vvEPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9572.00-1
TITLE: Iipleientation of HS1 Subtitle D, ||4005(c)(l)(A) and 4005(c)(l)(C)
APPROVAL DATE: 10/16/87
EFFECTIVE DATE: 10/16/87
ORIGINATING OFFICE:
0 FINAL
D DRAFT
STATUS:
REFERENCE (other documents):
OS WER OS WER OS WER
/£ DIRECTIVE DIRECTIVE Di
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United States Environmental Protection Agency
Washington. DC 20460
OSWER Directive Initiation Request
1. Directive Number
9572.00-1
2. Originator Information
Name of Contact Person
Lillian Bagus
Mail Code
WH4.563B
Office
osw
Telephone Code
(202) 382-2210
3. Title
Implementation of HSWA Subtitte D, ||4005(c)(1)(A) and 4005(c)(1)(C)
i
4. Summary of Directive (include brief statement of purpose) |
The purpose of this Directive is to provide guidance to the Regions on how
to implement SS4005(c)(1)(A) and (C) of HSWA.
5. Keywords
Subtitle D, Solid Waste. Household Hazardous Waste, Small Quantity Generators
6a. Does This Directive Supersede Previous Directive(s)? m
1 Yes What directive (number, title)
b. Does It Supplement Previous Directive(s)?
XX [No
Yes What directive (number, title)
7. Draft Level
A - Signed by AA/DAA
B - Signed by Office Director
C - For Review & Comment
D - In Development
8.
Document
to be
distributed
to
States
by
Headquarters?
Yes
XXX;
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
VJjtiuu'f^ A. &JuA —
10. Name and Title of Approving Official
J. Winston Porter, Assistant Administrator, OSWER
Date
10/22/87
Date
10/16/87
EPA Form 1315-17 (Rev. 5-87) Previous editions are obsolete.
OSWER OSWER OSWER O
VE DIRECTIVE DIRECTIVE DIRECTIVE
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OSWER Directive Number 9572.00-1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Uol
8 1987
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:
FROM:
TO:
implementation of HSWA Subtitle D, §§ 4005(c)(1)(A)
id
Winston PcferVer
isistant Administrator
Regional Administrators
Regions I - X
Section 4005(c)(1)(A) of HSWA requires the States to develop
and implement permit programs or other systems of prior approval
to control household hazardous waste and hazardous waste from
small quantity generators being managed at solid waste facilities.
Section 4005(c)(1)(C) requires the Administrator of EPA to
determine whether each State has developed an adequate program.
The workgroup established for the development of the
implementation strategy for Subtitle D considered various options
for implementing these sections of HSWA. All Regional Offices
are represented on that workgroup. Based upon the recommendations
of this workgroup, we have selected the option which involves a
requirement for each State to submit to the appropriate EPA
Regional Office a written certification of its compliance
with these statutory requirements. A majority of the workgroup
representatives generally favored this approach to implement - - ---
these particular statutory requirements.
It was further determined that some supporting documentation
must accompany those certifications. At a minimum, States
also should submit copies of relevant State statutory authority
and State administrative rules and brief narrative descriptions
of the State's program for implementing those rules. In some
cases, additional information may be warranted. For instance,
in those cases where implementing authority has been distributed
among a variety of State and local agencies, tables of organization
also may be appropriate.
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- 2 -
OSWER Directive Number 9572.00-1
As for Agency review of these State certifications, it was
determined that since in-depth reviews of state programs and
Solid Waste Management Plans would occur at some point after
promulgation of the Revised Subtitle D Criteria, extensive reviews
of these certifications was not necessary. Rather, reviews
should assure that a state permit program exists. Finally,
looking back on our experiences with the promulgation of the
original Subtitle D criteria in 1979, the most appropriate point
of interaction between EPA and the States in this program area
is the EPA Regional Offices.
Therefore, I am requesting that you send a certified letter
to each of your State's Environmental Program Directors under
your signature. That letter should request that the State submit
to the Regional Office written certification of compliance with
4005(c)(1)(A) and supporting documentation as appropriate. A
sample letter is attached for your use. Feel free to modify it
to accommodate your stylistic requirements. Also attached are
copies of HSWA Subtitle D and copies of Federal Register notices
referenced in that sample letter in sufficient quantity to en-
close with letters to your States. I recommend that you acknow-
ledge receipt of the State certifications, indicate your agreement
(where appropriate) that a State permit program exists and further
indicate that more detailed substantive reviews will occur at a
later date.
.Many Regional participants in the workgroup support the
establishment of a proactive and interactive posture with the
States on Subtitle D issues. Therefore, I encourage you to
establish a point of contact for dialogue with States on solid
waste issues.
Thank you for your prompt attention to this matter. Please
do not hesitate to contact Lillian Bagus of the State Programs
Branch (FTS 382-2210) if you have additional questions on this
request.
Attachments: Sample letter to State Program Directors
44PR 45066, July 31, 1979 (multiple copies)
44FR 53438, September 13, 1979 (multiple copies)
46PR 47048, September 23, 1981 (multiple copies)
Subtitle D, HSWA (multiple copies)
cc: Regional Waste Management Division Directors
Marcia Williams, Director, OSW
Bruce Weddle, OSW/PSPD
Regional staff participants on the Subtitle D implementation
strategy workgroup
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OSWER Directive Number 9572.00-1
Sample letter to be sent by Regional Administrators to
their member States:
To:
State Program Director
Environmental Control Agency
State of
Dear :
In 1979, under authority of Sections 1008(a)(3) and
4004(a) of Subtitle D of the Resource Conservation and
Recovery Act (RCRA), EPA promulgated criteria for design
and operation of solid waste management facilities.
Section 4002(b) of that same Act requires States to develop
and implement solid waste management plans which establish
methods and procedures for achieving environmentally
sound management of solid waste in accordance with the
published federal criteria.
Those federal criteria and guidance for State solid
waste plan development appeared in Parts 256 and 257 of
Title 40 of the Federal Register on July 31, 1979
(44FR 45066-45086), September 13, 1979 (44FR 53438-53468)
and September 23, 1981 (46FR 47048-47052). Copies of all
three Federal Register- notices are enclosed for your
reference.
In 1984 Congress amended Subtitle D, establishing new
and extensive responsibilities for EPA and the States. These
amendments appear in the Hazardous and Solid Waste Amendments
of 1984 (HSWA). A copy of Subtitle D of that Act is also
enclosed for your reference.
The purpose of this letter is to draw your attention to
certain Sections of that revised Subtitle. Specifically,
Section 4005(c)(l)(A) requires States to "...adopt and
implement a permit program or other system of prior approval
and conditions to assure that each solid waste management
facility within such State which may receive hazardous
household waste or hazardous waste due to the provision of
Section 3001(d) for small quanity generators (otherwise not
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OSWER Directive Number 9572.00-1
Sample letter to State Program Directors
- 2 -
" e
subject to the requirements for a permit under Section 3005)
will comply with the applicable criteria promulgated under
Section 4004(a) and Section 1008(a)(3)." Such controls must
be in place by November 8, 1987 (36 months after the enactment
of HSWA).
Note also that the subsequent subsection, 4005(c)(1)(B)
obligates the States to again amend their programs within
eighteen months after promulgation of revised federal
criteria in March, 1988. Those revised criteria will
apply only to those facilities receiving municipal solid
wastes. However/ those State program amendments which
must be in place by November 8, 1987 should satisfy only
the existing criteria outlined in the Federal Register
notices referenced above (but must, as well, extend to all
Subtitle D facilities, not just those which receive municipal
solid wastes).
Additionally, I would like to draw your attention to
Section 4005(c)(1)(C) of HSWA which directs the Administrator
of EPA to undertake reviews of State permit or alternative
control programs to determine whether each State has developed
and implemented an adequate program for controlling household
hazardous waste and small quantity generator hazardous wastes
at Subtitle D facilities. Further, this section provides
the Administrator with discretionary authority to perform
such reviews independently or in conjunction with his review
of the entire State solid waste management plan.
The Agency has decided not to conduct extensive reviews of
State permit or alternate control programs covering these two
categories of hazardous wastes to determine compliance with
Section 4005(c)(1)(A) of HSWA. Instead, States are asked to
submit certifications that they have, or have a schedule to
establish, satisfactory permitting programs or alternate
control systems. This decision is based on a number of
factors.
First, the Agency has determined that most States have permit
programs in place which could easily be modified to provide
specific control over small quantity generator hazardous wastes
and household hazardous wastes. Second, extensive reviews of
the entire State solid waste management plans are likely to
occur sometime after promulgation of the revised Subtitle D
criteria for the design and operation of solid waste management
facilities.
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OSWER Directive Number 9572.00-1
Sample letter to State Program Directors
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Finally, concern has been expressed by some States that
reviewing only the permit portion of the State solid waste
management plan may not give the Agency a complete appreciation
of the extent and effectiveness otf State hazardous waste
controls, especially in those instances where other aspects
of the State's program, outside the formal permit program,
also contribute importantly to overall hazardous waste
controls. Deferring review to a point in time when the
entire solid waste management plan can be evaluated is a
more appropriate approach and one which will also reduce
paperwork burdens on both the States and EPA.
»
Despite our decision to defer detailed EPA reviews of
State permit programs to a later date, we are nevertheless
interested in knowing the current status and effectiveness
of State solid waste permit programs. Such information
will be valuable in determining each State's compliance
with 4005(c)(1)(A) and will also provide valuable infor-
mation to the Agency as it contemplates expanding the
applicability of its revised criteria to facilities other
than those receiving municipal solid wastes. As you know,
States are subject to citizen suits for failure to comply
with HSWA requirements. Evaluating your permit programs
for compliance with 4005(c)(1)(A) for certification to EPA
is a constructive deterrent to such suits. Finally, such
evaluations will provide States with valuable insight into
the nature and extent of future program modifications which
will be necessary to accommodate the revised criteria.
Therefore, I request that you certify in writing before
November 8, 1987, that your solid waste permitting program
and/or other alternative systems of control are sufficient
to satisfy your statutory obligations under 4005(c)(1)(A)
of HSWA or that you have a schedule of program modifications
to establish your compliance with your statutory obligations.
Please include that schedule. I also request that you include
appropriate supporting documentation. At a minimum, that
documentation should include copies of all relevant State
statutes and administrative rules and also a brief narrative
description of your program policies and procedures for
implementing those rules. Include additional documentation
as you deem appropriate.
Please direct your certification package to:
Mr.(MS)
U.S. EPA Region
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OSWER Directive Number 9572.00-1
Sample letter to State Program Directors
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Thank you for your prompt and careful attention to this
matter.
Sincerely,
Regional Administrator
Enclosures: * 44FR 45066, July 31, 1979
* 44FR 53438, September 13, 1979
* 46FR 47048, September 23, 1981
* Subtitle D, HSWA
cc: Bruce Weddle, EPA Office of Solid Waste, Director,
Permits and State Programs Division
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243 SOUP YMSTE DISPOSAL ACT Sat. 4081
is inadequate to assess the potential risk to human health as pro-
vided in subsection (f).
(e) PERIODIC REFOBTS.—The Administrator of such Agency shall
issue periodic reports which include the results of all the assess-
. menta carried out under this section. Such assessments or other ac-
tivities shall be reported after appropriate peer review.
(f) DEFINITION.—For the purposes of this section, the term
"health assessments" ghyll include preliminary assessments of the
potential risk to human health posed by individual sites and facili-
ties subject to this section, based on such factors as the nature and
extent of contamination, the existence of potential for pathways of
human exposure (including ground or surface water contamination,
air emissions, and food rfmin contamination), the size and potential
susceptibility of the community within the likely pathways of expo-
sure, the comparison of expected human exposure levels to the
short-term and long-term health effects associated with identified
contaminants and any available recommended exposure or toler-
ance limits for such contaminants, and the comparison of mriHting
morbidity and mortality data on dfoeaflgff that may be associated
with the observed levels of exposure. The assessment shall include
an evaluation of the risks to the potentially affected population
from all sources of such contaminants, including known point or
nonpoint sources other than the site or facility in question. A pur-
pose of such preliminary assessments shall be to help determine
whether fulLecale health or epidemiologies! studies and medical
evaluations of exposed populations shall be undertaken.
(g) COST RECOVERY.—In any case in which a health assessment
performed under this section discloses the exposure of a population
to the release of a hazardous substance, the costs of such health as-
sessment may be recovered as a cost of response under section 107
of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 from persons causing or contributing to such
release of such hazardous substance or, in the case of multiple re-
leases contributing tcnwch exposure, to all such relc
Subtitle D—State or Regional Solid Waste Plans
OBJECTIVE) OF 8UBTRU
SBC. 4001. [6941] The objectives of this subtitle are to assist in
developing and encouraging methods for the disposal of solid waste
which are environmentally sound and which maximize the utiliza-
tion of valuable resources including energy and materials which
are recoverable from solid waste and to encourage resource conser-
vation. Such objectives are to be accomplished through Federal
frMyhufcai at^
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S*c4002 _ SOUP WASTE DISPOSAL ACT _ 244
«
of the recycling and resource recovery interest within the area en-
compassed by the planning process.
FEDERAL GUIDELINES FOR PLANS
SEC. 4002. [6942] (a) GUIDBLINEB FOR IDENTIFICATION OF RE-
GIONS. — For purposes of encouraging and facilitating the develop-
ment of regional planning for solid waste management, the Admin-
istrator, within one hundred and eighty days after the date of en-
actment of .this section and after consultation with appropriate
Federal, State, and local authorities, shall by regulation publish
guidelines for the identification of those areas which have common
solid waste "iy"ag»»^aT
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245 SOUP WASTE DISPOSAL ACT S*c.40C3
(9) the political, economic, organizational, finanrfai^ and
management problems affecting comprehensive solid waste
management!
(10) types of resource recovery facilities and resource conser-
vation system* which are appropriate; and
(11) available new and gd«i*tnnai markets for recovered ma-
terial and energy and energy resources recovered from solid
waste as well as methods for conserving such materials and
energy.
MINIMUM BBQUIBBMXNT3 FOB APPROVAL OP PLANS
SBC. 4003. C6943] (a) MINIMUM RBQUIRXMKNTO.—In order to be
roved under section 4007, each State plan must comply with the
mur oumzDtuD ^^TMiffyTn*?Hvfr™^
(1) The plan snail identify (in accordance with section
4006(b)) (A) the responsibilities- of State, local, and regional au-
thorities in thf* itnniaman^atfon of tha State pi*»*, (B) th* distri-
bution of Federal rands to the authorities responsible for devel-
opment flt"i jtnnlatnan^atfon State pursuant to th* require-
ments of section 4006.
(4) The plan shall provide for the establishment of such State
regulatory powers af may be necessary to implement the plan.
(5) The plan shall provide that no State or local government
within the State shall be prohibited under State or local law
from negotiating and entering into long-term contracts for the
supply of solid waste to resource recovery facilities, from enter-
ing into long-term contracts for *W operation of such faHiitio^
or from •**n*j"g long-term markets for ™«<»"*l and energy
recovered from such fnnlitms. or for conserving materials or
energy by reducing the volume of waste.
(6) The plan shall provide for such resource conservation or
recovery and for the disposal of solid waste in sanitary land-
fills or any combination of practices so as may be necessary to
use or dispose of such waste in a mann*^ that is environmen-
tally sound.
(b) DacBRXONABT PLAN PROVISIONS RBLATBTO TO RBCTCLBD
On.— Any State plan submitted under this subtitle may include, at
the option of the State, provisions to carry out each of the follow-
ing:
(1) Encouragement, to the ma»imiim extent feasible and con-
sistent with the protection of the public health and the envi-
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Sse.4003 _ SOUP WASTE DISPOSAL ACT _ -— «2*
ronment, of. the use of recycled oil in all appropriate areas at
State and local government **
(2). Encouragement of persons contracting with the State t,
use recycled oil to the maximum extent feasible, consisw,
with protection of the public health and the environment.
(3) Informing the public of the uses of recycled oil.
(4) Establishment and implementation of a program (incliM
ing -any necessary licensing of persons and including the ^
where appropriate, of manifests) to assure that used oil ia cojl
lected, transported, treated, stored, reused, and disposed of, y,
a manner which does not present a hazard to the public health
or the environment.
Any plan submitted under this title before the date of the enact
ment of the Used Oil Recycling Act of 1980 may be amended, at
the option of the State, at any time after such date to include any
provision referred to in this subsection.
(c) ENKROT AND MATERIALS CONSERVATION AND RBCOVKKY FSAQ.
BIUTY PLANNING AND ASBXBTANCS.-- (1) A State which has a plan
approved under this subtitle or which has submitted a plan for
such approval shall be eligible, for assistance under section
4008(aX3) if the Administrator determines that under such plan th«
State will—
(A) analyze and determine the economic and tae
bility of facilities and programs to conserve resources which
contribute to the waste stream or to recover energy and mate-
rials from municipal waste;
(B) analyze the legal, institutional, and economic impedi-
ments to the development of systems and facilities for conser-
vation of energy or materials which contribute to the waste
stream or for the recovery of energy and materials from mu-
nicipal waste and make recommendations to appropriate gov-
ernmental authorities for overcoming such impediments;
(O assist municipalities within the State in developing plans,
programs, and projects to conserve resources or recover energy
anri material* from TT"1T"g'pfl1 Waste? an<^
CD) coordinate the resource conservation and recovery plan-
ning under subparagraph (Q.
(2) The analysis referred to in paragraph (1XA) shall include—
(A) the evaluation of, and establishment of priorities among,
market npf**r1"T>'*'^*f for industrial flnf? commercial users of all
types (including public utilities fln
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M7 SOUP WASTE DISPOSAL ACT Sec. 4088
(E) comparison of the relative total costs between conserving
resources and disposing of or recovering such waste; and
(F) studies of impediments to resource conservation or recov-
ery, including business practices, transportation requirements.
Of 8vOT8flB ^ITTPCMI vl^B»
Such studies and analyses shall also include studies of other
sources of solid waste from which energy and materials may be re-
« • • • « ^^ m
CQVBF0Q OT OUUUfilXOCu "'
(d) SOB or WASTB-TO-ENKBCY FAOUTIBS.—Notwithstanding any
of the above requirements, it is the intention of this Act and the
planning process developed pursuant to this Act that in determin-
ing the size of the waste-to-energy facility, adequate provision shall
be given to the present and reasonably anticipated future needs of
the recycling and resource recovery interest within the area en-
compassed by the planning process.
