
and 265.141(f) by defining "current plugging and abandonment
cost estimate" as the "most recent of the estimates prepared in
accordance with §144.62."
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IV.I'.3 Rationale for Proposed Rule
Under the previous rule the financial test criteria were
applied to the UIC and RCRA financial tests separately. Thus,
a firm able to pass the tests individually might not have had
the financial strength to pass the test if the cost estimates
were combined. The Agency has estimated plugging and
abandonment costs to range from $10,000 to $100,000 per well,
depending on hydrogeologic factors. Large on-site facilities
may have as many as five to ten wells, with associated plugging
and abandonment costs potentially totalling as much as
$1,000,000. These costs could considerably increase the size
of the cost estimate otherwise used for the RCRA financial
test. Because the objective of both regulatory programs is to
ensure that fundLs are available to prevent threats to human
health and the environment, it is especially important to
ensure that a firm using the financial test, and not otherwise
demonstrating that funds will be available if needed, has the
financial strength to take the required actions if UIC plugging
and abandonment and RCRA closure and/or post-closure care
activities are required simultaneously.
IV. 1.4 Comments and Responses
IV.1.4.1 Difficulties in Reviewing UIC Cost Estimates
UIC closure cost estimates should be included
in the RCRA financial test demonstration, but
reviewing the adequacy of UIC closure cost
estimates may be difficult.
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The Agency recognizes that reviewing the adequacy of UIC
closure cost estimates will be difficult, and is therefore
preparing a guidance manual to address this problem.
IV.I..4.2 Cross-Referencing System for UIC and RCRA Facilities
A reference system should be designed to allow
for the costs to be addressed under one
regulation and referenced under another.
The Agency believes that the commenter who suggested the
incorporation of a referencing system may have misinterpreted
the proposed rule. The proposed rule is not establishing
additional requirements for UICs. It is only requiring that
the cost estimates for Class I UIC wells be included when using
the financial test to demonstrate financial assurance under
Subpart Hi Therefore, the Agency does not believe a
referencing system is necessary.
IV-I.4.3 Avoidance of Duplicative Requirements
Insurance requirements to cover the UIC closure
costs should not be required to be duplicated for
both Subparts.
The proposed regulation does not establish duplicate
insurance requirements to cover Class I UIC closure costs. As
stated above, the rule only requires that the plugging and
abandonment costs for the wells be included as an element of
the financial test.
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IV. 1.5 Final Rule
After consideration of the comments, the Agency has
decided to promulgate the final rule as proposed.
IV.J Cost Estimates Must Account for All Facilities Covered by
Financial Test or Corporate Guarantee
§§264.143(f)(2), 264.145(f)(2),
265.143(e)(2), 265.145(e)(2)
I V.J.I Synopsis of Previous Regulation
The previous regulation specified that the phrase "current
closure and post-closure cost estimates" as used in
subparagraph (1) of §§264.143(f),. 264.145(f), 265.143(e), and
265.145(e) refers to the cost estimates required to be shown in
paragraphs 1 through 4 of the letter from the owner's or
operator's chief financial officer (§264.151(f)). These cost
estimates are used in determining whether an owner or operator
can pass the financial test for demonstrating financial
assurance.
IV.J.2 Summary of Proposed Rule
The proposed rule made a minor change, adding that the
*
phrase "current plugging and abandonment cost estimates" as
used in §§264.143(f)(1), 264.145(f)(1). 265.143(e)(1), and
265.145(e)(l) refers to the UIC cost estimates required to be
shown in paragraphs 1 through 4 of the letter from the owner's
or operator's chief financial officer (§144.70(f)).
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IV.J.3 Rationale for Proposed Rule
The addition in the proposed rule was made to be
consistent with the proposed inclusion, described in the
preceding Section IV.I of this document, of UIC plugging and
abandonment costs in calculating the sum of the closure and
post-closure cost estimates for the financial test under Parts
264 and 265.
IV.J.4 Comments and Responses
The Agency received no comments relevant to the proposed
rule.
IV.J.5 Final Rule
The Agency adopted the rule as proposed.
IV.K Release of the Owner or Operator from the Requirements of
Financial Assurance for Closure and Post-Closure Care
§§264.143(i), 264.145(.i), 265.143(h), 265.145(h)
IV.K.I Synopsis of Previous Regulation
Sections 264.143(i) and 265.143(h) previously required the
owner or operator, when closure was completed, to submit
certifications to the Regional Administrator from himself and
from an independent registered professional engineer that
closure had been accomplished in accordance with the closure
plan. Within 60 days after receiving the certifications, the
Regional Administrator was required to notify the owner or
operator that he was no longer required to maintain financial
assurance for closure of the particular facility, unless the
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Regional Administrator had reason to believe that closure was
not in accordance with the approved closure plan. Similarly,
when an owner or operator completed all post-closure care
requirements in accordance with the post-closure plan to the
satisfaction of the Regional Administrator, the Regional
Administrator would notify the owner or operator that he was no
longer required to maintain financial assurance for
post-closure care.
IV.K.2 Summary of Proposed Rule
The Agency proposed to add a provision that the Regional
Administrator must provide a detailed written statement to the
owner or operator of reasons that closure or post-closure care
had not been in accordance with the approved plans.
IV.K.3 Rationale for Proposed Rule
A detailed written statement from the Regional
Administrator would provide the owner or operator with
necessary information to correct deficiencies in the closure or
post-closure care process.
IV.K.4 Comments and Responses
It is unfair for an owner or operator to have
to ca'rry the full weight of financial assurance
for closure, after it is completed, while the
Agency deliberates about whether it is adequate.