CURttA FOB SANITARY LANDFILLS; SANITARY LANDFILLS RBQUIBBD
FOB ALL DISPOSAL
SBC. 4004. [$944] (a) CBITBBIA FOB SANITARY LANDFILLS.—Not
later than one year after the date of enactment of this section,
after consultation with th* States, ^"^ after notice and public hear*
tary landfills »T»d which "hall be classified as open dumps within
the meaning of this Act. At a minimum, such criteria shall provide
tha^i a. facility may be classified as a sanitary landfill and not an
open dump only if there is no reasonable probability of advene ef-
fects on health or the environment from disposal of solid waste at
such facility. Such TpffM*^*V>r|'T may provide for the classification of
the types of sanitary Landfills.
(b) DISPOSAL RBQUIBBD To BB IN SANITARY LANDFILLS, Etc.— For
purposes of complying with section 4008(2) each State plan shall
prohibit the establishment of open dumps and contain a require-
ment that disposal of all solid waste within the State shall be in
compliance with such section 4003(2).
(c) EffBUUVB DATB.— The prohibition contained in subsection (b)
shall take effect on the date six months after the date of promulga-
tion of regulations under subsection (a).
UPOBADING OF OPBN DUMPS
SBC. 4005. [6945] (a) CLoenro OB UPOBABINO OP EXISTING OPBN
DUMPS.— Upon promulgation of criteria under section 1008(aX3X
any solid waste management practice or disposal of solid waste or
hazardous waste which constitutes the open dumping of solid waste
or hazardous waste is prohibited, except in the case of any practice
or disposal of solid waste under a timetable or schedule for compli-
ance established under this section. The prohibition contained in
the preceding sentence shall be enforceable under section 7002
80B1B0C PQfSODfl ftflfffUTftfl 121 wVfr BiTw OJ
with section 4003(2) and 4003(3), eachState plan shall
contain a requirement that all existing disposal facilities or sites
for solid waste in such State which are open dumps listed in the
inventory under subsection (b) shall comply with such measures as
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SJC.4008 SOUP WASTE DISPOSAL ACT 2<,
other public or private alternatives for solid waste management to
comply with the prohibition on open dumping and is unable to uti-
lize such alternatives to so comply, a timetable or schedule for com-
pliance for such practice or disposal of solid waste which specifies a
schedule of remedial measures, including an enforceable sequence
of actions or operations, leading to compliance with the prohibition
of open dumping of solid waste within a reasonable time (not to
exceed 5 years from the date of publication of criteria under sec-
tion 1008(aX3)).
(b) INVENTORY.—-To assist the States in complying with section
4003(3), not later than one year after promulgation of regulations
under section 4004, the Administrator, with the cooperation of the
Bureau of the Census shall publish an inventory of all disposal fa-
cilities or sites in the United States which are open dumps within
ftifi mtmning of thin Act.
(c) CONTROL or HAZARDOUS DISPOSAL.—(1XA) Not later than 36
• months after th*> «j"<*» of enactment of thA Hazardous and Solid
Waste Amendments of 1984, each State shall adopt and implement
a permit program or other system of prior approval and conditions
to assure that each solid waste management facility within such
State which may receive hazardous household waste or hazardous
waste due to the provision of section 3001(d) for small quantity gen-
erators (otherwise not subject to the requirement for a permit
under section 3006) will comply with the applicable criteria pro-
mulgated under section 4004(a) and section 1008(aX3).
(B) Not later than eighteen months after the promulgation of re-
vised criteria under subsection 4004(a) (as required by section
4010(c)), each State shall adopt and implement a permit program or
other system or prior approval and conditions, to assure that each
solid waste management facility within such State which may re-
ceive hazardous household waste or hazardous waste due to Use
provision of section 3001(d) for small quantity generators (otherwise
not subject to the requirement for a permit under section 3005) will
comply with the criteria revised under section 4004(a).
(C) The Administrator shall determine whether each State has
developed an adequate program under this paragraph. The Admin*
istrator may "in*"* such a determination in conjunction with ap-
proval, disapproval or partial approval of a State plan under sec-
tion 4007.
(2XA) In any State *h»t the Administrator determines b** not
ted an wwrm** progriun for such- facilities under paragraph
t ^. *.*_ *~ ? ™ • «*^~« • «_ _ « • • * < _ • * y~ f^
(1XB) by the date provided in such paragraph, the Administrator
may use the authorities available under sections 3007 and 3008 of
th if titto to onfnma th* prohibition contained in subsection (a) of
this section with respect to such facilities.
(B) For purposes of this paragraph, the term "requirement of this
subtitle" m section 3008 shall be deemed to include criteria pro-
mulgated by the Administrator under sections 1008(aX3) and
4004(a) of toil title, and the term "hazardous wastes" in section
3007 shall be deemed to include solid waste at facilities that may
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249 SOUP WAST! DISPOSAL ACT See. 4008
handle hazardous household wastes or hazardous wastes from
small quantity generators.
PBOCKDURB FOB DBVXLOPMKNT AND IMPLRMKNTATION OF 9TATB PLAN
S»c. 4006. £6946] (a) IDENTIFICATION OF REGIONS.—Within one
hundred qn«i eighty days after publication of guidelines under sec-
tion 4002(a) (relating to Mantiffegtym of regions), the Governor of
each State, after consultation with local elected officials, shall pro-
mulgate regulations based on such guidelines identifying the
boundaries of each area within the State which, as a result of
urban concentrations, geographic conditions, markets, and other
factors, is appropriate for carrying out regional solid waste man-
agement. Such regulations may be modified from time to time
(identifying additional or different regions) pursuant to such guide-
lines.
(b) IDKNTOTCATION or STAR AND LOCAL AGSNCOB AND RBFONBJ-
mim.—<1) Within one hundred and eighty days after the Gover-
nor promulgates regulations under subsection (aX for purposes of
facilitating ^Ko i\f/*f»\ffrrmemt. ami tmntanmn.ttrtjqn. Of a State plan
which will meet the minimum requirements of section 4008, the
which
State, together with appropriate elected officials of general purpose
of local g
units of local government, shall jointly (A) identify an agency to de-
velop the State plan and identify one or more agencies to imple-
ment such plan, «nd (B) identify which goHd waste fanagapnant ac-
tivities wilt under such State plan, be planned for and carried out
by the State and which such management activities will, under
such State plan, be planned for and carried out by a regional or
local authority or a combination of regional or local and State au-
thorities. If a multi-functional regional agency authorized by State
law to conduct *aij«i waste planning an'r manag»m«>nt (the mem-
bers of which are appointed by the Governor) is in erintence on the
date of «»T»ant of tfri« Act, the Governor «naii identify such au-
thority for purposes of carrying out within such region clause (A) of
this paragraph!. Where feasible, designation of the agency for the
affected area designated under section 208 of the Federal Water
Pollution Control Act (86 StaL 889) shall be considered, A State
agency faten^iffad «nA>y tt>i« paragraph anai^ be ^rfoHfoh0^ or des-
ignated by the Governor of such State. Local or regional agencies
identified under this paragraph shall be composed of individuals at
least a majority of whom are elected local officials.
(2) If planning and implementation agencies are not identified
and designated or established as required under paragraph (1) for
any affected area, the governor shall, before the date two hundred
and seventy days after promulgation of regulations under subsec-
tion (a), establish or designate a State agency to develop and imple-
ment the State plan for such area.
(c) INTMBSTATB RXOIONS,—(1) In the case of any region which,
L. t A.I • j _ 9t . i_t»_i s t. A! A _i i • * A. •___
pursuant to thfr guidelines published by the Administrator
(relating to
section 4002(a) (reating to identification of regions), would be locat-
ed in two or more States, the Governors of the respective States,
after consultation with local elected officials, shall consult, cooper-
ate, and enter into agreements identifying the boundaries of such
region pursuant to i
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Set. 4007 SOUP WISH DISPOSAL ACT _
(2) Within one hundred and eighty days after an inters
region is identified by agreement under paragraph (1), appropr
elected officials of general purpose units of local govermr
within such region shall jointly establish or designate an agenc
develop a plan- for such region. If no such agency is estabbshec
within such period by sach officials, the Governor!
the respective State* may, by agreement, establish or designate
such purpose a single representative organization including elec
officials of general purpose units of local government within si
region.
(3) Implementation of interstate regional solid waste manai
ment plans shall be conducted by units of local government for a
portion of a region within their jurisdiction, or by multijurisd
tional agencies or authorities designated in accordance with Sts
law, including those designated by agreement by such units of lot
government for such purpose. If no such unit, agency, or author!
is so designated, the respective Governors shall designate or esta
ii«ti a »ingi« interstate agency to implement such plan.
(4) For purposes of this subtitle, so much of an interstate region,
plan as is carried out within a particular State shall be deem
part of the State plan for such State.
APPBOVAl OP 8TATB FLAN; PKDKBAL A88XBTANCB
Sac. 4007. £6947] (a) PLAN APPROVAL.— The Administrator thai
within six months after a State plan has been submitted for at
proval, approve or disapprove the plan. The Administrator aha)
approve a plan if he determines that —
(1) it meets the requirements of paragraphs (IX (2), (3X aac
(5) of section 4003; and
(2) it contains provision for revision of such plan, after notice
an<4 public heating, whenever the Administrator, by regula-
tion, determines— -
(A) that revised regulations respecting minimum re-
quirements have been promulgated under paragraphs (1),
(2X(3),and(5)of section 4003 with which the State plan is
not in compliance*
(B) that information has become available which demon*
strates the inadequacy of the plan to effectuate the pur-
poses of this subtitle; or
(Q that such revision is otherwise necessary.
The Administrator shall review approved plans from time to time
and if he determines that revision or corrections are necessary to
bring such plan into compliance with the minimnm requirements
promulgated under section 4003 (including new or revised require*
meats), he shall, after notice and opportunity for public hearing;
withdraw his approval of such plan. Such withdrawal of approval
•hail cease to be effective upon thy a-*foi*'Ti**tnitor>s determination
such complies with such «*»»"»*>«M*»* requirements.
(b) EucmiLiTr or STARS IOB FKBBRAL PWANCIAI. ABOBTANCE.—
(1) The Administrator shall approve a State application for finan-
cial aayjatan^^ iir>«fai- tKtf subtitle, ar>*J malm grants to SUCh State,
if such State and local and regional authorities within such State
have complied with the requirements of section 4006 within the
-------
251 SOLID WASTE DISPOSAL ACT SK. 4001
under such section and if such State has a State
plan which has beat approved by the Administrator under this
subtitle.
(2) The Administrator shall approve a State application for finan-
cial assistance under this subtitle, and make grants to such State,
for fiscal yean 1978- and 1979 if the Administrator determines that
the State plan continues to be eligible for approval under subsec-
tion (a) and is being implemented by the State.
(3) Upon withdrawal of approval of a State plan under subsection
(a), the Administrator shall withhold Federal financial and techni-
cal assistance under this subtitle (other than such technical assist-
ance as may be necessary to assist in obtaining the reinstatement
of approval) until such time as such approval is reinstated.
(c) EXISTING Acnvrras.—Nothing in this subtitle shall be con-
strued to prevent or affect any activities respecting solid waste
planning or m^na^amtmt. which are carried out by State, regional,
or local authorities unless such activities are inconsistent with a
State pJni> approved by the Administrator under th'a subtitle.
ntDKBAL ASSISTANCE
SK. 4008. [6948] (a) AUTHORIZATION or FKDKBAL FINANCIAL Aa-
fflSTANCK.—<1) There are authorized to be appropriated $30,000,000
for fiscal year 1978, $40,000,000 for fiscal year 1979, $20,000,000 for
fiscal year 1980, $15,000,000 for fiscal year 1981, $20,000,000 for the
fiscal year 1982, and $10,000,000 for each of the fiscal years 1985
through 1988 for purposes of financial assistance to States and
local, regional, and interstate authorities for the development and
implementation of plans approved by the Administrator under this
subtitle (other than the provisions of such plans referred to in sec-
tion 4003(bX relating to feasibility planning for municipal waste
energy and materials conservation and recovery). .
(2XA) The Administrator is authorized to provide financial assist*
ance to States, counties, municipalities, and intermunicipal agen-
cies and State and local public solid waste management authorities
for implementation of programs to provide solid waste manage-
ment, resource recovery, and resource conservation services and
hazardous waste management. Such assistance q}"»H include assist-
ance for facility planning and feasibility studies; expert consulta-
tion; surveys and analyses of market needs; marketing of recovered
resources; technology assessments; legal expenses; construction fea-
sibility studies; source separation projects; and fiscal or economic
investigations or studies; but such anmstance shall not include any
other element of construction, or say acquisition of land or interest
in land, or any subsidy for the price of recovered resources. Agen-
cies assisted Brofor subsection •hall
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SOUP WASTE DISPOSAL ACT 252
paragraph shall* be available only for programs certified by the
State to be consistent with any applicable State or areawide solid
waste management plan or program. Applicants for technical and
financial assistance under this section shall not preclude or fore-
close consideration of programs for the recovery of recyclable mate-
rials through source separation or other resource recovery tech-
niques. .
(O There are authorized to be appropriated $15,000,000 for each
of the fiscal years 1978 and 1979 for purposes of this section. There
are authorized to be appropriated $10,000,000 for fiscal year 1980,
$10,000,000 for fiscal year 1981, $10,000,000 for fiscal year 1982, and
$10,000,000 for each of the fiscal years 1985 through 1988 for pur-
poses of this paragraph.
(D) There are authorized—
(i) to be made available $15,000,000 out of funds appropriated
for fiscal year 1985, and
(ii) to be appropriated for each of the fiscal years 1986
through 1988, $20,000,000
for grants to States (and where appropriate to regional, local, and
interstate agencies) to implement programs requiring compliance
by solid waste management facilities with the criteria promulgated
under section 4004(a) and section 1008(aX3) and with the provisions
of section 4005. To the extent practicable, such programs shall re-
quire such compliance not later than thirty-six months after the
date of the enactment of the Hazardous and Solid Waste Amend*
ments of 1984.
(3XA) There is authorized to be appropriated for the fiscal year
beginning October 1, 1981, and for each fiscal year thereafter
before October 1, 1986, $4,000,000 for purposes of making grants to
States to carry out section 4003(b). No amount may be appropriated
for such purposes for the fiscal year beginning on October 1, 1986,
or for any fiscal year thereafter.
(B) Assistance provided by the Administrator under this para-
graph shall be used only for the purposes specified in section
4003(b). Such assistance may not be used for purposes of land ac-
quisition, final facility design, equipment purchase, construction,
startup or operation activities.
(O Where appropriate, any State receiving assistance under this
paragraph may make all or any part of such assistance available to
municipalities within the State to carry out the activities specified
in section 4003(bXlXA} and (B).
(b) STATS ALLOTHZNT.—The sums appropriated in any fiscal year
under subsection (aXl) shall be allotted by the Administrator
among all States, in tfw ratio tjytt- the population in each State
bears to the population in all of the States, except that no State
shall receive less than one-half of 1 per centum of the sums so al-
lotted in any fiscal year. No State shall receive any grant under
this section during any fiscal year when its expenditures of non-
Federal funds for other than non-recurrent expenditures for solid
waste management control programs will be less than its expendi-
tures wen for such programs during fiscal year 1975, except that
such funds may be reduced by an amount equal to their proportion-
ate share of any general reduction of State spending ordered by the
-------
253 _ SOUP WASTE DISPOSAL ACT _ Set. 4008
Governor or legislature of such State. No State shall receive any
grant for solid waste management programs unless the Adminis-
trator is satisfied that such grant will be so used as to supplement
and, to the extent practicable, increase the level of State, local, re-
gional, or 'other non-Federal funds that would in the absence of
such grant be made available for the maintenance of such pro-
grams.
(c) DISTRIBUTION or FEDERAL FINANCIAL ASSISTANCE WITHIN THE
STATS.— The Federal assistance allotted to the States under subsec-
tion (b) shall be allocated by the State receiving such funds to
State, local, regional, and interstate authorities carrying out plan-
ning and implementation of the State plan. Such allocation shall
be based upon the responsibilities of the respective parties as deter-
mined pursuant to section 4006(b).
(d) TECHNICAL ASSISTANCE.— <1) The Administrator may provide
torhtycal assistance to State and local governments for purposes of
developing and implementing State plans. Technical assistance re-
specting resource recovery and conservation may be provided
through resource recovery and conservation panels, established in
the Environmental Protection Agency under subtitle B, to assist
the State and local governments with respect to particular resource
y and conservation projects under consideration and to
evaluate their effect on the State plan.
(2) In carrying out this subsection, the Administrator may, upon
request, provide technical assistance to States to assist in the re-
moval or modification of legal, institutional, economic, and other
impediments to the recycling of used oil. Such impediments may
include laws, regulations, and policies, including State procurement
policies, which are not favorable to the recycling of used oiL
(3) In carrying out this subsection, the Administrator is author-
ized to provide technical assistance to States, municipalities, re-
gional authorities, and intermunicipal agencies upon request, to
assist in the removal or modification of legal, institutional, and eco-
nomic impediments which have the effect of impeding the develop-
ment of systems and facilities to recover energy and materials from
municipal waste or to conserve energy or materials which contrib-
ute to the waste stream. Such impedimenta may include—
(A) laws, regulations, and policies, including State and local
procurement policies, which are not favorable to resource con-
servation and recovery policies, systems, and facilities;
(B) impediments to the fiiMtnci"g of fi»«^|itt«* to conserve or
recover energy and materials from municipal waste through
the exercise of State and local authority to issue revenue bonds
an«j the use of State and local credit assistance; fl"^
(C) impediments to institutional arrangements necessary to
undertake projects for the conservation or recovery of energy
and materials from municipal waste, fr»giudfag the creation of
special districts, authorities, or corporatioitB where necessary
having the power to secure the supply of waste of a project, to
conserve resources, to implement the project, and to undertake
related activities.
(e) SPECIAL COMMUNTTIBS.— (1) The Administrator, in cooperation
rith State and local officials, shall identify local governments
40-919 0-85-17
-------
SsfclflBt _ SOUP WASTE DISPOSAL ACT _ _254
\
•within the United States (A) having a solid waste disposal facility
CD which is owned* by the unit of local government, (ii) for which an
order has been issued by the State to cease receiving solid waste
for treatment, storage, or disposal, and (iii) which is subject to a
State-approved end-use recreation plan, and (B) .jwbich are located
over an aquifer which is the source of drinking water for any
person or public water system and which has serious environmen-
tal problems resulting from the disposal of such solid waste, includ-
ing poffiiblfi methane migration.