It is essential that financial assurance be maintained
until the Regional Administrator determines that closure or
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post-closure care has been adequate. If, after receiving the
certification of closure, the Agency concludes that final
closure was not performed in accordance with the approved
closure plan, the proposed rule ensures that funds will be
available to correct deficiencies in the closure or
post-closure process. The Agency needs time to conduct
inspections and review the documentation relating to closure
and post-closure activities. In particular, it is essential to
ensure that closure is done correctly to prevent damage to
human health and the environment. Owners or operators using
trust funds and insurance will already have, received
reimbursements for closure, activities, assuming itemized bills
were submitted to the Regional Administrator and the activities
were in accordance with the approved'plan. In the case of
post-closure care reimbursements, the owner or operator will
have already been reimbursed for the majority of costs or have
reduced the amount of financial assurance.over the term of the
post-closure care period.
IV.K.5 Final Rule
The Agency adopted the final rule as proposed.
IV.L Period of Liability Coverage
§§264.147(e), 265.147(e)
IV.L.I Synopsis of Previous Regulation
The previous regulations required owners or operators to
provide continuous liability coverage for a facility until
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certifications of closure of the facility, as specified in
§§264.115 or 265.115, were received by the Regional
Administrator.
IV.L.2 Summary of Proposed Rule
To clarify that liability coverage is required until
certifications of final closure have been received by the
Regional Administrator, a conforming change was proposed to
§264.147(e). The preamble to the proposed rule stated that the
same conforming change was being made to §265.147(e), but the
text of that change was inadvertently omitted from the proposed
rule.
IV.L.3 Rationale for Proposed Rule
The existing liability requirements .specify that an owner
or operator of a TSDF or a group of TSDFs must maintain sudden
coverage and, if he owns at least one facility with a disposal
facility, nonsudden coverage as well. The amount of liability
coverage required does not vary by the number of hazardous
waste management units open at the facility, size, of facility,
wastes handled, potential risks, or other factors, since it is
required on a per firm basis. Therefore, the Agency does not
consider it appropriate to alter the amount of financial
assurance required for sudden or nonsudden accidental liability
coverage as a result of partial closures. The proposed
amendment clarifies this intent by rewording the language to
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state that the owner or operator will be released from the
liability requirement after "final closure."
IV.L.4 Comments and Responses
IV.L.4.1 Liability Coverage Not Retired During the
Post-Closure Care Period
The current wording implies that environmental
impairment liability (EIL) insurance is not
required for the post-closure care period; the
Agency should clarify this implication.
The Agency does not believe that the wording of the
proposed rule is ambiguous about the applicability of EIL
coverage during the post-closure care period .and does not agree
that there is a need to further clarify.this in the final
rule. The regulations have never required liability insurance
during the post-closure care period.
IV.L.4.2 Availability of EIL Insurance
The Agency should address the real potential o-f
the non-availability of EIL insurance coverage.
The Agency addressed questions of insurance availability
in a separate announcement in the Federal Register (see 50 FR
33902 (August 21, 1985)).
IV.L.4.3 Applicability of Liability Coverage Retirements
Sudden and nonsudden liability coverage should
be required until final closure has been
certified.
The provisions for the release of owners or
operators from Subparts F, G, and H requirements
should be consistent. The language in
§264.145(i) requiring that the Regional
Administrator be satisfied that the post-closure
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care activities have been conducted in accordance
with the approved plan as a condition of release
from financial assurance should be included in
§264.147(e) as well as in §264.115 since there is
an impact on Subpart F requirements as well.
The language in §§264.147(e) and 265.147(e) required
insurance to continue until the proper certifications, as
specified by §§264.115 and 265.115, were received by the
Regional Administrator. Sections 264.143(i), 264.145(i),
265.143(h) and 265.145(h) required the owner or operator to
maintain financial responsibility for closure until the
Regional Administrator approved the certifications and
notified the owner or operator he was released from financial
assurance obligations.
The Agency agrees with the commenter that the provisions
releasing the owners or operators from financial assurance
requirements for closure and post-closure care and liability
coverage should be consistent. The Agency also believes it is
important to ensure that insurance policies remain effective
until the Regional Administrator has determined that closure
has been performed in accordance with the approved closure
plan. The Agency is therefore revising §§264.147(e) and
265.147(e) to require that coverage must be maintained until
the Regional Administrator notifies the owner or operator in
writing that he is no longer required to maintain financial
assurance for liability coverage. In addition, the final rule
provides that the Regional Administrator will notify the owner
or operator within 60 days after receiving the closure
certifications. This language is now consistent with the
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provisions for releasing owners or operators from closure/post-
closure financial assurance in §§264.143(i), 264.145(1),
265.143(h) and 265.145(h).
IV.L.5 Final Rule
After analyzing the comments, the Agency is revising the
final rule in §§264.147(e) and 265.147(e) to be consistent with
the language in §§264.143(i), 264.145(i), 265.143(h), and
265.145(h). The final rule states that within 60 days after
receiving certifications that final closure has been completed
in accordance with the approved closure plan, the Regional.
Administrator will notify the owner or operator in writing that
he is no longer required to maintain liability coverage for the
facility, unless the Regional Administrator has reason to
believe closure has not been performed in accordance with the
approved closure plan.
I
IV.M Wording of Instruments
§264.151
IV.M.I Synopsis of Previous Regulation
Section 264.151 specified the wording of the financial
assurance instruments allowed under §§264.143, 264.145,
265.143, and 265.145. In particular, §264.151(b) specified the
wording for surety bonds guaranteeing payment into a standby
trust fund and §§264.151(f) and (g) specified the wording for a
letter from the chief financial officer.