(2) There is authorized to be appropriated to the Administrator
$2,500,000 for the fiscal year 1980 and $1,500,000 for each of the
fiscal years 1981 and 1982 ' to make grants to be used for contain-
ment and stabilization of solid waste located at the disposal sites
referred to in paragraph (1). Not more than one community in any
State «JM»H be eligible for grants under this paragraph «««j not
more than one project in any State shall -be eligible for such grants.
No unit of Ideal government shall be eligible for grants under this
paragraph with respect to any site which exceeds €6 acres in size.
(0 ABBISTANCC TO STATB IQB DBCBRIONAKT PBOQKAM ram Racr-
ajp Oa.— {!) The Administrator may make grants to States,
which have a State plan approved under section 4007, or which
have submitted a State plan for approval under such section, if
such plan includes the discretionary provisions described in section
4003(6). Grants under this subsection shall be for purposes of assist*
ing the State in carrying out such discretionary provisions. No
grant under this subsection may be used for construction or for the
acquisition of land or equipment.
(2) Grants under this subsection shall be allotted among the
States in the same manner as provided in the first sentence of sub-
section (b).
(3) No grant may be made under this subsection unless an appli-
cation therefor is submitted to, and approved by, the Administra-
tor. The application «h*n be in .such form, be submitted in such
manner, and contain such information aa the Administrator may
require.
(4) For purposes of making grants under this subsection, there
are authorized to be appropriated $6,000,000 for fiscal year 1982,
$6,000,000 for fiscal year 1988, and $6,000,000 for each of the fiscal
yean 1986 through 1988.
(g) ASSJBTANCB TO MUNZdPAUIXB FOB. ENKBOY AND MATERIALS
AKD RxcovzBY PLANNING AcnviTBS.— <1) The Ad-
ministrator is tmthoriaffd to Tffftl**1 grants to TT"*T"'ftt regional
authorities, and intermnnicipnl agencies to carry out activities de-
aragraphs (A) and (B) of section 4003(bXl).1 Such
made only pursuant to an application submitted to
(^ff by thft pM"u^»p*tfcy which application ^>a* been
approved by the State and determined by the State to be consistent
J'E^H AsssvsflftBSBVvl'DBi OOsBBBslDBltt vBl svs*CDl0BB^ 2CD 4s* fDA QDBXvWOfl's) P0OQs^v Q'B ^^wCv 2BI^7 GBsVDsVBfl ^flJft
-------
2K SOUP WAST: DISPOSAL ACT see.4009
with any State plan approved or submitted under this subtitle or
any other appropriate planning carried out by the State.
(2) There is authorized to be appropriated for the fiscal year be-
ginning October 1, 1981, and for each fiscal year thereafter before
October 1, 1986, $8,000,000 for purposes of making grants to mu-
nicipalities under this subsection. No amount may be appropriated
for such purposes for the fiscal year beginning on October 1, 1986,
or for any fiscal year thereafter.
(3) Assistance provided by the Administrator under this subsec-
tion shall be used only for the purposes specified in paragraph (1).
Such assistance may not be used for purposes of land acquisition,
final facility design, equipment purchase, construction, startup or
operation activities.
RURAL COMMUNITIES ASSISTANCE
Sic. 4009. [69493 (a) IN GKNKRAL.—The Administrator shall
make grants to States to provide assistance to municipalities with
a population of five-thousand or less, or counties with a population
of ten thousand or less or less than twenty persons per square mile
and not within a metropolitan area, for solid waste management
facilities (including equipment) necessary to meet the requirements
of section 4005 of this Act or restrictions on open burning or other
requirements arising under the Clean Air Act or the Federal
Water Pollution Control Act Such assistance shall only be avail-'
able-
CD to any municipality or county which could not feasibly be
included in a solid waste management system or facility serv-
ing an urbanized* multijurisdictional area because of its dis-
tance from such systems;
(2) where existing or planned solid waste management serv-
ices or facilities are unavailable or insufficient to comply with
the requirements of section 4005 of this Act; and
(3) for systems which are certified by the State to be consist-
ent with any plans or programs established under any State or
areawide planning process.
(b) ALLOTMENT.—The Administrator shall allot the sums appro-
priated to carry out this section in any fiscal year among the
States in accordance with regulations promulgated by him on the
basis of the average of the ratio which the population of rural
areas of each State bears to the total population of rural areas of
all the States, the ratio which the population of counties in each
State having less than twenty persons per square mile bears to the
total population of such counties in all the States, and the ratio
which the population of such low-density counties in each State
having 33 per centum or more of all families with incomes not in
excess of 125 per centum of the poverty level bean to the total pop-
ulation of such counties in all the States.
(c) Lour.—The amount of any grant under this section shall not
exceed 75 per centum of the costs of the project No assistance
under this section shall be available for the acquisition of land or
interests in land.
(d) APPROPRIATIONS.—There are authorized to be appropriated
125,000,000 for each of the fiscal years 1978 and 1979 to carry out
-------
SOUP msTC DISPOSAL ACT
this section. There are authorized to be appropriated $10,000,000
for the fiscal year 1980 and 115,000,000 for each of the fiscal yean
1981 and 1982 to carry out this section.
ADBQUACT O» OBTAIN OUIDKUNK8 AND CRTrBBIA
S«c. 4010. [6949a J (a) STUDY.— The Administrator shall conduct
a study of the extent to which the guidelines and criteria under
this Act (other than guidelines and criteria for facilities to which
subtitle C applies) which are applicable to solid waste management
and" tiisposal facilities, including, but not limited to lan^PMT and
surface impoundments, are adequate to protect human health and
the environment from ground water contamination. Such study
shall include a detailed assessment of the degree to which the crite-
ria under section 1008(a) and the criteria under section 4004 re-
garding monitoring, prevention of contamination, and
action are adequate to protect ground water and shall also include
recommendation with respect to any additional enforcement au-
thorities which the Administrator, in consultation with th* Attor-
ney General, deem* necessary for such purposes.
(b) RXPOBT.— Not later than thirty-six months after the date of
enactment of the Hazardous and Soud Waste Amendment! of 1984,
the Administrator shall submit a report to the Congress setting
forth the results of the study required under this section, together
with any >*>"'MiiiB**f*^^t>^|T **M> by tfoa &Amin\ffafiffa[ on th» bans*
of such study.
(c) RxvtnoNB or GunmiNB AND CRmnuA.— Not later than
March 31, 1988, the Administrator shall promulgate revisions of
the criteria promulgated under paragraph (1) of section 4004(a) and
under section 1008(aX3) for facilities that may receive hazardous
household wastes or hazardous wastes from small quantity genera-
tors wider section 3001(d). The criteria shall be those naressary to
protect human health and the environment and may take into ac-
count the practicable capability of such facilities. At a minimum
sswh revisions for facilities potentially receiving such wastes shook!
require ground water monitoring as necessary to detect contamina-
tion, establish criteria for the acceptable location of new or existing
facilities, and provide for corrective action as appropriate.
Subtitle E— Duties of the Secretary of Commerce in Resource and
S«e 500L £69511 The Secretary of Commerce shall encourage
greater conunerciauzation of proven resource recovery technology
by providing—
(1) accurate specifications for recovered materials;
(2) "^intit»tifaf of development of markets for recovered ma-
terials;
(3) promotion of proven technology; and
-------
Tuesday
July 31, 1979
Part IN
Environmental
Protection Agency
Guidelines for Development and
Implementation of State Solid Waste
Management Plans
-------
45066.
Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Rcgulalions
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 256
IFRL 1224-8]
Guidelines for Development and
implementation of State Solid Waste
Management Plans
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This rule contains guidelines
for the development and implementation
of State solid waste management plans
(the guidelines). These guidelines are
required by section 4002(b) of the Solid
Waste Disposal Act. as amended by the
Resource Conservation and Recovery
Act of 1976 (the Act). States are eligible
to receive financial assistance under
subtitle D of the Act if the State plan has
been approved by EPA. This rule
establishes the requirements for State
plans and recommends methods and
procedures to meet these requirements.
As set forth in the Act, the State plan
must provide for the identification of
State, local, and regional responsibilities
for solid waste management,- the
encouragement of resource recovery and
conservation and the application and
enforcement of environmentally sound
disposal practices.
EFFECTIVE DATE: August 30,1979.
FOR FURTHER INFORMATION CONTACT:
Ms. Susan Absher, Office of Solid
Waste (WH-564). Environmental
Protection Agency, 401 M Street. S.W..
Washington, D.C. 20460. 202/755-9145.
SUPPLEMENTARY INFORMATION: On
August 28,1978, EPA published a
proposed rule (43 FR 38534] containing
guidelines for State solid waste
management plans. Ten public meetings
and a public hearing were held during
the public comment period. This rule
responds to comments made at the
public meetings and hearing, as well as
to the written comments received. This
preamble addresses the major
comments raised in the public comment
period. All other comments are
addressed in a document entitled
"Public Comment on Proposed
Guidelines for the Development and
Implementation of State Solid Waste
Management Plans" which may be
obtained at Docket 4002(b), Room 2107.
EPA (WH-564). 401 M St.. S.W.,
Washington. D.C. 20460. The docket is
available for viewing from 9 a.m. to 4
p.m., Monday through Friday, excluding
holidays.
Overview of Subtitle D
The objectives of the Act are to
promote the protection of health and the
environment and to conserve valuable
material and energy resources. In order
to accomplish this, the Act sets forth a
national program to improve solid waste
management including control of
hazardous wastes, resource
conservation, resource recovery, and
establishment of environmentally sound
disposal practices. This is to be carried
out through a cooperative effort among
Federal, State, and substate
governments and private enterprise.
Subtitle D of the Act fosters this
cooperative effort by providing for the
development of State and regional solid
waste management plans that involve
all three levels of government. As the
• Federal partner in this process. EPA
seeks, through guidelines and financial
assistance, to aid State initiatives in the
formulation and implementation of such
plans.
Section 4002(b) of the Act requires the
Administrator to promulgate guidelines
for the development and implementation
of State solid waste management plans
(the guidelines). While these guidelines
are to consider a broad range of topics.
section 4003 identifies the minimum
requirements which State plans must
address. EPA provides financial
assistance to help the States develop
and implement their plans: Under
section 4007, EPA reviews and approves
State plans which satisfy the minimum
requirements of section 4003.
It is clear from the statutory language
and legislative history of subtitle D that
the Congress intended States and
localities to retain overall responsibility
for the planning and actual operation of
solid waste managment programs. (This
is in contrast to subtitle C which directs
EPA to administer and enforce the
hazardous waste program in lieu of
authorized State programs.)
Several commentors raised the
question of whether Federal guidelines
and standards developed under subtitle
D would pre-empt State requirements
concerning solid wastes. The Act does
not specifically address this issue.
However, EPA believes that subtitle D is
meant to encourage, not preclude. State
initiatives. EPA establishes only
"minimum" requirements under this
portion of the Act which should not
prevent States from developing broader
programs or stricter standards under
authority of State law. In discussing the
subtitle D scheme the House Report
(H.R. Rep. No. 94-1491, 94th Cong., 2nd
Sess. 33 (1976)) specifically stated:
It is the Committee's intention thai federal
assistance should be an incentive for stale
and local authorities lo act to%olve the
discarded materials problcm.iAt this time
federal preemption of this pufolcm is
undesirable, inefficient :ind damaging lo local
initiative. '
Therefore EPA concludes lh;it as long
as Federal requirements aifc satisfied by
State programs, subtitle D^oos not limit
State power concerning so|cl waste
management. " |
Role of State Plan
The State solid waste management
. plan is the centerpiece of the subtitle D
system. Through the plan the State
identifies a general strategy for
protecting public health and the
environment from adverse effects
associated with solid waste disposal, for
encouraging resource recovery and
resource conservation, for providing
adequate disposal capacity in the State.
and for dealing with other issues
relevant to solid waste management.
The plan must also set forth the
institutional arrangements that the State
•will use to implement this strategy.
These arrangements include indentifying
State, regional and local responsibilities
for solid waste management, as well as
providing for the establishment of the
regulatory powers needed under State
law to enforce the plan's provisions,
Thus, the State plan is the organizing
mechanism in the subtitle D system
which ties the goals and requirements of
the Act to State priorities and
institutional arrangements.
The other components of the subtitle
D system (the open dump inventory, the
annual work program and Federal
financial assistance) are designed to
support the State plan.
The Open Dump Inventory
Under section 4004(a) of the Act the
Administrator is to promulgate
"regulations containing criteria for
determining which facilities shall be
classified as sanitary landfills and
which shall be classified as open
dumps . . .". The criteria establish the
level of protection necessary to assure
that "no reasonable probability of
adverse effects on health or the
environment" will result from operation
of the site. In setting these criteria EPA
is providing a general definition of
"sanitary landfill" and "open dump".
Under section 4005(b) EPA is to publish
an inventory of open dumps: i.e.. a
listing of those facilities which violate
the criteria. Because the Act does not
give EPA authority to enter private
property to conduct such a survey, and
because the Stales have the prime role
-------
Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations 45067
in the implementation of subtitle D
(including appropriate enforcement
actions), EPA has concluded that the
State should be responsible for
conducting the inventory.
The inventory of "open dumps" •
performs two major functions. First it
informjs the Congress and the public
about ^he extent of the problem
presented by disposal facilities which
do not'adoqu-ilely protect public health
and the environment. Second, it
provides an agenda for action by
identifying a set of problem sites,
routinely used for disposal, which
should be addressed by State solid
waste management plans.
Essentially the inventory is a planning
tool which supports the State planning
effort. The States must know where the
problem facilities are in order to satisfy
section 4003(3) which requires that the
plan "provide for the closing or
upgrading of all existing open dumps
within the State. . .". In order to
accommodate that purpose and to
facilitate prompt compliance with
section 4005(b), EPA has given the
inventory high priority in the State
planning effort.
Annual Work Program.
The annual work program, submitted
with a State's application for financial
assistance under section 4008(a)(l) of
the Act, will provide a basis for
determining whether the State plan
continues to be eligible for approval and
is being implemented by the State. The
annual work program (which is
described in the grant regulations (40
CFR Part 35)] summarizes the current
year's program and sets forth activities
for the coming year. Each year, a State's
priorities and activities should be
examined to ensure that the program is
directed at achieving the desired health,
environmental, and resource
conservation results.
The annual work program represents
a joint agreement between EPA and the
State and presents a mutually
satisfactory statement of reasonable
progress in meeting the requirements of
the Act as expressed in these guidelines.
It represents a State's obligation
incurred by acceptance of finanical
assistance and must be developed in
consultation with local elected officials
and with public participation. As
explained below, the work programs
under the Resource Conservation and
Recovery Act, as amended, the Clean
Water Act. as amended (33 U.S.C. 466 et
seq.), and the Safe Drinking Water Act
(42 U.S.C. 300f et seq.) are being
integrated through the State/EPA
Agreement mechanism.
Financial Assistance
Sections 4008 and 4009 of the Act
provide for financial assistance under
subtitle D (funding of authorized State
hazardous waste regulatory programs is
provided under section 3011 of subtitle C
of the Act). Section 4008 (a)(l)
authorizes financial assistance for the
development and implementation of
State plans. The Act states that for this
purpose, implementation does not
include the acquisition, leasing,
construction or modification of
equipment or facilities, or the
acquisition, leasing, or improvement of
land. Funds appropriated under this
section are to be allotted to the States in
proportion to population and are to be
distributed by States to State and
substate agencies based upon the
responsibilities of the respective parties
for development and implementation of
the State plan.
Section 4006 (a)(2) authorizes
financial assistance to public solid
waste management agencies and
authorities for implementation of
programs to provide solid waste
management, resource recovery and
resource conservation services, and
planning for hazardous waste
management activities. Financial
assistance under section 4008(a)(2) may
only be provided for programs certified
by the State as consistent with the State
or substate solid waste management
plan. This assistance does not cover
construction, equipment or land.
Assistance is authorized for items such
as facility planning and feasibility
studies, consultation, surveys, and
analyses, technology assessments, legal
expenses, construction feasibility
studies, and economic studies. These
grants may be provided either directly
to substate agencies or through the
State.
Section 4008(e) authorizes financial
assistance for improvement, conversion
or construction of disposal facilities in
which more than 75 percent of the solid
waste disposal is from areas outside the
jurisdiction of the community. The Act
limits this assistance to not more than
one community in every State. Section
4009 authorizes grants to certain rural
communities which cannot feasibly be
included in a regional solid waste
management system. Such grants may
be used for construction of solid waste
management facilities which the State
certifies as consistent with the State
plan.
The Act provides no funding for
acquisition of land or for operation or
maintenance of facilities. Funding for
construction of facilities is quite Smiled.
This means that such costs will have to
be borne directly by Slate and substate
governments and by solid waste
generators and facility users. The State
should explore funding sources at all
levels of government and should
consider means of increasing its
financial base through such methods as
user charges.
The Guidelines
Section 4003 of the Act identifies the
minimum requirements for approval of
State plans. Under section 4002(b) the
Administrator is authorized to issue
these Guideb'nes for the Development
and Implementation of State Solid
Waste Management Plans. Section
4002(c) identifies a broad set of
considerations for the guidelines. While
the requirements of section 4003 clearly
fall within the scope of the section
4002(b) guidelines, such guidelines are to
address a range of issues broader than »
those found in section 4003. However,
only the requirements identified in
section 4003 may be the basis for
disapproval of H State plan. They
include:
(1) The identification of the
responsibilities of Stale, local, and
regional authorities in the development
and implementation of the State plan:
(2) The prohibition of new open
dumps, and the requirement that all
solid waste be utilized for resource
recovery or disposed of in an
environmentally sound manner;
(3) The closing or upgrading of
existing open dumps;
(4) The establishment of State
regulatory powers necessary to
implement the State plan;
(5) The elimination of State or local
prohibitions of long-term contracts for
the supply of solid waste to resource
recovery facilities; and
(6) The provision of resource
conservation, resource recovery or
environmentally sound disposal
practices.
£PA believes that the best way to
honor Congressional intent is to draw a
distinction between requirements and
recommendations. Each of the subparts
in the guidelines lists the overall
requirements for plan approval, which
are based upon section 4003 of the Act.
The requirements sections are followed
by a discussion of recommended
procedures, which expand on the
requirements and involve a
consideration of the factors listed in
section 4002(c). The requirements use
the terra "shall". The recommendations.
which are advisory, use the term
"should".
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I
45068 Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations
While failure to comply with a
requirement is grounds for denying a
giant, failure to comply with a
recommendation will not affect grant
eligibility. The recommendations are
ptovided to assist the States in
developing and implementing the State
plan. Any process which complies with
requirements of these guidelines will be
acceptable to EPA for purposes of
approval of the State plan.
The guidelines contain seven subparts
(A-G). Subpart A presents the purpose
and scope of the guidelines and the
State plan. It also contains the
procedures for State adoption and
revision and EPA approval of the State
plan. In addition, important terms are
defined.
Subparts B, C. D, and E discuss.
respectively, (1) the identification of
State, local, and regional
responsibilities. (2) the development of
the State disposal program. (3) the
development of the State resource
conservation and recovery program, and
(4} facility planning and development.
Subpart F discusses coordination with
other programs. The broad definitions of
solid waste and disposal make this
coordination especially important
Subpart F emphasizes coordination with
planning for residuals management
under section 208 of the Clean Water
Act. as amended (33 U.S.C. 1288), with
the National Pollutant Discharge
Elimination System (NPDES) under
section 402 of that Act (33 U.S.C. 1342),
with the surface impoundments
assessment and State underground
injection control program under the Safe
Drinking Water Act (42 U.S.C 300(f) et
seq.), and with State implementation
plans under the Clean Air Act (42 U.S.C.
7401 et seq.).
Subpart G lists the requirements for
public participation in the development
and implementation of State and
substate plans.
Subpart A—Purpose. General
Requirement. Definitions
These guidelines assist in the
development of State solid waste plans.
They include the minimum requirements
for approval of State plans identified in
section 4003 of the Act. They also
address the portion of section 4005(c)
which requires a mechanism in the State
plan to allow "any entity" to protect
itself from citizen suit by obtaining a
compliance schedule which phases out
those acts which violate the prohibition
of open dumping.
Scope of the Slate Plan
These guidelines require the State
plan to address all solid wastes in the
State that pose potential adverse effects
on health or the environment or provide
opportunity for resource conservation or
recovery. The plan should address
residential, commercial, and
institutional solid waste, hazardous.
industrial, mining, and agricultural
waste, waste treatment sludges, septic
tank pumpings, and other pollution
control residues. It should explore the
nature and seventy of these categories
of solid wastes and establish priorities
for their management.
State plans developed under these
guidelines apply to Federal agencies.
Federal lands and facilities on leased
Federal lands in accord with section
6001 of the Act Therefore. States should
consult with appropriate Federal
agencies and facilities during the
development and implementation of the
plan.
The range of activities included in the
plan should be as bread as the Act's
definition of "solid waste management."
Accordingly, the plan should contain
provisions concerning collection, source
separation, storage, transportation.
transfer, processing, treatment and
disposal of solid waste.
Subtitle C of the Act provides for the
authorization of State programs to
regulate hazardous waste management
and for financial assistance for such
programs. Under section 3006 of the Act
EPA will promulgate guidelines to assist
States in the development of hazardous
waste programs. Therefore, the
guidelines proposed in this rulemaking
defer to the section 3008 guidelines for
the requirements for authorized State
hazardous waste regulatory programs.
However, there are a number of
hazardous waste management activities
that are not regulatory in nature and.
thus, not covered by the section 3008
guidelines. Such activities are to be
carried out under the authorities of
subtitle D and are subject to these
guidelines for State plans. In general, the
State plan is to describe how hazardous
wastes will be managed in the Slate.
including identification of
responsibilities for that management
and provision of necessary hazardous
waste treatment, storage, and disposal
facilities.
The proposed subtitle C standards for
generators of hazardous waste (40 CFR
Part 250.29) would exempt persons who
produce and dispose of 100 kilograms or
less a month of hazardous wastes: and,
these wastes could be disposed of in a
facility certified by the State as meeting
the section 4004 criteria. If tli« final
subtitle C standards retain this or a
similar exemption, the Stain should
identify these exempted generators so
that the State may gain control over the
types and amounts of hazardous waste
being disposed of at sny one facility.
These guidelines may be amended to
require certain State actions after the
final subtitle C regulations nre
promulgated.
State Plan Submission. Adoption and
Revision
The plan must be developed in accord
with public participation requirements
discussed in subpart G of these
guidelines. States are to adopt the plans
in accord with State administrative
procedures. In the proposed regulation
EPA invited comment on whether it
should require plan approval by the
Governor or State legislature. The
majority of the comments favored
maintaining the flexibility inherent In
allowing each State to follow its own
State procedures. EPA is satisfied that
as long as the public participation
specified in subpart G is part of the
approval process, the Act's objectives
will be accomplished. Moreover. EPA
believes that allowing such flexibility is
consistent with subtitle D's reliance on
State discretion in solid waste
management planning.
These guidelines require that the State
plan be developed within 18 months,
that it cover a minimum of a five-year
time period, and that it be adopted by
the State. The State is to review the plan
and, where necessary, revise and
readopt it at least every three years.
EPA is to approve or disapprove State
plans and to provide financial
assistance to States if the State plan has
been approved, continues to be eligible
for approval, and is being implemented
by the State.
Several cbmmentors stated that 18
months is inadequate time to develop a
State plan of the broad scope required
by these guidelines. While all required
elements must be addressed in the State
plan, EPA recognizes that certain lower
priority areas will not be described in
great detail in the State's initial plan
submission. Therefore, EPA may
approve a State plan which provides for
time-phasing of activities, and which
proposes less than full development of
State planning and implementation
activities over the five-year period,
providing satisfactory justification is
included in the State plan.
The plan may postpone planning and
implementation activities for certain
waste categories due to the need to
focus resources on higher priority
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Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations 45069
categories. As indicated in 5 256.02 of
the guidelines, the State should
determine which waste categories and
activities have high priority based on
the current level of management
planning and implementation within the
State, the extent of the solid waste
management problem, the known health.
environmental, and economic impacts,
and the resources and management
approaches available. While State
priorities differ. EPA encourages States
to emphasize planning and
implementation activities for those
waste categories with serious
environmental impact and over which
the State may have inadequate control.
such as onsite industrial wastes.
Slate Plan Approval
Under section 4007 of the Act the
Administrator shall approve plans
which meet the requirements of
paragraphs (1) (2) (3) and (5) of section •
4003 and which contain provisions for
revision. The State must revise its plan
if the Administrator revises the
minimum requirements of section 4003,
if the Administrator determines that the
plan is inadequate or if the
Administrator determir.es that "such
revision is otherwise necessary". Notice
and public hearing must accompany
such plan revision. In addition, the
Administrator shall review approved
plans from "time to time" and may
withdraw approval of a plan if he
determines that revision or correction is
necessary "to bring such plan into
compliance with the minimum
requirements promulgated under section
4003 (including new or revised
requirements). . .".
EPA believes that sections 4007 and
4003 envision a scheme in which EPA
grants initial plan approval on the basis
of paragraphs (1) (2) (3) and (5) of
section 4003 but reviews State plans on
the basis of all the minimum
requirements in section 4003. including
paragraphs (4) and (6). This
interpretation allows EPA to honor the
Congressional intent expressed in
section 4007 (that paragraphs 1, 2, 3 and
5 be the basis for initial approval) while
maintaining section 4003's status as the
list of "minimum requirements for
approval of State plans".
This interpretation is a logical one
because both paragraphs (4) and (6)
involve assessments which are best
made after the States have had some
experience with plan implementation.
For example, both EPA and a State will
have a better sense of what regulations
are necessary under State law to
implement the plan, and thus of
compliance with paragraph (4). once the
state has attempted to implement plan
provisions. Also, judicial interpretation
of those efforts may provide insight into
the adequacy of the State's regulatory
scheme. Likewise a determination of
what combination of practices "may be
necessary to use or dispose of such
waste in a manner that is
environmentally sound." as required by
paragraph (6) of section 4003, is best
made after the State plan is in operation
and there has been some experience
with its implementation.
The proposed guidelines requested
comment on the State/EPA Agreement
concept. Under such an agreement, State
work program submissions for various
environmental programs would be
integrated in an attempt to determine
environmental priorities and develop
effective and efficient solutions to
environmental problems. Half of the
commentors to these proposed
guidelines opposed the State/EPA
Agreement concept. The rest were
divided between qualified and
unqualified support. Some States were
concerned that their existing
institutional arrangements would make
it difficult to integrate work programs;
others were concerned that solid waste
programs would lose visibility and
possibly funding if combined with larger
and better established programs.
In response to these and other
comments, EPA Issued a guidance
document on March 21,1979 (44 FR
17294) for State/EPA Agreements. The
guidance does not require integrated
work programs, nor does it intend to
force reorganization and consolidation
of Slate agency structures or changes to
existing grantor-grantee relationships.
The State/EPA Agreement process,
however, is designed to bring together
Federal, State and local entities to
determine environmental priorities,
define intermedia problems and develop
creative, efficient and effective
solutions. Integrated work programs are
encouraged where feasible.
Beginning in fiscal year 1980. the
State/EPA Agreement will present a
practical and comprehensive mechanism
by which the States and EPA can
integrate and manage the technical and
financial assistance programs 1o Slates
under the Resource Conservation and
Recovery Act, as amended, the Clean
Water Act, as amended (33 U.S.C. 1251
et seq.), and the Safe Drinking Water
Act (42 U.S.C. § 300f et seq.). States are
encouraged to integrate other
environmental programs into the State/
EPA Agreement if possible.
Definitions.
The guidelines define certain key
terms including "criteria," "facility."
"implementation," "inactive facility,"
"inventory of open dumps." "operator,"
"permit." "planning," "provide for" and
"substale." Commentors raised
questions concerning the following
definitions:
1. Planning. Some commentors snid
that there was a need to clearly
distinguish between planning and
implementation. Planning is defined in
these guidelines as the process of
"identifying problems, defining
objectives, collecting information,
analyzing alternatives, and determining
the necessary activities and courses of
action." This includes analysis of solid
waste generation rates and assessment
of the adequacy of existing resource
recovery and disposal facilities and the
need for new or expanded facilities. It
also includes setting priorities for the
management of different wastes.
identifying responsibilities, developing
the necessary legislation and
administrative powers to implement the
plan, and planning for State resource
conservation, recovery, and disposal
programs.
2. Implementation. Implementation is
defined in these guidelines as "putting
the plan into practice by carrying out
planned activities or ensuring such .
activities are carried out" One aspect of
implementation is carrying out the
necessary regulatory activities to ensure
that solid wastes are managed and
disposed of in a manner that protects
the public health and the environment.
This includes applying health or
environmental standards to facilities,
assessing and inspecting facilities.
conducting a permit or registration
program, and carrying out the necessary
enforcement activities.
3. Inactive Facility. An "inactive
facility" is one which no longer accepts
waste. This definition was not contained
in the proposed regulation. It is included
in this final regulation because some
commentors were confused about the
terms "closed facility" and "abandoned
facility" in the proposed regulation.
Those terms are no longer included in
the guidelines.
These guidelines no longer treat
"closed facility" as a term of art th;it
means a properly closed facility. An
operator may close a facility properly or
improperly, but this does not change the
fact that such a facility is closed. The
operator's liability, if any, is based on
his failure to close a facility in accord
with environmental standards
developed pursuant to the State pl.-in.
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45070 • Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations
The term "abandoned facility" has been
dropped because it connotes the non-
existence of a human agent responsible
for the site. The concern over the
environmental impact of so-called
"abandoned" facilities is the same
whether or not a party is available who
may be legally liable for the damage.
The concern is that a site which no
longer receives wastes is creating an
environmental problem due to such
ongoing effects as the leaching of
contaminants into groundwater.
Therefore EPA addresses itself here to
the broader set of "inactive" sites which
may or may not be abandoned. This
preamble discusses the relationship of •
the guidelines to inactive facilities in
more detail later.
Subpart B—Identification of
Responsibilities; Distribution of Funding
The guidelines require that the State
plans identify the responsibilities of
States and substate agencies to satisfy
the requirement in section 4003(1). EPA
believes that this allocation of
responsibilities must be a matter for the
State to work out with the other general
and special purpose governments in the
State. EPA does not attempt to stipulate
any particular institutional arrangement
because there will necessarily be
circumstances where differing schemes
are more appropriate.
State agencies will be responsible for
planning activities. However, substate
agencies may need to conduct specific
types of planning concerning the number
and kinds of facilities needed in
particular areas and the different
institutions needed (e.g.. solid waste
authorities or districts) for managing
solid wastes. Substate planning may
also be necessary for establishing
coordinating management of different
waste streams (e.g.. coindneration of
residential solid waste and municipal
sewage sludge) or for establishing
disposal or recovery facilities for new
waste streams (e.g., industrial
pretreatment residues).
Likewise there will be a need under
the plan for developing health or
environmental standards for facilities,
assessing and inspecting facilities,
conducting a permit or registration
program, and carrying out the necessary
enforcement activities. For the most
part, such programs have been
conducted by State agencies, although
certain responsibilities (such as
inspections] may be delegated to local
public health agencies.
EPA's major concern in the process of
allocating responsibility is that the
institutional arrangement devised by the
State aid the achievement of the
substantive goals of the Act.
Subpart C—Solid Waste Disposal
Programs
This subpart addresses the
requirements contained in sections
4003(2) and 4003(3) of the Act. Under
section 4003(2) the plan is to prohibit the
establishment of new open dumps in the
State and contain requirements that all
solid waste be utilized for resource
recovery, disposed of in sanitary
landfills or otherwise disposed of in an
environmentally sound manner. Under
section 4003(3) the plan is to provide for
. the closing or upgrading of all existing
open dumps within the State. The
subpart has four general sets of
requirements: (1) those affecting overall
legal authority; (2) those involving
regulatory powers; (3) those concerning
closure or upgrading of existing open
dumps; and (4) those involving
compliance schedules for complying
•with the prohibition of open dumping.
Legal Authority and Regulatory Powers
Under section 4003(4) the plan shall
provide for the establishment of State
regulatory powers as may be necessary
to implement the plan. As discussed
earlier this provision is not a basis,
under section 4007, for initial approval
of a State plan but rather is relevant to
later review of progress under the plan.
The States must make a reasonable
effort to develop the powers necessary
for plan implementation in order to
remain eligible for Federal funding.
Although the proposed version of the
guidelines did not distinguish between
regulatory powers and legal authority.
EPA has decided to make this
distinction to give meaning to the
distinction made in section 4007
between the requirements of sections
4003 (2) or (3) and those of section
4003(4). EPA believes that section 4007
.contemplates a scheme that would allow
a State with a general statutory or
common law authority to take action
against new or existing open dumps to
have an approved State plan while it
developed the companion-regulatory
mechansims necessary to fully
implement the plan. At the same time
EPA does not believe that a State which
does not have legal authority (according
to statute or common law) to take action
against disposal facilities for the general
categories of environmental effects
covered by the criteria can be in
compliance with sections 4003 (2) and
(3) of the Act Therefore, EPA requires in
these guidelines that the States have
adequate legal authority to prohibit new
open dumps and close or upgrade all
existing open dumps. States will be
allowed to develop regulations and
administrative systems to implement
that general authority after initial
approval of the State plan. However the
failure to provide for the establishment
of State regulatory powers, as outlined
in § 256.21, could constitute
noncompliance with section 4003(4) and
thus be the basis for withdrawal of
approval for a State plan.
In the proposed guidelines EPA
suggested that the States could wait
until after approval of the State plan to
prohibit establishment of new open
dumps. The language of the Act.
particularly that found in section
4004(c), does not allow for such
flexibility. Therefore, EPA has changed
that requirement to be consistent with
the Act's intent The prohibition of the
establishment of new open dumps shall
take effect no later than six'months after
the date of promulgation of the criteria
or on the date of approval of the State
plan, whichever is later.
In establishing legal authority the
States must include some type of
permitting mechanism to ensure that the
establishment of new open dumps is
prohibited. Some commenters expressed
concern that EPA's concept of a permit
was too narrow and beyond the
authority of subtitle D. EPA meant to
give a broad interpretation of that term
and the guidelines define permit to
reflect that broader concept EPA
believes that effective regulations must
include a mechanism for translating
generally applicable standards into
specific requirements for individual
facilities. Some kind of a certificate of
permission issued to particular parties is
the best means of achieving that end.
Such a certificate also performs an
important informational role because it
provides a clear statement of the terms
to which parties will be held. This is
certainly advantageous to the permittee.
but it also gives EPA. the State and the
public information on how this part of
the solid waste management plan is
being implemented.
As long as the States can devise a
scheme that achieves these goals. EPA
will be flexible on what constitutes a
permit With this flexibility, there can be
little doubt that such a permit
requirement is within the Act's purview.
A State program that does not have the
capacity to translate generally
applicable standards into site specific
requirements or to adequately inform
interested parties of those requirements
cannot provide adequate assurance that
the Act's objective will be met.
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Federal Register / Vol. 44. No. 148 / Tuesday, July 31..1979 / Rules and Regulations : 45071
Closure or Upgrading of Existing Open
Dumps
The Guidelines require the State to
classify existing solid waste disposal
facilities according to the criteria. The
State is to establish priorities for the
classification effort after considering
potential health and environmental
impact of facilities, the availability of
regulatory powers to address the
problems presented by these facilities
and the availability of financial
resources in the State solid waste
management program. The State
submits a list of the facilities that fail to
satisfy the criteria to EPA for
publication in the Federal Register. The
States are to take steps to dose or
upgrade open dumps.
1. The Open Dump Inventory. One of
the principal issues concerning State
solid waste management planning is the
role of the inventory of open dumps in
subtitle D. EPA has received many
inquiries and comments concerning the
inventory, particularly on the issue of
whether notice and a hearing must
precede inclusion of a facility in the
inventory published in the Federal
Register. The "notice and hearing" issue,
however, is merely part of a broader
question concerning the purpose of the
inventory in the program contemplated
by the Act. The issue is whether
inclusion of a facility in the inventory
constitutes a determination that an
identifiable party is engaging in the
prohibited act of open dumping.
After considering public comment on
this issue and after further analysis of
the issue. EPA has concluded that the
Act intended the inventory to be a
planning tool which provides
information to the States and the public.