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IV.M.2 Summary of Proposed Rule
The Agency proposed to amend §264.151(b) to specify that
the surety guaranteeing payment into a trust fund is
responsible for funding the standby trust fund only when an
order to begin closure is a final order. The Agency also
proposed to amend §§264.151(f) by adding additional paragraph
(f)(5) requiring owners or operators using the financial test
for closure and/or post-closure care to list the cost estimates
associated with their Class I UIC facilities as required by the
Part 144 financial responsibility requirements. The proposal
inadvertently failed to propose the same language for
§264.151(g) which is used by owners or operators using the
financial test, for both closure/post-closure care and
liability coverage.
IV.M.3 Rationale for Proposed Rule
The Agency proposed the above two changes in order to
ensure consistency with changes being made to other sections of
the regulations (e.g., changes to §§264.143(f)(2),
264.145(f)(2), 265.143(e)(2), and 265,145(e)(2)), which were
discussed in Section IV.J and IV-I of this document.
IV.M.4 Comments and Responses
IV.M.4.1 Additions to Wording of Instruments
Section 264.151(b), which specifies the wording
of the surety bond guaranteeing payment into a
trust fund, must include reference to 265.143(b),
which specifies the requirements for owners or
operators of interim status facilities to satisfy
financial assurance through establishing a trust
fund.
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Reference to the UIC facility dollars in the
financial test should also be referenced in
subsection (g) of §264.151 because several
facility operators use the §264.151(g) financial
test package wording.
The Agency agrees with the commenters that these sections
should be amended and the final rule revises the referenced
sections.
IV.M.4.2 Proposed Addition to Corporate Guarantee
Because many TSDFs that use the financial test
also use the corporate guarantee, the language in
§264.151(f) should be modified to read: "This
firm is the owner or operator or guarantor of
the following UIC facilities ..." (proposed
language is underscored).
The Agency anticipates that owners or operators of a TSDF
are more likely to be the recipients of a guarantee from the
parent corporation, rather than guarantors themselves.
Therefore, the commenter's suggested language to include "or
guarantor," is not being added to avoid confusion with cases
where owners or operators of TSDFs use the corporate
guarantee, but are not guarantors.
IV.M.5 Final Rule
In response to the comments received, the Agency is
revising the final rule to include a reference to §265.143(b).
The final rule is also amending the wording of the liability
requirements specified in §264.151(g) by adding a new paragraph
(g)(5). That new paragraph requires owners or operators using
the financial test for both closure and post-closure care and
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liability insurance to list the cost estimates associated with
their Class I UIC facilities. This addition was made since
many TSDF owners using the §264.151(g) financial test wording
for closure and post-closure care and liability coverage also
own UIC facilities.
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V. INTERIM STATUS STANDARDS (PART 265)
This part of the document discusses changes that were made
to Part 265 (for interim status). If parallel changes were
made to both permitted and interim status standards, those
changes were discussed in Parts III and IV of this document.
V.A Applicability of Reoruirements
§265.110
V.A.I Synopsis of Previous Regulation
Section 265.110(b) provided that §§265.117 through 265.120
of Subpart G, which concerned post-closure care, applied "to
the owners and operators of all hazardous waste disposal
facilities."
V.A.2 Summary of Proposed Rule
In the proposed rule, the Agency clarified the
applicability of §§265.117-265.120, by specifying that they
applied to:
"(1) All hazardous waste disposal facilities; and
(2) Piles and surface impoundments for which the
owner or operator intends to remove the wastes
at closure to the extent that these sections
are made applicable to such facilities in
§§265.228 or 265.258."
V.A.3 Rationale for Proposed Rule
In order to clarify the applicability of §§265.117 through
265.120, the Agency proposed in §265.110(b) that the
post-closure care requirements apply to the owners or operators
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of all hazardous waste disposal facilities and to piles and
surface impoundments for which the owner or operator intends to
remove the wastes at closure but is required to close the
facility as a landfill. Surface impoundments and waste piles
from which all wastes and waste residues, contaminated
containment system components, contaminated soils and subsoils,
and other specified contaminated components or residues are
removed at closure are not required to comply with post-closure
care requirements. However, surface impoundments and waste
piles that are unable to remove all hazardous wastes are
required under §§265.228 and 265.258 to be closed as landflls
and must comply with the post-closure care .requirements. The
proposed rule clarified the applicability of the post-closure
standards in §§265.117-265.120 to such surface impoundments and
waste piles.
V. A. 4 Comments and Responses
The Agency received no comments on this proposed rule.
V.A.5 Final Rule
The final rule is promulgated as proposed, with the
addition of the word "waste" to the beginning of §265.110(b)(2)
so that the subsection refers to "waste piles."
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V.B Waste Pile Closure Requirements Included by Reference in
the Closure Performance Standard
§§265.111 and 265.112
V.B.I Synopsis of Previous Regulation
Section 265.111 of the previous rule contained a general
closure performance standard. In addition, §265.112(a)(1)
required the closure plan to include a description of how and
when the facility would be partially closed and finally
closed. Finally §265.112(d) required the Regional
Administrator to ensure that an approved closure plan addressed
the applicable closure requirements in the process-specific
regulations (§§265.197, 265.228, 265.280, 265.310, 265.351,
265.381 and 265.404).