The act of listing does not constitute a
legal determination which subjects a
particular party to legal sanctions for
violation of the Act
EPA reached this conclusion after
substantial public discussion of the
issue. Early in the development of these
guidelines EPA indicated that the States
would conduct the inventory as part of
their solid waste management planning,
and many of the comments on the
guidelines addressed the role of he
inventory. On April 24,1979, the
National Solid Wastes Management
Association (NSWMA) petitioned EPA,
seeking regulations providing a notice
and hearing opportunity prior to a
facility's inclusion in the inventory list
Since the inventory would be part of the
State planning effort, NSWMA's petition
directly affected the content of these
guidelines. In fact, the relief NSWMA
sought would logically be a part of these
guidelines. At the same lime EPA was
under court order from the U.S. District
Court for the District of Columbia to
promulgate these Guidelines by June 30.
1979. In order to air the notice and
hearing issue and still make a
reasonable effort to comply with that
court order, EPA issued on May 15.1979.
a Supplemental Notice of Proposed
Rulemaking (44 FR 28344) which invited
public comment for 30 days on whether
the guidelines should require notice and
a hearing opportunity before a disposal
facility is included in the inventory. The
Notice explained EPA's tentative
conclusion on the issue and included a
copy of the NSWMA petition.
Several commentors argued that
EPA's position on this issue, as stated in
the Notice, differed from previous EPA
statements about the inventory. EPA
had a different view of the inventory
when these guidelines were at an earlier
stage of development. After further
analysis of the Act. however, EPA
changed its view. In issuing the
Supplemental Notice. EPA sought to
alleviate any confusion resulting from
this reassessment of the issue and to
provide the public with an opportunity
to focus on the inventory's role.
The fact that EPA's interpretation of
the Act. as set forth in this final
regulation, differs from the viewpoints
expressed in the proposal and in
statements by Agency personnel does
. not undermine the legitimacy of that
interpretation. EPA is not bound to legal
interpretations advanced in earlier
stages of a regulation's development
The role of the inventory in the subtitle
D program is a complicated issue which
necessarily involves an analysis of
several parts of the Act To hold the
Agency to early viewpoints on such
complex questions hinders responsible
decision making and discourages the
Agency from engaging in open public
discussion on these matters. Ultimately,
questions surrounding the role of the
open dump inventory must be resolved
after a substantive analysis of the Act
its legislative history and other
applicable Federal law.
Under section 4005(b) EPA is required
to publish an inventory of "open dumps"
. (those facilities which do not satisify the
criteria promulgated under section 4004).
Section 4005(c] prohibits "any solid
waste management practice or disposal
of solid waste or hazardous waste
which constitutes the open dumping of
solid waste or hazardous waste." The
essential problem presented by the Act
is to determine the relationship between
these two provisions. The task is
complicated by the fact that sections
4005(b) and 4005(c) originated in ,
differing House and Senate bills and
that there is no conference report to
resolve the problem presented by these
incongruous provisions.
In the effort to reconcile the
differences between the Senate and
House approaches to this issue. EPA
sought an interpretation of the Act that
retained as much of the original intent of
the two bills as possible. In doing so
EPA believes that it has devised a sound
program that best achieves the overrul
objectives of the Act.
The inventory of open dumps was
part of the House bill which relied
totally on the Slates to regulaie the
problems associated with these
facilities. The inventory was designed to
be an informational tool that would give
a comprehensive picture, based on a
uniform definition of unacceptable
environmental effects, of the problem
presented by these "open dumps". This
list was also to aid the States in
directing their efforts for the closing and
upgrading of existing open dumps.
The Act indicates that Congress
meant to maintain the inventory's status
as an informational tool and not as a
regulatory mechanism. For example.
there is no requirement for a "hearing on
the record" or a public hearing in
conjunction with the inventory.
Likewise, the Congress required
publication within one year of
promulgation of the criteria. Knowing
that the volume of problem sites could
run into the thousands, it is doubtful that
the Congress could have envisioned the
inventory as a series of individual
adjudications with all the attendant
delays involved in preparing and
documenting every part of the case.
Also, the Congress could not have
viewed the inventory as anything but
informational in terms of EPA's
involvement. The Act does not give EPA
the authority to enter on private
property to take samples or to require
reporting on the facility's environmental
effects. The absence of these necessities
of a viable regulatory program indicates
that the inventory can only be an
informational tool (The absence of EPA
authority to conduct a proper inventory
evaluation of facilities also suggests that
the States must conduct the evaluations
under authority of State law.)
The Senate bill prohibited the act of
open dumping and allowed for Federal,
State and citizen enforcement of that
prohibition. There was no facility
classification scheme. In the final
version of the Act, the Federal
enforcement provision was deleted, but
States and the public were allowed to
use the citizen suit provision (section
7003) to enforce the prohibition. In
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45072. • Federal Register / Vol. 44. No. 143 / Tuesday; July 31. 1979 / Rules and Regulations
prohibiting open dumping the Act does
not specify who shall be deemed
responsible. The legal liability of
particular individuals is a matter for the
courts to resolve on a case by case
basis.
EPA does not believe that the
inventory was designed to implement
the prohibition of open dumping. Certain
flaws in statutory interpretation and
basic logic appear in any attempt to link
the two provisions. For example, section
4005(c) requires each State plan to
assure that all open dumps listed in the
inventory "comply with such measures
as may be promulgated by the
Administrator to eliminate health
hazards and minimize potential health
hazards". As section 1002(b)(4)
indicates, the Act is concerned with
environmental as well as health effects
in prohibiting open dumping..Section
4005(c) also requires State plans to
provide a mechanism for giving
compliance schedules to parties engaged
in open dumping. Such schedules are to
lead to "compliance with the prohibition
on open dumping" and are only
available to entities which have no
other "private or public alternative" to
open dumping.
If inclusion on the inventory of open
dumps also constitutes a determination
of liability for open dumping, it is
unclear which steps follow listing. Is the
State to focus on the present or potential
health hazards associated with the
facility, or is it to address the full range
of health and environmental concerns
implicit in the open dumping concept?
Also, is trie State required to examine
"public or private alternatives" for all
listed facilities? Since the Act creates
two differing approaches to handling
listed open dumps and entities which
could violate the open dumping
prohibition, EPA believes that the
dichotomy between the Senate and
House approaches to the solid waste
ma'nagment program should be
maintained.
EPA's interpretation avoids the
conceptual problems involved in using
the inventory to implemenl the open
dumping ben. Fundamental to any
determination of legal liability for an
offense is a clear definition of who is
responsible and of the acts which
constitute the offense. The inventory is
not well-suited to establishing either of
those. In conducting the inventor}', site
inspectors will be evaluating the
environmental impact of particular sites
on particular days. They will not be
investigating the relative responsibilities
of the various parties involved in
disposal activity (e.g. facility owner,
facility operator, parent companies.
users of the facility). Likewise.
inspectors will not be focusing on the
particular acts which lead to the
environmental damage (e.g. facility
selection, design, and management: the
' bringing of particular wastes to the
facility). Moreover, the inventory is not
well-suited to defining the duration of a
violation. The inventory is. after all. a
picture of conditions at the facility at a
particular time. The inventory does not
in itself determine whether those
conditions are due to ongoing practices
at the facility or are the result of
temporary problems at the time the
evaluation occurred. Thus the inventor}'
is not designed to establish several of
the key elements necessary for placing
legal liability on responsible parties and
should not, therefore, be treated as an
EPA determination that particular
parties are open dumping.
An interpretation of the Act linking
the inventory to the open dumping
prohibition undermines the Act's
objective of leaving principal
responsibility for implementing solid
waste management programs to the
States. The language of subtitle D and
its supporting legislative history clearly
indicate that the Federal Government
was to facilitate the development of
State initiatives in this area. The
removal of the Senate provisions for
Federal enforcement of the open
dumping prohibition in the final version
of the Act underscores this point. Were
EPA's publication of the inventory to
constitute an Agency decision that each
listed site is in violation of Federal law,
EPA would be heavily involved in the
administration of solid waste programs.
' EPA would have to carefully supervise
the States in the conduct of the
inventory. Were EPA to be ultimately
responsible for the decision to list, it
would have to carefully review State
decision making, overruling decisions
where appropriate. EPA does not
believe that the Congress intended that
EPA have such a central role in State
solid waste management.
EPA concludes, therefore, that the
inventory was not designed to be a
decision on the open dumping issue. The
inventory is an adjunct to the State
planning process. It provides
information to the public and helps the
States in identifying their priorities. In
publishing the inventory EPA is
reporting on the first phase of the State
planning effort and thus will include all
facilities identified by the State. EPA
will not add or remove facilities from
the inventory. The open dumping
prohibition is a provision of Federal law
which stands on its own, separate from
the State planning program. In
conjunction with the citizen suit
provision, the open dumping prohibition
creates a Federal cause of action
allowing/citizens and Slates to seek
relief in Federal Court for damaging
solid waste management practices.
Information generated during the
inventory could be available to parties
seeking to bring an open dumping
action. That data would be made
available in accord with applicable
Federal and State law concerning the
release of such information. Questions
concerning the admissibility and weight
of the information as evidence are for
the courts to resolve. The ultimate issue
of whether particular parties are guilty
of open dumping would be for the court
to decide after de novo review of the
particular facts in each case. The point.
however, is that while data generated in
the inventory may be evidence relevant
to an open dumping suit, the act of
listing a site does not constitute an EPA
decision on the open dumping issue
which deserves judicial deference as a
matter of law.
The public comments on the inventory
suggested varying interpretations of the
inventory. Some called it a rule; others
called it a series of adjudications. A few
commentors argued that the inventory
was part of a de facto licensing program
that implied permission to operate for
those facilities not included on the list.
None of these characterizations are
appropriate because they imply that
EPA has decided something concerning
the facility. The inventory is only an
informational tool. It does not
adjudicate the rights of any persons or
provide official approval for facilities
not included. Likewise it is not a rule
setting EPA policy, but rather is a tool to
aid the States in defining their own
priorities.
2. Notice and Hearing Implications of
the Inventory. The Supplemental Notice
of Proposed Rulemaking focused public
attention on the question of whether
notice and a hearing opportunity must
accompany the inventory of open
dumps. The NSWMA petition, which
was incorporated into the Supplemental
Notice, argued that a notice and hearing
opportunity was required by the Act, the
Administrative Procedures Act and the
U.S. Constitution. The Act does not
require hearing proceedings for the
inventor}'. No hearing or notice
requirement is found in section 4005(b).
Some commentors argued that section
7004(b) requires public participation
before publication of the inventory.
These guidelines provide for public
participation at several key stages in the
State planning process, including review
of the plan's priorities for conducting the
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Federal Register / Vol. 44. No. 148 / Tuesday, July 31. 1979 / Rules and Regulations
45073
facility classifications. Those
requirements provide an ample
opportunity for public input on ibis
aspect of the subtitle D program without
direct public participation in the
inventory list. .
An added round of public
participation on the inventory is
particularly inappropriate because EPA
wii! not be rendering a decision. In
publishing the list EPA is merely
reporting to the public on the progress of
one important phase of the State
planning program. Some commentors
challenged this interpretation of EPA's
role arguing that conduct of the
inventory was EPA's responsibility and
that the States are merely acting as
EPA's agents in carrying out the
inventory. EPA rejects this view. Section
4005(b) only requires EPA io publish the
inventory. More importantly, the Act
does not give EPA authority to enter
private property to evaluate facilities for
possible inclusion in the inventory.
EPA's obvious lack of necessary
authority, coupled with subtitle D's clear
reliance on State initiatives for
implementation functions, leads EPA to
conclude that the inventory should be
handled by the States.
In considering the applicability of the
Administrative Procedures Act (APA) (5
U.S.C. 51 et seq.), several commentors
.argued that the inventory was an
adjudication. licensing or rulemaking
proceeding for purposes of the APA.
After analyzing these comments EPA
concluded that none of these
characterizations properly describes the
inventory. As discussed earlier the
inventory is only an informational tool;
and, therefore, its publication in the
Federal Register is not the kind of
agency action meant to be covered by
the Administrative Procedures Act's
notice and hearing provisions.
Several commentors argued that
publication of the inventory without a
formal notice and hearing opportunity
constituted a denial of property without
due process of law, violating the Fifth
Amendment of the Constitution. EPA
certainly does not seek to deny the due
process rights of individuals in
performing its part of the subtitle 0
program. It must be recognized.
however, that not every government
action which may affect an individual's
property interests requires formal notice
and hearing procedures. Generally some
legal sanctions must be brought to bear
on an individual before the due process
right arises.
The issue in considering subtitle D's
implications for due process rights is not
a question of whether those rights exit
at all, but rather when those rights are
properly invoked. Individuals involved
in solid waste disposal will have an
opportunity to be heard before
government sanctions are permanently
imposed. As indicated earlier, however,
the inventory is not an EPA
determination resulting in legal
sanctions. By including a site on the
inventory. EPA has not ordered any
identifiable individuals to do anything.
Several of the key questions for legal
liability—namely who is responsible for
which acts—are not necessarily
resolved by the inventory process.
Under these circumstances it would be
premature to hold a hearing because it is
unclear who has the right to a hearing
and what the accusations are. Once
States have completed further
investigations and are ready to direct
their enforcement efforts at particular
actions by particular individuals, the
people in question will have an
opportunity to be heard in either an
administrative or judicial forum. States
will be bound under their own laws and
the U.S. Constitution to assure that there
will be no denial of property without
due process of law. Several comments
from States showed an awareness of
that obligation and indicated that
existing State procedures would require
various opportunities to be heard prior
to the imposition of sanctions.
In arguing for a notice and hearing
opportunity prior to publication of the
inventory, commentors identified a
variety of bases for that right Some saw
the right growing out of the link between
the inventory and the open dumping
prohibition. As indicated previously,
there is no such link and therefore no
such hearing right
Others argued that the bad publicity
associated with a facility's inclusion on
the list would unfairly affect the
operator's business. In particular.
commentors noted that the inventory
would encourage citizen actions
(including suits brought under'the Act)
or responses by local governments
which could interfere with the continued
operation of listed sites.
It is not clear that the inventor}' will
result in unfair criticism. In publishing
the inventory, EPA will make every
effort to clarify the status of the
inventory as an informational exercise
which does not imply legal liability on
the part of any particular party. Such
clarification may need to be given on a
State by State basis in order to reflect
the way the inventory is being used by
each State solid waste program.
EPA cannot completely eliminate the
possibility that some parties will
improperly characterize the meaning of
the inventory. EPA will, however, assure
that the inventory clearly states the
purpose, basis and significance of Ihe
information provided. Parties affected
by bad publicity will have an
opportunity, in an administrative or
judicial forum, to present their case prior
to the imposition of legal sanctions
against them.
Several commentors expressed
particular concern that the inventory
would lead to citizen suits against listed
facilities. Under some circumstances
inclusion of a facility on the inventory
may increase the likelihood that some
party may sue some other party
concerning conditions at the facility. In
marginally increasing the chances of
suit however. EPA is not denying
property without due process of law. A
civil suit in Federal court is hardly a
summary proceeding in which the
defendant has little opportunity to be
heard. In fact the judicial forum
probably affords the ultimate in due
process of law.
Some commentors suggested that
inclusion on the inventory was a
prerequisite to the establishment of legal
liability for open dumping. That
conclusion reflects a misunderstanding
of the Act Citizen suits against acts of
open dumping may be initiated
regardless of the inventory process.
Only a compliance schedule issued to
specific parties, as contemplated by
section 4005(c), insulates these parties
from suit
At least one commentor suggested
that a citizen suit is just one of several
"hindrances" to the solid waste
industry, and that EPA should not be
providing information that encourages
such suits until the facility operator has
had a formal notice and hearing
opportunity. While some people may
' attempt to abuse the legal system, EPA
does not believe that citizen suits are
merely hindrances to the industry.
Citizen suits may be legitimate
expressions of genuine public concern
that seek relief for actions that seriously
threaten public health and the
environment. Such suits will provide all
parties, including those accused of open
dumping, their day in court.
This leads to a general point about the
notice and comment issue which should ,
not be ignored. While EPA does not seek
to deny legitimate due process rights.
there is a countervailing interest that
must be considered—the public's right
to be informed of the dangers to their
health and environment The Act
intended the open dump inventory to
inform the public about the dangers
associated with various disposal
facilities. This would allow the public
and the States to take protective action.
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45074 Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations
An enforcement action against
responsible parties would be only one of
several available option^.
Since the Inventor}' is not an
accusation of wrongdoing against
specific parties and since notice and
hearing opportunities will precede the
imposition of legal sanctions. EPA
believes that it is inconsistent with the
Act and contrary to the public interest
to withhold this information from the
public.
EPA's interpretation of the inventory
means that it is up to the States to
assure protection of the due process
rights of parties affected by State
regulatory activities. Several State
agencies indicated that various formal
or informal procedures for receiving
comments (including hearing
opportunities] would be conducted in
conjunction with the inventory as a
matter of State law. EPA approves of
those efforts.
EPA does not believe, however, that it
should be requiring the States to inform
any particular parties according to any
particular procedures. There are many
different ways to assure that the system
is not unfair to affected parties, and EPA
believes that the States should be
allowed to fashion a response
appropriate to the circumstances. If EPA
attempted to impose particular "notice"
requirements, it might be unnecessarily
Intruding in matters of State law. For
example, inclusion of a facility on the
list does not establish the legal liability.
of any particular person as a matter of
Federal law. Therefore, it is impossible
to determine under the Act who is the
appropriate recipient of notice.
However, depending on the use of the
inventory under State law, there may be
clear legal requirements for who shall
receive notice.
In order to avoid this potential
problem EPA has removed any
reference to notice and comment
procedures in the requirements of
subpart C. However, to indicate EPA's
general preference for full disclosure of
inventory information the guidelines
recommend in subpart G that the States
inform all affected parties of site
classification results.
In response to the Supplemental
Notice, EPA received comments
supporting and opposing EPA's general
position. Several commentors expressed
concern that the interpretation
suggested by NSWMA would increase
administrative expenditures per facility
and greatly reduce the number of
facilities that could be evaluated with
the limited funding available under
subtitle D.
Such an outcome is possible and
would be incompatible with
Congressional intent that the inventory
be completed promptly. This suggests
. that EPA's interpretation, which avoids
the need for hearings while respecting
individual rights, best accords with
Congressional intent.
3. Closure or Upgrading Procedures.
Section 4003(3) requires the plan to
provide for the closing or upgrading of
all existing open dumps. States may
achieve this through a variety of
mechanisms (e.g., permits,
' administrative orders, general
.. regulations). Establishment of
compliance schedules for each facility
may be the best mechanism to achieve
compliance with section 4003(3), but
EPA does .not wish to exclude the use of
other approaches as long as the State
can show that some effective action will
be taken to close or upgrade open
dumps.
The plan must, however, provide
some means for assuring EPA and the
public that steps are being taken to deal
with the problem presented by existing
open dumps. The guidelines, therefore,
require that the plan reference some
evidence that steps have or are being
taken to close or upgrade each facility.
By "evidence" EPA does not imply that
the States must have a document, legally
admissible in court, for each facility on
the inventory. EPA is merely seeking
documentation which indicates that
some steps have been or are being taken
to eliminate the problems associated
with each site. Evidence of action could
include an administrative order, a
permit, or even a report on the site
which indicates that problems identified
during the inventory have been
remedied.
. 4. Inactive Facilities. The proposed
guidelines required that inactive
disposal facilities (referred to as
"abandoned facilities" in the proposed
guidelines) which continue to produce
adverse health or environmental effects
be subject to classification according to
the criteria and publication in the open
dump inventory. Most commentors
agreed that inactive disposal facilities
can and do cause severe adverse health
and environmental problems and that
these facilities should not be ignored. A
number of commentors. however,
questioned EPA's authority to require
State plans, to include such facilities in
the open dump inventory process. They
were also concerned about what
enforcement action the State might
reasonably take, especially where a
facility has been abandoned or
ownership has been transferred or
relinquished, and legal liability and
financial responsibility are difficult to
establish.
It is important to note thai since (hese
guidelines were proposed, there has
been an influx of reports of inactive
sites posing substantial endangerment to
public health and the environment. It is.
therefore, incumbent upon the States to
learn as much about problem sites in
their jurisdictions as possible. The
guidelines recommend that inactive
facilities be evaluated for current or
potential problems and that the State
take steps to minimize or eliminate
adverse health or environmental effects.
particularly in emergency situations. If
corrective actions by facility owners or
operators cannot be brought about.
public agencies should take the
necessary measures to protect public
health and safety. This should include.
as a minimum, notification of adjacent
residents and other affected parties of
the potential-health or environmental
hazards.
EPA recognizes that there is some
question about whether the
environmental problems associated with
inactive facilities fall within the scope of
"disposal" as defined in the Act Section
1004(3) defines disposal as "the
discharge, deposit, injection, dumping,
spilling, leaking, or placing of any solid
waste or hazardous waste into or on any
land or waters so that such solid waste
or hazardous waste or any constituent
thereof may enter the environment or be
emitted into the air or discharged into
any waters, including ground water".
Taken literally this definition could
encompass some aspects of pollution
found at inactive facilities.
A second crucial question, however, is
whether the particular regulatory
programs created by the Act can be
meaningfully applied to inactive sites.
The hazardous waste program, under
Subtitle C of the Act calls for the
issuance of permits (setting performance
standards and operational controls) to
owners and operators of facilities for the
disposal of hazardous waste. Such a
scheme is inappropriate for inactive
facilities and, therefore, EPA has
concluded that Subtitle C does not apply
to inactive facilities.
In examining the open dump inventory
under subtitle D, a slightly different
problem arises. There is no reason to
avoid collecting information on inactive
facilities as it could be useful in the
development of the State plan. At the
same time EPA recognizes that inactive
facilities present unique management
problems that will require different
kinds of responses by the States. Thus
the plan may not be able to establish
routine procedures for the closing and
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upgrading of such facilities in the same
way that such procedures will be
possible for active facilities.
EPA has decided that there is no basis
' to exclude all inactive facilities from the
scope of the open dump inventory. Yet
EPA also believes that active facilities
were intended to be the focus of the
subtitle D program. The question of how
the inventory addresses inactive
facilities is one to be resolved in the
establishment of State priorities for the
inventory. In negotiating this question
EPA and the State will be able to
consider the magnitude of the
environmental problem presented by
inactive facilities and the Slate's ability
to close or upgrade such facilities.
In writing the Guidelines EPA has
included a specific set of.
recommendations on inactive facilities
that should be part of the State plan. In
applying the Guidelines' requirements
for the inventory to inactive facilities,
EPA recognizes that the meaning of
"closing or upgrading open dumps" may
have to be flexible to accommodate the
unique problems involved in addressing
inactive facilities.
The agency may use Section 7003
(Imminent Hazard) of the Act to bring
suit against inactive facilities which
pose human health and environment
problems. This section is designed to
prevent any imminent and substantial
endangerment to human health or the
environment from the improper disposal
of solid waste. Under this procedure, the
Agency can seek whatever remedy may
be necessary to control the problem.
Compliance Schedules Affecting the
Prohibition of Open Dumping
Section 4005(c) requires the plan to
provide for compliance schedules for
each entity that can show that it has no
"public or private alternatives for solid
waste management to comply with the
prohibition on open dumping". The
compliance schedule is to set forth "an
enforceable sequence of actions or
operations, leading to compliance with
the prohibition on open dumping within
a reasonable time". The meaning of
reasonable time is a matter for the State
to decide, but no compliance schedule
may allow open dumping to continue
five years beyond publication of the
inventory. By that time, the proper
implementation of the plan should
assure that adequate, environmentally
acceptable disposal capacity is
available in the State.
In determining whether other "public
or private alternatives" exist the States
should examine a range of factors
concerning the State's overall solid
waste management problem. EPA
recommends that the State consider the
availability of processing and disposal
at other facilities, cost constraints,
existing contractual agreements, the
likelihood of incremental environmental
damage and other pertinent factors. A
compliance schedule for owners and
operators of facilities may involve steps
to close or upgrade the facility.
Upgrading is, however, the objective of
the compliance schedule and not a
"public or private alternative" for
purposes of determining whether a
compliance schedule is justified.
It should be made clear that the type
of compliance schedule contemplated by
section 4005(c). which includes an
examination of public or private
alternatives, is the only kind of
compliance schedule that protects a
party from the open dumping
prohibition. The section 4005(c)
compliance schedule is issued to
particular parties, not sites. It can be
issued to operators of disposal facilities
but could also be issued to those parties
that generate or transport wastes. The
section 400S(c) compliance schedule
may be coordinated with any schedule
for closing or upgrading of a facility
developed to comply with section
4003(3). Only those individuals bound by
the compliance schedule, however, may
be insulated from an open dumping
action.
Subpart D—Resource Conservation and
Recovery
One of the major objectives of the Act
is to encourage resource recovery and
resource conservation. As defined in the
Act. resource recovery is the recovery of
material and energy from solid xvaste,
while resource conservation includes
the reduction of the amounts of solid
waste that are generated, the reduction
of overall resource consumption and the
utilization of recovered resources.
These guidelines establish several
requirements for State plans to achieve
this objective. The guidelines require the
State plan to provide for the
development of a policy and strategy to
encourage resource recovery and
resource conservation. This strategy
should focus on removing existing
technical, economic, and institutional
constraints that impede increased
resource recovery and conservation.
State activities in this area could include
technical assistance, training,
information development and
dissemination, financial support
programs, and programs to develop
markets for recovered materials and
energy.
Several commentors suggested that
the guidelines provide more detailed
advice on the elements of a State
strategy and on methods to implement
this strategy. Such advice can be found
in "Developing a State Resource
Conservaton and Recovery Program." a
guidance document available from EPA.
The Act and these guidelines require
Slate plans to ensure that local
governments are not prohibited under
State or local law from entering into
long-term contracts for supplying solid
waste to resource recovery facilities.
This requirement reflects the concern
that the development of resource
recovery facilities has been hindered by
not having a guaranteed long-term
supply of solid waste. The guidelines
recommend that the State plan provide
for State agency review of pertinent
State and local statutes, and for the
development of a strategy for
eliminating the long-term contracting
restrictions on the supply of waste to
resource recovery facilities.
Several States raised concerns about
their ability to comply with this
requirement They cited State
constitutional provisions for home rule
as restricting their influence on local
laws of this type. It is recognized that
States and State agencies may have
limited ability to modify local
procurement laws. The guidelines"
contain a recommended procedure for
the State to pursue, in conjunction with
local governments, to change local laws
violating this requirement The Act
envisions a cooperative State-local
effort in meeting its goals, within the
framework of the State constitution and
laws.
One commentor pointed out that long-
term contract restrictions have been
enacted for sound reasons, such as to
discourage corruption. It should be
noted, however, that the Act only
requires elimination of restrictions
impacting resource recovery facilities;
and. even where these restrictions are
eliminated, there are other methods
which may be employed to safeguard
the contracting process (such as split
bidding and acceptance of the lowest
bid.)
Finally, several commentors asked
what is meant by "long-term". This
refers to a contract length sufficient to
repay the capital costs of the resource
recovery project. It is usually a 20 year
period.
Under section 6002 of the Act each
"procuring agency" is required to
procure "items composed of the highest
percentage of recovered materials
practicable consistent with maintaining
a satisfactory level of competition".
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45076 Federal Register / Vol. 44. No. 146 / Tuesday. July 31. 1979 / Rules and Regulations
As defined by the Act a "procuring
agency" includes "any State agency or
agency of a political subdivision of a
State which is using appropriated
Federal funds for such procurement
The proposed guidelines
contained a provision requiring
compliance with section 6002 as a
condition for approval of a State solid
waste management plan. After
analyzing the comments received on
that provision and reassessing the
relationship between sections 6002 and
4003. EPA has decided to discuss section
6002 in the "recommendations" and not
the "requirements" portion of these
guidelines.
Section 6002 applies to State agencies
by its. own terms and does not require
final guidelines .under section 4002
before it is applicable to State
procurement States should be
addressing the requirement of section
6002 in handling all of their Federal
funds regardless of whether they
develop State solid waste management
plans that satisfy the requirements of
section 4003. EPA has deleted any
reference to section 6002 in the
requirements portion of subpart D to
avoid any suggestion that the
procurement requirements of the Act are
only enforceable in the context of State
solid management planning.
A number of States commented that
the State solid waste agency can have
only limited impact on the State
procurement process. EPA recognizes
that State solid waste management
agencies are generally not involved in
procurement practices and policies.
However, these guidelines recommend
that the State solid waste agency
provide information and guidance on
recoverded materials to the State
procurement agency and encourge that
agency to develop procurement
procedures in line with the section 6002
requirements. State solid waste
management agencies should also seek
to implement the section 6002 provisions
wherever possible in their procurement
activities and thereby set an example
for other State agencies.
The guidelines recommend resource
recovery and resource conservation as
the preferred methods of solid waste
management whenever technically and
economically feasible. While resource
recovery and conservation may reduce
land disposal needs, however, these
methods will not eliminate the need for
land disposal. It is expected that in the
near term, resource recovery and
conservation will have only a limited
impact on the solid waste generated
nationwide. Therefore, there will
continue to be a need for
environmentally sound land disposal
facilities in order to meet the objectives
of the Act.
Subpart E—Facility Planning and
Implementation
These guidelines require that the State
plan provide for adequate resource
conservation, recovery, storage,
treatment, and disposal facilities and
practices necessary to use or dispose of
solid and hazardous waste in an
environmentally sound manner. These
guidelines also recommend a number of
actions that could be undertaken to help
assure that the necessary facilities and
services are in fact provided for.
Several commentors emphasized that
in complying with this requirement, it is
important to strike an appropriate
balance between public and private
sector activities. These guidelines do not
favor one over the other. In some parts
of the country, private sector initiatives
may be sufficient to ensure that the
needed facilities are available.
However, in other instances, there may
be a need for greater involvement of
State or substate governments. This
involvement should include an
awareness of private sector activities in
order to determine whether public sector
involvement in-facility planning and
implementation is necessary.
EPA recognizes that there is an
established solid waste management
industry offering a wide range of
services, including the design,
construction, and operation of
processing, storage, treatment, transport.
disposal, and recovery facilities. It is not
the intent of these guidelines that the
public sector needlessly supplant or
duplicate activities of the private sector.
State and substate agencies are
encouraged to establish policies for free
and unrestricted movement of solid and
hazardous waste across jurisdictional
boundaries and procedures for snaring
information useful to prospective and
established entrepreneurs, as well as to
provide relevant planning information to
industry regarding population and waste
generation trends, environmental
conditions and other topics that would
assist in the establishment of financially
and environmentally sound facilities.
The guidelines recommend a
statewide assessment of the adequacy
of existing facilities and an evaluation
of the need for new or expanded
facilities. The guidelines purposely leave
it up to State discretion whether this
needs assessment is to be conducted by
State or substate agencies or by a
combination of the two. One commentor
pointed out that the needs assessment
should consider the amount and extent
of interstate transportation of solid
wastes. A recommendation was added
to include such considerations in
assessing the need for facilities.
Where facilities and practices are
found to be inadequate, actions should
be taken to help ensure that needed
facilities are developed by State or
substate agencies or by the private
sector. For areas found to have five or
fewer years of capacity remaining, more
detailed planning should be carried out,
including evaluation of technologies and
. site locations. Implementation schedules
also should be developed. It is widely
accepted that facility siting is one of the
most difficult solid waste management
problems. Many commentors stressed
that it is preferable for facility
acquisition activities to remain the
responsibility of local and regional
governments. However, recent
experience indicates that it is becoming
more and more difficult for substate
governments to obtain sites for solid
waste disposal facilities. This is
especially true for facilities that store,
treat, or dispose of hazardous wastes.
These guidelines recommend that
where there is less than t\vo years
projected capacity, the State should
have the authority to acquire facilities or
cause facilities to be acquired. The
majority of the States responding to this
recommendation agreed that it is
important for the State plan to explore
options for more direct State control
over siting and facility development if
local government and private sector
initiatives fail.
Several commentors emphasized that
due to the diversity in State
constitutional provisions and legislative
and regulatory authorities. EPA should
not dictate specific methods for the
State to obtain greater control over
facility acquisition. EPA is not requiring
any particular strategy for the States.
but suggests that the States investigate
the following methods recommended by
commentors for acquiring more direct
control over siting and facility
development: obtaining the authority to
override local zoning laws or to contract
directly for facilities and services; using
condemnation or eminent domain
procedures; arbitrating siting disputes:
establishing site locations at the
invitation of local governments;
requiring facility permits to conform to
regional plans developed under the
State plan; and, instituting a public
utility agency to regulate the supply of
services.
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Federal Register / Vol. 44, No. 148 / Tuesday. July 31, 1979 / Rules and Regulations 45077
With regard to hazardous wa%te
facility planning, there are certain
special factors to be considered. Most
hazardous waste recovery, treatment.
storage, and disposal facilities are
privately operated. Hazardous waste
generators are often large industries
with heavy capital investments^in plants
and equipment into which onsije
hazardous waste management facilities
have been integrated. In addition, there
are o.ver 100 private offsite hazardous
waste management facilities which
provide service to many industries.
The State plan should provide for
adequate hazardous waste recovery.
treatment, storage, and disposal
facilities, including public facilities
where necessary. States should develop
implementation schedules which will
insure siting of the necessary hazardous
waste management facilities. State
plans should also encourage waste
exchanges and other waste utilization
practices for hazardous wastes.
•Subpart F—Coordination With Other
Programs
Section 4003(1) requires the State,
solid waste management plan to identify
means for coordinating regional
planning and implementation under the
State plan. Section 1006 requires the
Administrator to integrate all provisions
of this Act (including approval of State
plans) with other Acts that grant
regulatory authority to the
Administrator in order to prevent
duplication of administrative and
enforcement efforts. To satisfy these
general objectives the guidelines require
that the State plan provide for
coordination with Federal programs that
affect State solid waste management
Several commentors asked what the
guidelines mean by coordination.
Generally the goal of coordination is a
balancing and sharing of responsibilities
among programs with the aim of
avoiding duplication of effort and gaps
in program coverage. That goal may be
achieved through the use of a wide
range of administrative techniques.
depending on the particular institutional
arrangements in a State government. It
is impossible to specify in these
guidelines a general set of coordination
steps which will be applicable to all
States. Therefore, these guidelines
identify several Federal programs that
are relevant to solid waste management
and require that the States examine the
relationship between those programs
and the State plan. The particular steps
necessary to accommodate sound
administration of solid waste programs
to the objectives of other Federal
programs must be developed on a State-
by-State basis through negotiations
between EPA. the States and other
Federal agencies.
Coordination With Guidelines and
Regulations Under the Act
Certain guidelines and regulations
developed under the Act which should
be considered in conjunction with these
guidelines for State plans include:
(1) Interim regulations to implement
the Resource Conservation and
Recovery Act of 1976 (40 CFR Part 35),
as amended. These regulations establish
procedures and policies for grants and
financial assistance programs.
(2) Identification of regions and
agencies for solid waste management,
interim guidelines (40 CFR Part 255).
Identifications should be made following
the criteria and procedures in the Part
255 guidelines. Completed
identifications should be reviewed to
determine whether new or revised
identifications must be made to comply
with these planning guidelines.
(3) Solid waste disposal facilities.
proposed criteria for classification (40
CFR Part 257). This regulation proposes
minimum criteria for determining which
solid waste land disposal facilities shall
be classified as posing no reasonable
probability of adverse effects on health
or the environment
(4) State hazardous waste program
guidelines. These were proposed as 40
CFR Part 123, subparts A and B (44 FR
34298-34307. 6/14/79); Part 123
integrates the State hazardous waste
program requirements with similar State
regulations under the Clean Water Act,
as amended (33 U.S.C. 1251 et seq.), and
the Safe Drinking Water Act (42 U.S.C.
300f et seq.). Part 123 describes the
various provisions and capabilities a
State hazardous waste program must
have in order to qualify for full or
interim authorization under the Act
Other regulations for hazardous waste
management developed under subtitle C
of the Act which should be considered
are:
Section 3001: Identification and
Listing—40 CFR 250 Subpart A (43 FR
58934-58968,12/18/78).
Section 3002: Generator Standards—
40 CFR 250 Subpart B (43 FR 58969-
58975,12/18/78).
Section 3003: Transporter Standards—
40 CFR 250 Subpart C (43 FR 18506-
18512, 4/28/78; see also the DOT
proposal. 43 FR 22626-22634. 5/25/78).
Section 3004: Facility Standards—40
CFR 250 Subpart D (43 FR 58994-59022,
12/18/78).
Section 3005: Permits—40 CFR 122 and
124 Subparts A and B (44 FR 34267-
34282. 34321-34328, 6/14/79).
Section 3010: Notification—40 CFR 250
Subpart G (43 FR 29908-29913. 7/11/78).
Section 3011: GranVs—40 CFR 35 (42
FR 56050.10/20/77; amended by 43 FR
43424, 9/25/78).
(5) Resource recovery facility
guidelines (40 CFR Part 245). These
guidelines apply to Federal agencies'
planning and establishment of resource
recovery facilities.