V.B.2 Summary of Proposed Rule
EPA proposed to amend §265.111 by adding subsection (c),
which incorporated all the process-specific technical standards
into the closure performance standard of §265.111. The
references to the process-specific standards in §265.112(a)(1)
were replaced with a single reference to §265.111 in
§265.112(b)(1). The Agency also proposed to amend the
references to the process-specific regulations in §265.112(d)
to include a citation of §265.258, which establishes closure
requirements for waste piles.
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V.B.3 Rationale for Proposed Rule
The Agency proposed to incorporate into the general
performance standard references to the specific technical
closure requirements to ensure that owners or operators comply
with both the general and all applicable process-specific
standards. This change was discussed in more detail in
Section III.A of this background document.
Closure requirements specific to waste pile facilities in
§265.258 (47 FR 32368, July 26/ 1982) were promulgated after
the January 12, 1981, promulgation of the Subpart G
regulations, and thus were not referenced in Part 265
Subpart G.
V.B.4 Comments and Responses
No commenter addressed whether the process-specific
requirements for waste piles should be added to the interim
status closure performance standard. On the general question
of adding process-specific standards to the closure performance
standard, the comments that the Agency received with respect to
the parallel amendment to §264.111 were also considered
relevant to §265.111, and were discussed previously in
Section III.A of this document.
V.B.5 Final Rule
The Agency adopted the proposed rule, with two changes:
(1) as discussed in connection with §§264.111 and 264.112, the
proposed wording for the closure performance standard was
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changed from "to prevent threats to human health and the
environment" to "to protect human health and the environment;"
and (2) an incorrect reference to §265.178 was deleted.
V.C Submission of Interim Status Closure and Post-Closure
Plans (notification of closure)
§§265.112(d), 265.118(e)
V.C.I Synopsis of Previous Regulation
Sections 265.112(c) and 265.118(c) previously required
owners or operators to submit their closure and post-closure
plans 180 days prior to final closure. Sections 265.112(d) and
265.118(d) required the Regional Administrator to approve,
modify, or disapprove the closure plan or post-closure plan
within 90 days of receipt.
V.C.2 Summary of Proposed Rule
The Agency proposed in new §265.112(d)(1) to clarify and
set shorter deadlines for advance notification of closure and
submission of closure plans. For interim status facilities
without approved closure plans, the deadlines for notification
of closure and submitting the entire closure plans were
proposed as follows:
(1) Remain at 180 days for final closure of
facilities with disposal units (surface
impoundments, waste piles, land treatment units,
landfill units) that have not already been
partially closed;
(2) Set at 180 days for partial closure of disposal
units;
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(3) Change from 180 days to 45 days for final
closure of facilities with no land disposal
units, (i.e. only tanks, containers, or
incinerator units).
For interim status facilities with previously approved
closure plans, notification deadlines were proposed as follows
(.closure plans do not need to be resubmitted unless being
modified):
(1) Change from 180 days to 60 days for final
closure of facilities with disposal units that
have not already been partially closed;
(2) Change from 180 days to 60 days for partial
closure of disposal units;
(3) Change from 180 days to 45 days for final
closure of facilities with no land disposal
units.
In new §265.118(e), the Agency proposed to retain the
180-day deadline for submitting a post-closure plan. However,
the post-closure plan must now be submitted ISO-days prior to
closure of the first disposal unit, rather than prior to final
closure of the entire facility.
V.C.3 Rationale for Proposed Rule
The Agency is committed to ensuring that partial closures
of hazardous waste management facilities are conducted in a
manner that will prevent future threats to human health and the
environment. The Agency is particularly concerned that if
closure plans are not reviewed and approved pripr to partial
closures of disposal units (surface impoundment, waste pile,
landfill and land treatment units), partial closure activities
may not be adequate. Moreover, in many situations it may be
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difficult or environmentally unsafe to correct previous
improper partial closures to ensure they are in accordance with
a subsequently approved plan.
V.C.4 Comments and Responses
V.C.4.1 Plan Submission Deadline for Non-Disposal Units
The 180-day minimum for submission of the plan
should be retained, since it is necessary for
closures of tanks, incinerators, and container
storage, where soil contamination and other
problems are definite possibilities.
The Agency believes that the Regional Administrator will
be able to act more quickly on closure plans for most tanks,
incinerators, and container storage units, which are less
complex and less likely to have extensive contamination
problems. The Agency also recognizes that for some storage
facilities it may be difficult to predict closure 180 dajys in
advance. For these reasons, the Agency is reducing the
notification period to 45 days for facilities with only these
non-disposal units.
V.C.4.2 Uniform vs. Variable Deadlines
There should be a uniform 90-day deadline, with
some flexibility of the actual termination date,
for submittal of closure plans for all facilities
regardless of the types of hazardous waste
management units they operate.
The time of closure of any hazardous waste
management unit is subject to numerous
variablesindustrial and business climates,
alternative treatment, technology, weather, and
other valid factors. A 90-day prior
notification, with some actual termination date
flexibility, is more realistic and should provide
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the agency with adequate time to prepare for and
inspect the unit.
It is unlikely that the Regional Administrator
will be able to act on all closure plans so as
not to delay closure of interim status
facilities. This could result in facilities
which can no longer receive waste, because
interim status has terminated, and cannot close
because the closure plan has not been approved by
EPA. We suggest that time for submittal of
closure plans be shortened to 90 days, and that
plans which have not been approved, modified, or
denied within that time period be deemed approved.
The Agency is requiring different deadlines for submittal
of closure plans for different types of units, because some
units have more complicated closure procedures than others.