Coordination With Other
Environmental Programs
Plans developed under these
guidelines should be coordinated with
guidelines, regulations and programs
developed under other Federal
environmental acts:
(1) Water Quality Management.
Subpart F of these guidelines addresses
the requirements for coordinating the
State plan with programs under section
208 of the Clean Water Act, as amended
(33 U.S.C. 1288). Section 208 provides for
the identification of complex water
quality problem areas and for the
designation of area wide agencies in
those areas to conduct water quality
management planning. The State is
responsible for such planning in all
areas of the State for which an areawide
agency has not been identified and for
coordination of ail water quality
management activities within the State.
As part of this effort. State and
areawide agencies are to identify a
process to control the disposition of all
residuals (solid) waste which affects
water quality. After completion of such
planning, the governor is to designate
agencies to implement various elements
of the plan.
Subpart F discusses the need to
consider water quality management
agencies when making agency
identifications for solid waste planning
and implementation. It also discusses
the need to establish coordination
procedures when separate agencies are
identified. The following types of
coordination should take place:
(a) Use of a common data base (e.g.
demographic and population projections
and geogragphic boundaries);
(b) Use of compatible report formats.
maps, scales, legends, and so forth;
(c) Formulation of consistent policies
for sludge and residuals management;
(d) Coordinated identification of State
legislative changes needed for
implementation; and
(e) Coordination of program
development, implementation strategies,
and public participation programs.
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45078 • Federal Register / Vol. 44. No. 148 / Tuesday, July 31. 1979 / Rules and Regulations
(2) Surface Impoundment Studies.
Section 1442(a)(8](Q of the £afe
Drinking Water Act as amended
(SDWA) (42 U.S.C. 300J-1) requires a
study of the nature and extent of the
impact on underground water of ponds,
pools, lagoons, pits, or otherlsurface
disposal of contaminants in \
underground water rechargepreas. In
partial fulfillment of this requirements,
EPA is conducting through grants to
State agencies, an assessment of surface
impoundments and their effects on
ground water. Those impoundments
which are identified as having the
greatest potential for serious impact on
ground water quality should be
considered high priority for development
of the open dump inventory to be
conducted under the State solid waste
plan. Such impoundments which are
found to violate the disposal criteria
issued under section 4004 should be
listed in the inventory and be liable for
closure or upgrading. Those surface
impoundments that receive hazardous
wastes are subject to the regulations for
hazardous waste disposal facilities
promulgated under subtitle C of the Act
(3) The National Pollutant Discharge
Elimination System (NPDES). Section
402 of the Clean Water Act as amended
(33 U.S.C. 1342) establishes the National
. Pollutant Discharge Elimination System
(NPDES) governing discharge of
pollutants into navigable waters.
Permits issued under section 402 should
be coordinated with hazardous waste
and solid waste management permits,
where applicable. Specifically, the plan
should provide for necessary
coordination with:
(a) State or Federal issuance of
NPDES permits for facilities disposing or
utilizing municipal waste water
treatment sludge, including new facility
permits and compliance schedules under
existing permits.
(b) State or Federal issuance of
NPDES permits for facilities disposing or
utilizing industrial pollution control
sludges, including new and existing
facilities.
(c) State or Federal supervision of
pretreatment programs requiring
facilities to comply with requirements
and compliance schedules before
discharging into municipal sewer
systems.
Several commentors incorrectly
interpreted the proposed Guidelines to
imply that all disposal facilities are to
be covered by an .N'PDES permit. The
NPDES program is only applicable to
disposal facilities where operation of the
facility involves the discharge of a
pollutant to waters of the United States.
The proposed guidelines required
coordination of the open dump
inventory with the NPDES permit
program. While such coordination is
advisable where possible, coordination
with a planning tool such as the
inventory is not as important as
coordination between parallel
regulatory activities. Therefore, these
guidelines only require coordination
between the State solid waste
permitting activity (including the
establishment of compliance schedules)
and the NPDES program.
(4) State Implementation Plans.
Several commentors stated that
coordination with State Implementation
Plans under the Clean Air Act should
receive greater emphasis in these
guidelines. Coordination with State
Implementation Plans has been changed
to a "requirement" from "a requirement
where practicable." Commentors also
stated that the guidelines should
emphasize the need for full and timely
coordination of plans for resource
recovery systems with the requirements
of State Implementation Plans. This
change has been made.
(5) Coordination With Mining
Regulatory Agencies. Title IV of the
Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1231) provides for
the establishment of a fund for
reclamation of abandoned mining lands.
To be eligible to receive this funding.
States must first develop an
enforcement program for wastes from
active mines, subject to the Department
of the Interior and EPA approval (title
V). All mine wastes must be disposed in
accordance with performance standards
to be promulgated by the Office of
Surface Mining, Department of the
Interior. Coordination between these
EPA and Department of the Interior
programs will facilitate the inventory of
mining wastes and may increase the
beneficial use of sludge as a soil
conditioner in reclamation of
abandoned lands.
(6) Endangered and Threatened
Species. The proposed regulation
required "coordination, where
practicable" with programs
administered by the Office of
Endangered Species, Department of the
Interior. In examining the Act and
section 7 cf the Endangered Species Act
(16 U.S.C 1530 et seq.), EPA concluded
that these guidelines should address this
issue more specifically. Sound solid
waste management should include a
sensitivity to the impact of solid waste
collection, source separation, storage,
transportation, transfer, processing.
treatment and disposal on endangered
and threatened species. Therefore, these
guidelines require that the State plan
provide for coordination with the Office
of Endangered Species in order to
ensure that solid waste management
activities not jeopardize the continued
existence of an endangered or
threatened species nor result in the
destruction or adverse modification of a
critical habitat. The Office of
Endangered Species has identified the
species and habitats of concern in its
regulations (50 CFR Part 17)
implementing the Endangered Species
Act.
EPA does not believe that it is
appropriate to require more than
coordination with endangered species
programs in these guidelines. The States
may need to employ differing
administrative tools, from general policy
statements to site-specific permit
conditions, to provide protection of
endangered species within their borders.
EPA believes that the States must have
the flexibility to determine, dfter
consultation with Federal agencies
concerned with this issue, the
appropriate role of the State solid waste
management plan in dealing with these
issues. Such an approach is consistent
with subtitle D, which relies heavily on
State inititative, and which ultimately
provides the greatest assurance of
devising a solid waste management
• program which will be effective in
protecting endangered and threatened
species.
(7) Dredge and Fill Permit Program.
Under section 404 of the Clean Water
Act as amended (CWA), the United
States Army Corps of Engineers is
responsible for the issuance of permits
for the discharge of dredged or fill
material into the Waters of the United
States. States may assume responsibility
for the issuance of permits if they have a
program which satisfies requirements
specified in section 404 of the CWA.
States should attempt to coordinate the
State plan with the dredge and fill
permit program, particularly in regard to
the siting of disposal facilities. To
emphasize the importance of this
program these guidelines require
coordination with the Corps of
Engineers (or the appropriate State
agency) concerning the dredge and fill
permit program.
(8) Programs Affecting Indian
Reswations. Suggestions were received
for coordination with areas not listed in
these guidelines. Several commentors
were particularly concerned about
coordination with programs affecting
Indian tribes and lands. EPA recognizes
that improper disposal of solid waste on
Indian lands can cause pollution both on
and off the reservation. States with
Indian lands should therefore address
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Federal Register / Vol. 44, No. 148 / Tuesday. July 31. 1979 / Rules and Regulations
45079
solid waste management on these lands
in accord with treaties and State policy.
A provision has been added to subpart F
to encourge coordination with tribal
solid waste management programs.
General wording has also added to
subpart F to encourage the State to
coordinate with any other Act or
program area the State deems
appropriate.
Subpart G—Public Participation
Under authority of section 7004(b) of
the Act EPA is defining in these
guidelines requirements for public
participation in the development and
implementation of State and'substate
plans. The requirements in these
guidelines are supplemented by the
requirements in 40 CFR Part 35 for solid
waste program grants and by
requirements in 40 CFR Part 25. Part 25
contains genera] public participation
requirements for programs under the
Solid Waste Disposal Act as amended
by RCRA, as well as for the programs
under the Clean Water Act. as amended
(33 U.S.C. 1251 et seq.) and the Safe
Drinking Water Act. as amended (42
U.S.C. 300f et seq.).
The guidelines consider public
participation for plan development.
annual work program development,
regulation development, and permitting
of facilities. The guidelines require the
greatest public participation in
development of the State plan. The State
must hold a public hearing on the plan
in addition to other general efforts at
publicizing the content of the plan. The
State also is to prepare a responsiveness
summary describing how it responded to
public comment on the plan. The
guidelines require that the draft annual
State work program be made available
to the public and that the work program
include a public participation work plan.
In the development of State regulations
the guidelines allow the States to choose
between a public hearing as described
in 40 CFR Part 25 or the applicable
portions of State law or administative
procedures. The guidelines require a
public hearing on a facility permit if the
State finds that there is a significant
degree of public interest on the proposed
> permit
Many comments were received on the
requirement in these guidelines for an
advisory group to assist with plan
developlment and implementation.
Several commentors stated that informal
meetings or committees are a better
means of obtaining public input on a
solid waste management plan than
forma] advisory groups. Some States
with formal advisory groups felt that the
way their advisory groups are currently
structured is more suitable than the way
proposed by Part 25.
EPA recognizes these concerns and
has deleted both the requirement for an
advisory group and the requirement that
existing groups conform to the Part 25
provisions. EPA does believe, however,
that advisory groups can be an
important aspect of the public
consultation process and that their use
should be encouraged in those States
where they are effective. Therefore,
these guidelines recommend the use of
advisory groups. States considering the
establishment of an advisory group are
encouraged to examine the guidance for
advisory group membership and
responsibilities contained in Part 25.
On a related issue, several
commentors felt the guidelines should
encourage public education programs
that inform the public about and
encourage their interest in planning for
solid waste management EPA agrees,
and a recommendation for public
education programs has been included.'
The requirement to hold a public
hearing before approving a permit for a
resource recovery or disposal facility
generated more comments than any
other issue. Commentors cited the high
cost of holding hearings and the lack of
public interest in many permits. A
majority of States responding suggested
providing an opportunity for a hearing.
while some felt hearings should not be
required for permit renewals. Some
commentors felt that a hearing at the
local level should suffice, and a few
commentors stated that there should be
no requirements for hearings on permits
in these guidelines.
After considering these comments,
EPA has revised this section to require a
hearing when the State finds a
significant degree of public interest on
the proposed permit This change will
avoid burdening the State with the cost
of a hearing where there is no public
interest in a permit while providing an
opportunity for public participation in
this important facet of the solid waste
management process. EPA decided that
permit renewals should not be exempt
from this requirement because a revised
permit may result in a significantly
different environmental impact The
hearing or the decision on the need for
such a hearing may be a State or local
function depending on how the plan
identifies responsibilities within the
State.
It should be made clear that the
guidelines only address public hearing
requirements in permit proceedings.
Under State or Constitutional law there
may be a right to an adjudicatory, or "on
the record", hearing prior to the
imposition of legal sanctions. The
guidelines do not address that issue.
Economic Impact
EPA has determined that this
document does not require an economic
impact analysis statement under
Executive Order 12044 and OMB
Circular A-107. The major economic
impact of these guidelines is associated
with the closure and upgrading of
facilities in violation of the criteria for
classification of solid waste disposal
facilities (the Criteria, 40 CFR Part 257).
The environmental impact statement
prepared for the Criteria contains
analysis of the cost of bringing facilities
into compliance with the Criteria.
Dated: July 25.1979.
Barbara Blum,
Acting Administrator.
Title 40 CFR is amended to add a new
part 256 reading as follows:
PART 256—GUIDELINES FOR
DEVELOPMENT AND
IMPLEMENTATION OF STATE SOLID
WASTE MANAGEMENT PLANS
Subpart A—Purposes, General
Requirements, Definitions
Sec
256.01 Purpose and scope cf the guidelines.
256.02 Scope of the State solid waste
management plan.
. 256.03 State plan submission, adoption, and
revision.
25&04 State plan approval, financial
assistance.
256.05 Annual work program.
256.06 Definitions.
Subpart 8—Identification of
Responsibilities; Distribution of Funding
256.10 Requirements.
256.11 Recommendations.
Subpart C—Solid Waste Disposal Programs
256.20 Requirements for State legal
authority.
256.21 Requirements for State regulatory
powers.
256-22 Recommendations for State
regulatory powers.
256.23 Requirements for closing or
upgrading open dumps.
256.24 Recommendations for closing or
upgrading open dumps.
256.25 Recommendation for inactive
facilities.
256.26 Requirement for schedules leading to
compliance with the prohibition of open
dumping.
256.27 Recommendation for schedules
leading to compliance with the
prohibition of open dumping.
Subpart D—Resource Conservation and
Resource Recovery Programs
256.30 Requirements.
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45080 Federal Register / Vol. 44. No. 148 / Tuesday, July 31. 1979 / Rules and Regulations
Sec.
256.31 Recommendations for developing
and implementing resource conservation
and recovery programs.
Subpart E—Facility Planning and
Implementation
256.40 Requirements.
256.41 Recommendations for assessing the
need for facilities.
256.42 Recommendations for assuring
facility development.
Subpart F—Coordination With Other
Programs
256.50 Requirements.
Subpart G—Public Participation
256.60 Requirements for public participation
in State and substate plans.
256.61 Requirements for public participation
in the annual State work program.
256.62 Requirements for public participation
in State regulatory development
256.63 Requirements for public participation
in the permitting of facilities.
256.64 Recommendations for public
participation.
Authority: Sections 4002(b) and 4003 of the
Solid Waste Disposal Act, as amended. Pub.
L. 94-580:90 Stat. 2813. 2814; 42 U.S.C
6942(b), 6943.
Subpart A—Purpose, General
Requirements, Definitions
§ 256.01 Purpose and scope of the
guidelines.
(a) The purpose of these guidelines is
to assist in the development and
implementation of State solid waste
management plans, in accordance with
section 4002(b) of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976 {42 U.S.C. 6942(b)) (the
"Act"). These guidelines contain
methods for achieving the objectives of
environmentally sound management and
disposal of solid and hazardous waste,
resource conservation, and maximum
utilization of valuable resources.
(b) These guidelines address the
minimum requirements for approval of
State plans as set forth in section 4003 of
the Act. These are:
(1) The plan shall identify, in
accordance with section 4006(b), (i) the
responsibilities of State, local and
regional authorities in the
implementation of the State plan, (ii) the
distribution of Federal funds to the
authorities responsible for development
and implementation of the State plan,
and (iii) the means for coordinating
regional planning and implementation
under the State plan.
(2) The plan shall, in accordance with
section 4005(c), prohibit the
establishment of new open dumps
within, the State, and contain
requirements that all solid waste
(including solid waste originating in
other States, but not including
hazardous waste) shall be (i) utilized for
resource recovery or (ii) disposed of in
sanitary landfills (within the meaning of
section 4004(a)) or otherwise disposed of
in an environmentally sound manner.
(3) The plan shall provide for the
closing or upgrading of all existing open
dumps within the State pursuant to the
requirements of section 4005.
(4) The plan shall provide for the
establishment of such State regulatory
powers as may be necessary to
implement the plan.
(5) The plan shall provide that no
local government within the State shall
be prohibited under State or local law
from entering into long-term contracts
for the supply of solid waste to resource
recovery facilities.
(6} The plan shall provide for resource
conservation or recovery and for the
disposal of solid waste in sanitary
landfills or for any combination of
practices so as may be necessary to use
or dispose of such waste in a manner
that is environmentally sound.
(c) These guidelines address the
requirement of section 4005(c) that a
State plan:
Shall establish, for any entity which
demonstrates that it has considered other
public or private alternatives for solid waste
management 4o comply with the prohibition
on open dumping and is unable to utilize such
alternatives to-so comply, a timetable or
schedule of compliance for such practice or
disposal of solid waste which specifies a
schedule of remedial measures, including an
enforceable sequence of actions or
operations leading to compliance with the
prohibition on open dumping of solid waste
within a reasonable time (not to exceed five
years from the date of publication of the
inventory).
9 256.02 Scope of the State solid waste
management plan.
(a)(l) The State plan shall address all
solid waste in the State that poses
potential adverse effects on health or
the environment or provides opportunity
for resource conservation or resource
recovery. The plan shall consider.
(i) Hazardous wastes;
(ii) Residential, commercial and
institutional solid waste;
(iii) Wastewater treatment sludge;
(iv) Pollution control residuals;
(v) Industrial wastes;
(vi) Mining wastes;
(vii) Agricultural wastes;
(viii) Water treatment sludge; and
(ix) Septic tank pumpings.
(2) The State plan shall consider the
following aspects of solid waste
management:
(i) Resource conservation;
(ii) Source separation;
(iii) Collection;
(iv) Transportation;
(v) Storage;
(vi) Transfer;
(vii) Processing (including resource
recovery);
(viii) Treatment; and
(ix) Disposal.
(b) The State Plan shall establish and
justify priorities and liming for actions.
These priorities shall be based on the
current level of solid waste management
planning and implementation within the
State, the extent of the solid waste
management problem, the health.
environmental and economic impacts of
the problem, and the resources and
management approaches available.
(c) The State plan shall set forth an
orderly and manageable process for
achieving the objectives of the Act and
meeting the requirements of these
quidelines. This process shall describe
as specifically as possible the activities
to be undertaken, including detailed
schedules and milestones.
(d) The State plan shall cover a
minimum of a five year time period from
the date submitted to EPA for approval.
(e) The State plan shall identify
existing State legal authority for solid
waste management and shall identify
modifications to regulations necessary
to meet the requirements of these
guidelines.
9 256.03 State plan submission, adoption,
and revision.
(a) To be considered for approval, the
State plan shall be submitted to EPA
within eighteen months after final
promulgation of these guidelines.
(b) Prior to submission to EPA, the
plan shall be adopted by the State
pursuant to State administrative
procedures.
(c) The plan shall be developed in
accord with public participation
procedures required by subpart G of this
part
(d) The plan shall contain procedures
for revision. The State plan shall be
revised by the State, after notice and
public hearings, when the
Administrator, by regulation, or the
State determines, that:
(1) The State plan is not in compliance
with the requirements of these
guidelines;
(2) Information has become available
which demonstrates the inadequacy of
the plan; or
(3) Such revision is otherwise
necessary.
(e) The State plan shall be reviewed
by the State and, where necessary.