Furthermore, new provisions added in §265.112(e) now allow an
owner or operator to remove hazardous waste and decontaminate
or dismantle equipment at any time before or after notification
of partial or final closure. These activities, however, must
be in accordance wi'th the approved closure plan, even if it is
approved at a later date. Forty-five days in many cases will
be ample time for the Regional Administrator to complete the
approval process for non-disposal facilities. Disposal
facility plans are generally more complex, however, so the
Regional Administrator's response time will be longer (180
days). The Agency therefore has concluded that varying the
deadlines is better than a uniform 90-day deadline with a
flexible termination date.
The Agency disagrees with one commenter's suggestion that
a plan be automatically approved within 90 days unless the
Regional Administrator has formally disapproved the plan. The
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major obstacle to timely actions on closure plans has been
their inadequacy. The Agency will not allow any closure plan
to become effective before verifying that it properly addresses
facility conditions.
V.C.4.3 Closure Plan for Units, Not Facility
The proposed rule requires submission of a
closure plan for the entire facility prior to the
first partial closure. This will be impractical
in many cases. The Agency should allow owners
and operators the option of submitting a closure
plan .limited to the units to be closed.
The Agency disagrees that owners ar operators should be
allowed to submit closure plans addressing only the units to be
closed. All owners or operators of interim status facilities
*
were required to prepare complete closure plans for their
entire facilities by May 19, 1981. Today's regulation simply'
requires owners or operators to submit the already prepared
closure plans prior to partial closure of the first disposal
unit, or prior to final closure of the facility if there are no
disposal units. This requirement should pose no additional
burden to owners or operators otherwise in compliance with
Subpart G requirements.
The Agency recognizes, however, that requiring the entire
closure plan to be approved prior to the first partial closure
sometimes may-pose a burden on the Agency to review the entire
plan within the specified deadlines. In some circumstances,
approving the entire plan may not be necessary for ensuring
protection of human health and the environment and, in fact,
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could delay partial closure. .For example, an interim status
facility with a surface impoundment and storage tanks may
intend to close only the tanks while continuing to operate the
impoundment. If ground-water monitoring data is not adequate
to evaluate the impoundment closure plan, the review process
for the entire closure plan will not be completed within the
allotted time. In such a circumstance, the Regional
Administrator should use his discretion and approve that
portion of the plan applicable to the partial closure. This
will minimize the burden on the Agency and owners or operators
while retaining the incentive to perform partial closures.
V.C.4.4 Plan Review Period is Too Short
The 90-day limit allowed for review, public
participation, and approval/denial/modification
of the plan is insufficient, and should be
expanded to 120 days.
The Agency considered whether an additional 30 days would
enhance significantly the time available for plan review,
public participation, and approval. The Agency concluded that
plan review can be conducted simultaneously with the public
notice and review process, which is estimated to require 30
days from submission of the plan to the public hearing. For
plans involving surface impoundments, waste piles, land
treatment, or-landfill units, the Regional Administrator will
have 60 additional days to consider the plan. The Agency does
not want to lengthen this process, since speedy closure of
units and facilities will reduce the likelihood of damages to
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human health or the environment. However, if the Regional
Administrator does not believe 90 days is adequate, the rule
allows the option of approving only the relevant part of the
plan within that time period.
V.C.5 Final Rule
After careful analysis of the comments received relevant
to the submission of interim status closure and post-closure
plans, the Agency has adopted the proposed rule with the
following minor wording change. The caption has been changed
to "notification of partial closure and final closure" from
"notification of closure."
V.D Written Statement by Regional Administrator of Reasons for
Refusing to Approve or Reasons for Modifying Closure or
Post-Closure Plan
§§265.112(d)(4) and 265.118(f)
V.D.I Synopsis of Previous Regulation
Sections 265.112(d)' and 265.118(d) required the Regional
Administrator to approve, modify, or disapprove the closure
plan and post-closure plan within 90 days of receipt from the
owner or operator. If the Regional Administrator did not
approve a plan, the owner or operator was required to modify
the plan or submit a new plan within 60 days. If the Regional
Administrator-modified a plan, this modified plan then became
the approved plan.
Section 265.118 also allowed the Regional Administrator
(in response to a request or at his own discretion) to hold a
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public hearing to clarify issues concerning, a closure or
post-closure plan.
V.D.2 Summary of Proposed Rule
The Agency proposed in §§265.112(d)(4) and 265.118(f) to
add the requirement that the Regional Administrator provide a
detailed written statement of reasons for refusing to approve
or for modifying a closure or post-closure plan within 90 days
of receiving the plan. In addition, the Agency proposed a
minor technical correction to amend . §265.118(f), which concerns
post-closure plans, to match the parallel requirement in
§265.112(d)(4) concerning closure plans. This changes adds
procedures to §265.118(f) for the Regional Administrator to
hold a public hearing concerning the post-closure plan.
V.D.3 Rationale for Proposed Rule
Petitioners in the ACCI litigation argued that the
previous procedure allowed the Regional Administrator undue
discretion to disapprove or modify closure or post-closure
plans without sufficient explanation of the reasons underlying
the disapproval or modification. A written statement would
assist the owner or operator in modifying the plan or in
developing a new plan.
V.D.4 Comments and Responses
The requirement could encourage owners or
operators to submit deficient closure plans since
they could rely on the government agency to
"straighten out" the closure plan.
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The Agency does not believe that requiring the Regional
Administrator to provide a written statement of reasons for not
approving the closure plan, or that allowing the Regional
Administrator to modify the plan, will necessarily lead owners
or operators deliberately to submit inadequate plans. Numerous
commenters on other sections of the proposed rules have
emphasized the interest of owners and operators in speedy
approval of the plan, which would be enhanced by their
submission of careful and detailed plans that the Regional
Administrator does not need to "straighten out."
V.D.5 Final Rule
The Agency adopted the proposed rule with the following
minor technical changes. In §265.112(d)(4) the list of
authorities was modified to read "§§265.111 through 265.115" in
order to include a reference to §265.112 and "§§265.90 et
seq." was added. In §265.118(f) there were three changes:
(1) the requirement was added that "the Regional Administrator
must ensure that the approved post-closure plan is consistent
with §§265.117 through 265.120;" (2) a reference to criteria in
§265.118(g) was dropped; and (3) special requirements affecting
owners and operators before November 19, 1981, were deleted.
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VI. PERMITTING STANDARDS (PART 270)
VI.A Contents of Part B; General Requirements
§270.14(b)(14)
VI.A.I Synopsis of Previous Rule
Section 270.14(b)(14) specified that for existing
facilities the Part B permit application must include
documentation that a notice had been placed in the deed or
appropriate alternate instrument as required by §264.120. The
deed notice required by §264.120 informed potential purchasers
of the property (1) that the land had been used to manage
hazardous wastes, (2) that its use was restricted, and (3) that
a survey plat and record of wastes disposed of had been filed
with the local land authority.
VI.A.2 Summary of Proposed Rule
The Agency proposed to amend §270.14(b)(14) to specify
that the Part B permit application include the following:
For hazardous waste disposal management
units that have been closed, documentation
that notices required under §264.119 have
been filed. (emphasis added)
VI.A.3 Rationale for Proposed Rule
The Agency recognized that many Part B applications will
be filed prior to closure of a hazardous waste disposal unit at
the facility. Because the deed notice is filed only after a
unit has been closed, it will not be possible for the owners or
operators of many facilities to include documentation in their
permit application indicating that the notices have been
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filed. Therefore, the Agency proposed to amend §270.14(b)(14)
to require documentation to be included in the Part B
application only for facilities which had already closed a
hazardous waste disposal unit prior to the submission of the
Part B permit application. In addition, because the notice in
the deed requirement is now included in §264.119, the reference
in §270.14(b)(14) to §264.120 has also been amended.
VI.A.4 Comments and Responses
No comments were received concerning the proposed
amendment.
VI.A.5 Final Rule
The Agency deleted the word "management" from "hazardous
waste disposal management units," and otherwise adopted the
rule as proposed.
VI.B Contents of Part B: General Requirements
§§270.14(b)(15) and (16)
VI.B.I Synopsis of Previous Rule
Section 270.14(b)(15) and (16) specified that the Part B
permit application must include a copy of the most recent
closure and post-closure cost estimates and documentation
demonstrating "compliance with closure and post-closure care
financial assurance requirements in accordance with the
requirements of §§264.143 and 264.145.
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VLB.2 Summary of Proposed Rule
The Agency proposed to amend §§270.14(b)(15) and (16) to
specify that the cost estimates and documentation demonstrating
compliance with the financial assurance requirements either
must be included with the submission of the Part B application
or provided at least 60 days prior to the initial receipt of
hazardous wastes, whichever is later.
VI.B.3 Rationale for Proposed Rule
Sections 264.143 and 264.145 specified that demonstration.
of financial assurance must be made at least 60 days before the
date on which hazardous waste is first received for treatment,
storage, or disposal. Section 270.14 required that
documentation be submitted with the Part B application.
Because the Part B application may be submitted well in advance
of the initial receipt of hazardous waste, the Agency
recognized that this would impose unnecessary costs of
maintaining a financial mechanism on the owner or operator.
Therefore, the Agency proposed to revise §270.14 to specify.
that the most recent cost estimates and demonstration of
financial assurance may be submitted either with the Part B
application or at least 60 days prior to the initial receipt of
hazardous wastes, whichever is later.
VLB.4 Comments and Responses
No comments were received concerning the proposed
amendment.
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VLB.5 Final Rule
The Agency corrected a typographical error and adopted the
rule as proposed.
VI.C Minor Modifications of Permits
§270.42(d)
VI.C.I Synopsis of Previous Regulation
Section 270.42(d) provided that a change in ownership or
operational control of a facility may be considered a minor
permit modification if the Regional Administrator or State
Director ("the Director") determines that two conditions are
met:
(1) No other change is necessary in the permit, and
(2) A written agreement has been submitted
containing a "specific date for transfer of
permit responsibility, coverage,' and liability
between the current and new permittees."
VI.C.2 Summary of Proposed Rule
The proposed rule added a third condition before a change
in ownership or operational control of a facility could be
considered a minor permit modification. The added condition
was that a "demonstration of compliance with the requirements
of §270.72(d) has been submitted to the Director." Section
270.72(d), which concerns changes in ownership during interim
status, required compliance by the old owner or operator with
the requirements of Subpart H until the new owner or operator
has established financial assurance.
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VI.C.3 Rationale for Proposed Rule
The Agency wished to ensure that facilities are
transferred to financially viable firms. The intent of the
proposed rule was to ensure that the new owner demonstrated
compliance with the Subpart H regulations.
VI.C.4 Comments and Responses
One commenter supported allowing a transfer of ownership
or control to be considered a minor permit modification. One
commenter pointed out an ambiguity in the proposed rule that is
being corrected in the final rule. These comments are
addressed in this section. In addition, a number of comments
addressed other aspects' of transfer of responsibility for
financial assurance. Those comments are addressed in
connection with §270.72 in Section VI.D of this document.
VI.C.4.1 Transfer of Ownership
Transfer of ownership or control should be
considered a minor permit modification if the
requirements in the proposed rule are satisfied.
The Agency agrees that a change in ownership should be
subject to the requirements for a minor permit modification. A
change of ownership or operator will not affect the permitted
facility itself or the activities occurring at the facility.
However, a change of ownership or operator could affect
financial assurance, and a condition of the modification is
that financial assurance must be established by the new owner
or operator within a reasonable time.
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VI.C.4.2 Application to Interim Status Facilities
The definition of "permit" under §270.2
excludes interim status facilities. As a result,
the reference in §270.42 to §270.72 is confusing
because §270.72 refers to changes during interim
status and is not necessarily applicable to
changes of ownership of permitted facilities.
In order to eliminate confusion resulting from the
reference in §270.42 to §270.72(d), the Agency has revised
§270.42 in the final rule to include explicitly the deadlines
listed in §270.72 while dropping the reference to §270.72(d).
The Agency intends that the requirements in §270.42 be applied
to both permitted and interim status facilities. The old owner
or operator must comply with Subpart H until the new owner or
operator demonstrates compliance. The new owner or .operator
must demonstrate compliance with Subpart H within six months of
the date of the change in the ownership or operational control
of the facility.
VI.C.5 Final Rule
Based on the comments received in connection with both the
proposed §270.42 and the proposed §270.72, the final rule
retains the requirement that the new owner or operator submit a
revised permit application no later than 90 days prior to the
scheduled change in ownership or operational control. The old
owner or operator must continue to comply with the requirements
of 40 CFR Subpart H until the new owner or operator has
demonstrated that he is complying with the financial assurance
requirements. The final rule revised the language in §270.42
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to include explicitly the deadline in §270.72 requiring the new
owner or operator to demonstrate compliance with Subpart H
requirements within six months of the date of the change in the
ownership or operational control of the facility but to delete
the reference to §270.72. Upon a demonstration by the new
owner or operator of compliance with Subpart H, the Director
(or Regional Administrator) will notify the old owner or
operator in writing that he no longer needs to comply with
Subpart H as of the date of demonstration.
VI.D Changes During Interim Status
§270.72(d)
VI.D.I Synopsis ofPrevious Regulation
The previous rule stated that when there was a transfer of
ownership or operational control, the old owner or operator was
responsible for complying with the Subpart H re'gulations until
the new owner or operator demonstrated compliance with the
financial responsibility requirements. However, no deadline
was imposed on the new owner or operator for complying with the
Subpart H requirements.
VI.D.2 Summary of Proposed Rule
The proposed rule required the new owner or operator of a
facility to demonstrate compliance with the Subpart H
regulations within three months of the transfer of ownership.
(The preamble to the proposed regulations inadvertently
provided that a new owner would be required to demonstrate
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financial responsibility within six months of the transfer of
ownership).
VI.D.3 Rationale for Proposed Rule
The Agency wishes to ensure that facilities are
transferred to financially viable firms. The previous owner or
operator remains responsible for providing financial assurance
for the facility until the new owner demonstrates compliance
with the Subpart H regulations. However, the Agency desires a
relatively speedy transfer of responsibility for financial
assurance to the new owner or operator to ensure that conflicts
over the responsibility for providing financial assurance do
not affect the degree of.assurance.
VI.D.4 Comments and Responses
VI.D.4.1 Recommendations for Other Time Periods/Difficulty in
Obtaining Insurance
Because of the difficulty of obtaining
necessary insurance, six months may be too brief
a period to demonstrate financial responsibility.
The proposed section would delay the sale of
plants. The Agency should instead allow changes
in ownership or operational control to proceed as
planned by the parties, but hold the transferor
liable for compliance with the RCRA substantive
requirements if the Agency determines within 90
days of notification that the transferee cannot
comply with the requirements.
Since difficulties in securing necessary
insurance may preclude the new owner from
demonstrating financial responsibility within
three months, and since the old owner remains
liable, the three month limit is unreasonable.
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The final rule allows six months for the new owner or
operator to demonstrate compliance with Subpart H, which the
Agency believes is a reasonable period. The date of the
transfer of ownership starts the six-month period, but the
potential purchaser can begin to arrange for financial
assurance some time before the actual transfer of ownership.
The Agency agrees that insurance may be difficult to obtain
quickly. However, insurance is not the only mechanism that may
be used to provide assurance of financial responsibility for
closure or post-closure care. A potential owner or operator
could set up any of the other authorized financial assurance
mechanisms to be effective on the day ownership transfers,
contingent on the transfer of ownership. Alternatively,
transfer of ownership could be made contingent on obtaining
financial assurance. The Agency also is addressing the issue
of the availability of insurance for liability coverage in a
separate proceeding (see 50 FR 33902, August 21, 1985). For
these reasons, the Agency does not believe that sales will be
delayed unnecessarily as a result of this requirement. It is
merely imposing a time limit on the new owner or operator
during which he must demonstrate financial responsibility.
VI.D.4.2 Assumption of Responsibility Should Take Place
Quickly
Six months is an unreasonably long period of
time to wait to demonstrate financial
responsibility. The maximum time period should
instead be set at two months. In addition, a
statement should be provided within one week of
the sale by the seller concerning the buyer's
assumption of existing violations, ground-water
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contamination, managerial competency, and the
financial assurance obligations of both seller
and buyer.
The Agency considered adopting the three-month time period
proposed in §270.72(d). However, six months was adopted for
the final rule because it was more reasonable for new owners or
operators who might be unfamiliar with the steps necessary to
satisfy the Subpart H requirements. The previous owner or
operator remains responsible for provid'ing assurances of
financial responsibility until the new owner satisfies the
requirements of Subpart H. As discussed above, the six-month
period should be sufficient to allow the new owner to obtain
*
financial assurance, without unduly delaying the shift of
responsibility.
The specific date when the responsibility shifts between
the old and the new owner or operator is a matter of their
private bargaining. The Agency believes, however, that
providing a statement on assumption of existing violations, as
suggested by the commenter, is unnecessary because the old
owner remains liable until the new owner is able to demonstrate
financial responsibility-
VI.D.4.3 Responsibility of Old Owner
The proposed rule does not specify whether the
old_ owner must maintain financial assurance for
the' 'facility until the new owner meets Subpart H
requirements. EPA should treat interim status
and permitted facilities the same as far as
providing financial assurance is concerned.
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The final rule states explicitly that the old owner
remains responsible until the new owner successfully
demonstrates financial responsibility. If the new owner fails
to meet the six-month deadline, then the new owner is in
violation of the regulations, but the old owner continues to be
financially responsible. The Agency agrees that interim status
and permitted facilities should be treated equally, therefore
the final rule amends §270.42(d) to remove the reference to
§270.70(d) and instead specifies explicitly the obligation of
the seller under a transfer of ownership.
VI.D.5 Final Rule
In response to the comments received concerning this
section, EPA revised both §§270.42 and 270.72 of the final rule
to clarify its intention that a six-month deadline for
demonstrating financial responsibility is established by both
rules, for both permitted and interim status facilities. The
Agency also amended §270.42(d) in the final rule to specify
that when a transfer of ownership or operational control of a
facility occurs, the old owner or operator must continue to
comply with the financial assurance requirements of Subpart H
until the new owner or operator has demonstrated that he is
complying with those requirements. This requirement is
retained in §270.72.
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VII. EFFECTIVE DATES
Section 3010(b) of RCRA provides that EPA's hazardous
waste regulations and revisions thereto take effect six months
after promulgation. The purpose of this requirement is to
allow sufficient preparation time for the regulated community
to comply with major new regulatory requirements. Section
553(d) of the Administrative Procedure Act prohibits
"publication or service of a substantive rule...less than 30
days before its effective date" except for certain exceptions,
including cause. For the amendment to §270.14(b)(14)
i
promulgated today, however, the Agency believes that an
effective date six months or 30 days after promulgation would
cause substantial and unnecessary disruption in the
implementation of the regulations and would be contrary to the
interest of the regulated community and the public.
Today's amendment to §270.14(b)(14) requires that an owner
or operator seeking a permit submit documentation that notices
required under -§264.119 have been filed only for hazardous
waste disposal units that have been closed. The previous
regulations required that documentation of such notices be
submitted for the entire facility, whether or not units have
been closed at the time the permit application is submitted.
The Agency believes it makes little sense that the
intended relief from this requirement be delayed for six
months. Consequently, the Agency is setting the date of
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publication as the effective date for the amendment to
§270.14(b)(14) promulgated in this rulemaking action.
In accordance with the requirement in §3010(b) of RCRA,
the balance of the regulations become effective 180 days after
the date of publication in the Federal Register.
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VIII. REFERENCES
1. Report:
By:
Conference Report, Hazardous and Solid Waste
Amendments of 1984, Oct. 3, 1984.
U.S. House of Representatives.
Report:
By:
Document:
By:
Survey of Compliance with Closure and Post-
Closure Care Plans and Cost Estimate
Regulations, (Draft Report), June 10, 1983.
ICF Incorporated.
Inspection, Enforcement, and Permitting
Activities at New Jersey and Tennessee
Hazardous Waste Facilities, GAO/RCED-84-7,
June 22, 1984, 42 pages.
Report to the Chairman, Subcommittee on
Commerce, Transportation and Tourism; Committee
on Energy and Commerce; House of
Representatives.
The U.S. General Accounting Office.
Document:
By:
Interim Report on Inspection, Enforcement, and
Permitting Activities at Hazardous Waste
Facilities, GAO/TCED-83-241, September 21,
1983, 19 pages.
Report to the Chairman, Subcommittee on
Commerce, Transportation and Tourism; Committee
on Energy and Commerce; House of
Representatives.
The U.S. General Accounting Office.
Report: Average and Maximum Engineering Cost Estimates
for Closure, -(Draft Final Report), August 1983.
By: Pope-Reid Associates, Inc., contract
#68-01-6621, subcontract #EPA 30-10.
Memo:
To:
From:
Post-Closure Notices in Deed, December 6, 1985,
6 pages.
Carole Ansheles, EPA/OSW
Margaret Bracken, David Salvesen, and Craig
Dean, ICF Incorporated..
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7. Memo/ Revised first party and third party costs for
Report: Part 264 landfill closure and post-closure,
July 31, 1985, 99 pages.
To: Jim Craig, EPA/OSW
From: Shirley J. Smith, Pope-Reid Associates, Inc.
8. Memo/ Revised first party and third party closure
-Report: costs for all the hazardous waste treatment,
storage, and disposal technologies, September
13, 1985, 39 pages.
To: Jim Craig, EPA/OSW
From: Shirley J. Smith, Pope-Reid Associates, Inc.
9. Memo: Comparison of Costs of a First vs. Third-Party
Cost Estimating Requirement to Owners or
Operators Using the Financial Test.
November 4, 1985, 4 pages.
To: Carole Ansheles, EPA/OSW
From: John Bohnen, Liz Wallace, Robin Rodensky, ICF
Incorporated.
U.S. Environmental Protection Agency
75 Hawthorne Street 13th Floor
San Francisco, California 94105
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