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Federal Register / Vol. 44. No. 148 / Tuesday. |uly 31. 1979 / Rules and Regulations 45081
revised and readopted not less
frequently than every three years.
§ 256.04 State plan approval, financial
assistance.
(a) The Administrator shall, within six
months after a State plan has been
submitted for approval, approve or
disapprove the plan. The Administrator
shall approve a plan if he determines
that
(1) It meets the requirements of these
guidelines which address sections
4003(1), (2). (3), and (5). and
(2) It contains provisions for revision
pursuant to § 256.03.
(b) The Administrator shall review
approved plans from time to time, and if
he determines that revisions or
corrections are necessary to bring such
plan into compliance with all of the
requirements of these guidelines,
including the requirements which
address sections 4003(4) and (6) and any
new or revised requirement established
by amendment to this part, he shall
notify the State and provide an
opportunity for such revisions and
corrections and for an appeal and public
hearing. If the plan continues to remain
out of compliance, he shall withdraw his
approval of such plan.
(c) Such withdrawal of approval shall
cease to be effective upon the
Administrator's determination that the
State plan complies with the
requirements of these guidelines.
(d) The Administrator shall approve a
State application for financial
assistance under subtitle 0 of the Act,
and make grants to such State, if the
Administrator determines that the State
plan continues to be eligible for
approval and is being implemented by
the State.
(e) Upon withdrawal of approval of a
State plan, the Administrator shall
withhold Federal financial and technical
assistance under subtitle D (other than
such technical assistance as may be
necessary to assist in obtaining
- reinstatement of approval) until such
time as approval is reinstated.
(Procedures for termination of financial
assistance and for settlement of disputes
are contained in 40 CFR 30. appendix A.
articles 7 and 8.)
§ 256.05 Annual work program.
(a) The annual work program
submitted for financial assistance under
section 4008(a)(l) and described in the
grant regulations (40CFR Part 35) shall
be reviewed by the Administrator in
order to determine whether the State
plan is being implemented by the State.
(b) The Administrator and the State
shall agree on the contents of the annual
work program. The Administrator will
consider State initiatives and priorities.
in light of the goals of the Act. in
determining annual work programs for
each State.. The annual work program
represents a State's obligation incurred
by acceptance of financial assistance.
(c) Annual guidance for the
development of State work programs
will be issued by EPA. While this
guidance will establish annual national
priorities, flexibility will be provided in
order to accommodate differing State
priorities.
(d) The following documents
developed under the State plan shall be
included by reference in the annual
work program:
(1) Substate solid waste management
plans,
(2) Plans for the development of
facilities and services, including
hazardous waste management facilities
and services,
(3) Evidence of actions or steps taken
to close or upgrade open dumps.
(e) The annual work program shall
allocate the distribution of Federal funds
to agencies responsible for the
development and implementation of the
State plan.
$256.06 Definitions.
Terms not defined below have the
meanings assigned them by section 1004
of the Act.
The Act" means the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976 (42 U.S.C. 6901 et seq.).
"Criteria" means the "Criteria for
Classification of Solid Waste Disposal
Facilities", 40 CFR Part 257, promulgated
under section 4004(a) of the Act.
"Facility" refers to any resource
recovery system or component thereof.
any system, program or facility for
resource conservation, and any facility
for collection, source separation,
storage, transportation, transfer,
processing, treatment or disposal of
solid waste, including hazardous waste,
whether such facility is associated with
facilities generating such wastes or not.
"Implementation" means putting the
plan into practice by carrying out
planned activities, including compliance
and enforcement activities, or ensuring
such activities are carried out.
"Inactive facility" means a facility
which no longer receives solid waste.
"Inventory of open dumps" means the
inventory required under section 4005(b)
and is defined as the list published by
EPA of those disposal facilities which
do not meet the criteria.
"Operator" includes facility owners
and operators.
A "permit" is an entitlement to
commence and continue operation of a
facility as long as both procedural and
performance standards are met. The
term "permit" includes any functional
equivalent such as a registration or
license.
"Planning" includes identifying
problems, defining objectives, collecting
information, analyzing alternatives and
determining necessary activities and
courses of action.
"Provide for" in the phrase "the plan
shall (should) provide for" means
explain, establish or set forth steps or
courses of action.
The term "shall" denotes
requirements for the development and
implementation of the State plan.
The term "should" denotes
recommendations for the development
and implementation of the State plan.
"Substate" refers to any public
regional, local, county, municipal, or
iniermunicipal agency, or regional or
local public (including interstate) solid
or hazardous waste management
authority, or other public agency below
the State level.
Subpart B—Identification of
Responsibilities; Distribution of
Funding
§ 256.10 Requirements.
. (a) In accordance with sections
4003(1) and 4006 and the interim
guidelines for identification of regions
and agencies for solid waste
management (40 CFR Part 255), the State
plan shall provide for.
(1) The identification of the
responsibilities of State and substate
(regional, local and interstate)
authorities in the development and
implementation of the State plan;
(2) The means of distribution of
Federal funds to the authorities
responsible for development and
implementation of the State plan: and
(3) The means for coordinating
substate planning and implementation.
(b) Responsibilities shall be identified
for the classification of disposal
facilities for the inventory of open
dumps.
(c) Responsibilities shall be identified
for development and implementation of
the State regulatory program described
in subpart C of this part.
(d) Responsibilities shall be identified
for the development and implementation
of the State resource conservation and
resource recovery program described in
subpart D of this part.
(e) State, substate and private sector
responsibilities shall be identified for
the planning and implementation of
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45082 Federal Register / Vol. 44. No. 148 / Tuesday. July 31, 1979 /Rules and Regulations
solid and hazardous waste management
facilities and services.
(f) Financial assistance under sections
4008(a) [1] and (2) shall be allocated by
the State to State and substate
authorities carrying out development
and implementation of the State plan.
Such allocation shall be based on the
responsibilities of the respective parties
as determined under section 400G(b).
§256.11 Recommendations.
(a) Responsibilities should be
identified for each of the solid xvaste
types listed in § 256.02(a)(l).
(b) Responsibilities should be
• identified for each of the aspects of solid
waste management listed in
§ 256.02(a)(2).
(c) Responsibilities should be
identified for planning and designating
ground water use with respect to design
and operation of solid waste disposal
facilities.
(d) Responsibilities should be
identified for the development and
implementation of the authorized State
hazardous waste management program
under subtitle C of the Act.
(e) The State plan should include a
schedule and procedure for the
continuing review, reassessment and
reassignment of responsibilities.
Subpart C—Solid Waste Disposal
Programs
§ 2S6JO Requirements for State legal
authority.
In order to comply with sections 4003
(2) and (3), the State plan shall assure
that the State has adequate legal
authority to prohibit the establishment
of new open dumps and to close or
upgrade existing open dumps. The
prohibition of the establishment of new
open dumps shall take effect no later
than six months after the date of
promulgation of the criteria or on the
date of approval of the State plan,
whichever is later.
§ 25&21 Requirements for State
regulatory powers.
In order to comply with section
4003(4). the State plan shall provide for
the establishment of State regulatory
powers. These powers:
(a) Shall be adequate to enforce solid
waste disposal standards which are
equivalent to or more stringent than the
criteria for classification of solid waste
disposal facilities (40 CFR Part 257).
Such authority shall be as definitive as
possible and clearly establish the means
for compliance.
(b) Shall include surveillance
capabilities necessary to detect adverse
environmental effects from solid waste
disposal facilities. Such capabilities
shall include access for inspection and
monitoring by regulatory officials and
the authority to establish operator
monitoring and reporting requirements.
(c) Shall make use of a permit
program which ensures that the
establishment cf new open dumps is
prohibited.
(d) Shall have administrative and
judicial enforcement capabilities,.
including enforceable orders, fines or
other administrative procedures, as
necessary to ensure compliance.
§ 256.22 Recommendations for State
regulatory powers.
In order to assist compliance with
section 4003(4), the following are
recommendations for State regulatory
powers as may be necessary to prohibit
new open dumps and close or upgrade
all existing open dumps.
(a) Solid waste disposal standards:
(1) Should be based on the health and
environmental impacts of disposal
facilities.
(2) Should specify design and
operational standards.
(3) Should take into account the
climatic, geologic, and other relevant
characteristics of the State.
(b) Surveillance systems should
establish monitoring requirements for
facilities.
(I) Every facility should be evaluated
for potential adverse health and
environmental effects. Based on this
evaluation, instrumentation, sampling.
monitoring, and inspection requirements
should be established.
(2) Every facility which produces
leachate in quantities and
concentrations that could contaminate
ground water in an aquifer should be
required to monitor to detect and predict
contamination.
(3) Inspectors should be trained and
provided detailed instructions for
checking on the procedures and
conditions that are specified in the
engineering plan and site permit
Provisions should be made to ensure
chain of custody for evidence.
(c) Facility assessment and
prescription of remedial measures
should be carried out by adequately
trained or experienced professional
staff, including engineers and geologists.
(d) The State .permit system should
provide the administrative control to
prohibit the establishment of new open
dumps and to assist in meeting the
requirement that all wastes be used or
disposed in an environmentally sound
manner.
(1) Permitting procedures for new
facilities should require applicants to
demonstrate that the facility will comply
with the criteria.
(2) The permit system should.specify.
for the facility operator, the location.
design, construction, operational,
monitoring, reporting, completion and
maintenance requirements.
(3) Permit procedures should include
provisions to ensure that future use of
the property on which the facility is
located is compatible with that
property's use as a solid waste disposal
facility. These procedures should
include identification of future land use
or the inclusion of a stipulation in the
property deed which notifies future
purchasers of precautions necessitated
by the use of the property as a solid
waste disposal facility.
(4) Permits should only be issued to
facilities that are consistent with the
State plan, or with substate plans
developed under the State plan.
(e) The enforcement system should be
designed to include both administrative
procedures and judicial remedies to
enforce the compliance schedules and
closure procedures for open dumps.
(1) Permits, surveillance, and
enforcement system capabilities should
be designed for supporting court action.
(2) Detection capabilities and
penalties for false reporting should be
provided for.
J 256.23 Requirements for closing or
upgrading open dumps.
In meeting the requirement of section
4003(3) for closing or upgrading open
dumps:
(a) The State plan shall provide for
the classification of existing solid waste
disposal facilities according to the
criteria. This classification shall be
submitted to EPA, and facilities
classified as open dumps shall be
published in the inventory of open
dumps.
(b) The State plan shall provide for an
orderly time-phasing of the disposal
facility classifications described in
paragraph (a) of this section. The
determination of priorities for the
classification of disposal facilities shall
be based upon:
(1) The potential health and
environmental impact of the solid waste
disposal facility;
(2) The availability of State regulatory
and enforcement powers; and
(3) The availability of Federal and
State resources for this purpose.
(c) For each facility classified as an
open dump the State shall take steps to
close or upgrade the facility. Evidence of
that action shall be incorporated by
reference into the annual work program
and be made publicly available. When
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Federal Register / Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations 45083
the State's actions concerning open
dumps are modified, the changes shall
be referenced in subsequent annual
work programs.
(d) In providing for the closure of open
dumps the State shall take steps
necessary to eliminate health hazards
and minimize potential health hazards.
These steps shall include requirements
for long-term monitoring or contingency
plans where necessary.
§ 256.24 Recommendations for closing or
upgrading open dumps.
(a) All sources of information
available to the State should be used to
aid in the classification of facilities.
Records of previous inspections and
monitoring, as well as new inspections
and new monitoring, should be
considered. :: . . .:. .
(b) The steps to close or upgrade open
dumps established under § 2S6.23(c)
should be coordinated with the facility
needs assessment described in § 256.41.
(c) A determination should be made of
the feasibility of resource recovery or
resource conservation to reduce the
solid waste volume entering a facility
classified as an open dump; and feasible
measures to achieve that reduction
should be implemented.
S 256.25 Recommendation for inactive
facilities.
Inactive facilities that continue to
produce adverse health or
environmental effects should be
evaluated according to the criteria. The
State plan should provide for measures
to ensure that adverse health or
environmental effects from inactive
facilities are minimized or eliminated.
Such measures may include actions by
disposal facility owners and operators,
notification of the general public.
adjacent residents and other affected
parties and notification of agencies
responsible for public health and safety. ,
§ 256.26 Requirement for schedules
leading to compliance with the prohibition
of open dumping.
In implementing the section 4005(c)
prohibition on open dumping, the State
plan shall provide that any entity which
demonstrates that it has considered
other public or private alternatives to
comply with the prohibition on open
dumping and is unable to utilize such
alternatives to so comply, may obtain a
timetable or schedule for compliance
which specifies a schedule of remedial
measures, and an enforceable sequence
of actions, leading to compliance within
a reasonable time (not to exceed 5 years
from the date of publication of the
inventory).
§ 256.27 Recommendation for schedules
leading to compliance with the prohibition
of open dumping.
In reviewing applications for
compliance schedules under § 250.26.
the State should consider the
availability of processing and disposal
facilities, the likelihood of
environmental damage from disposal at
available facilities, the existence of
State or substate requirements
(including other compliance schedules)
applicable to available facilities, cost
constraints, existing contractual
agreements and other pertinent factors.
Subpart D—Resource Conservation
and Resource Recovery Programs
S 256.30 Requirements.
(a) In order to comply with sections
4003(2) and (6) as they pertain to
resource conservation and recovery, the
State plan shall provide for a policy and
strategy for encouragement of resource
recovery and conservation activities.
(b) In order to comply with section
4003(5), the State plan shall provide that
no local government within the State is
prohibited under State or local law from
entering into long-term contracts for the
supply of solid waste to resource
recovery facilities.
§ 256.31 Recommendations for
developing and Implementing resource .
conservation and recovery programs.
(a) In order to encourage resource
recovery and conservation, the State
plan should provide for technical
assistance, training, information
development and dissemination,
financial support programs, market
studies and market development
programs.
(b) In order to comply with the
requirement of § 256.30(b) regarding
long-term contract prohibitions, the
State plan should provide for
_ (1) Review of existing Statei and local
laws and regulations pertinent to
contracting for resource recovery
services or facilities.
(2) Reporting of all laws and
regulations found to be in violation of
this requirement to the executive officer
of the administrative agency responsible
for the statute.
(3) Development of an administrative
order or a revised law or regulation or
any other preliminary step for the
removal or amending of a law or
regulation in violation of this
requirement.
(4) Development of a strategy for the
consideration of the legislature to
prohibit and/or remove from State or
local law provisions in violation of this
requirement.
(c) The State plan should aid and |
encourage State procurement of
products containing recovered materials
in accord with section 6002 of the Act.
To assist this effort, the State plan
should provide for
(1) The development of a policy
statement encouraging the procurement
of recovered materials, wherever
feasible;
(2) The identification of the key
purchasing agencies of the State, along
with potential uses of recovered
materials by these agencies: and.
(3) The development of a plan of
action to promote the use of recovered
materials through executive order,
• legislative initiative, or other action that
the State deems necessary.
(d) In order to encourage resource
recovery and conservation, the State
plan should provide for the elimination,
to the extent possible, of restrictions on
the purchase of goods or services,
especially negotiated procurements, for
resource recovery facilities. This should
include:
(1) Review of existing State and local
laws pertinent to the procurement of
equipment and services for the design.
construction and operation of resource
recovery facilities;
(2) Listing of all laws that limit the
ability of localities to negotiate for the
procurement of the design, construction.
or operation of resource recovery
facilities:
(3) Development of administrative
orders or legislation or other action that
would eliminate these restrictions; and
(4) Development of a strategy and
plan of action for the consideration of
the legislature for execution of
administrative orders or other action
that would eliminate these restrictions.
(e) The State plan should encourage
the development of resource recovery
and resource conservation facilities and
practices as Ihe preferred jneans of solid
• waste management whenever
technically and economically feasible.
The State plan should provide for the
following activities:
(1) The composition of wastes should
be analyzed with particular emphasis on
recovery potential for material and "
energy, including fuel value, percentages
of recoverable industrial wasfes. grades
of wastepaper. glass, and non-ferrous
and ferrous metals.
(2) Available and potential markets
for recovered materials and energy
should be identified, including markets
for recoverable industrial wastes:
wastepapers; ferrous and non-ferrous
metals; glass; solid, liquid, or gaseous
fuels; sludges: and tires. The following
should be evaluated: location and
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45084
Federal Krx-ister / Vol. 44, No. 148 / Tuesday,. July 31. 1979 / Rules and Regulations
transportation rcquirnm u
and energy specifirnii""* «'• t
industries, minimum .|ii»'««:'y
requirements. pricinK i"' • *-'-*™ and
long-term contract iiviiilnl
(3) Resource ret;i>v. M t.
studies should be o>».l«" '•••'• '-"
of the State in whk.U •"•• > "'• markets for
recovered materials "' '•"'"•NV a'e
identified. These sln-1" -•• •-:'-'--d review
various technolo"•• • "•" '•'•> facilities
for the recovery of o« «s» ii"J materials
should be utilized wl»-«u x.-r technically
and economically fi-jiM'1"'
(6) Source separ;ili>'» -.»->.v.:ce -
conservation and mi*''-' "-:s:e
processing capacity sli.-"''1- • •' combined
to achieve the most Hi.-. '•* «; resource
conservation and er.«n- •••••'••' ''
Subpart E— Facility ri!m<«"
Implementation
§ 256.40 Requirement*
In order to comply » >'•'•'• "'• ':;on .
4003(6). the State pl.-m -;'-'-- J"ovioe for
adequate resource i:iin--"-»»von.
recovery, storage. uv;«i"«"": anc*
disposal facilities an.l r;:-:vfs
necessary to use or il>--r.^«' ^ solid and
hazardous waste in .•>»«'•» i^'rJnentalIy
sound manner.
§ 256.41 Recommend:.".*'* tor assessing
the need for facilities.
(a) In meeting the iv.;> •••••"••*** for
adequate resource c>""-' \~:'.ya,
recoverv, storage. in%»'-;'--';': -""
disposal facilities an.) :••-"•" «• Ae
State plan should pr>'> ••'•• vr r3
assessment of the ail .^ easting
facilities and praciiiv '-: '••"•* need for
new or expanded fa»"'-- •'" -'•'••*
practices.
(1) The needs ass,-ss:- • •.: should be
based on current ami ;• •' •••':s'- waste
generation rales ami .•••• •' :' opacities of
presently operating ;•>•'•' •' - -"ed
facilities.
(2J Existing and phi" ' '-v '•«•"««»
consereation and rn .-»•- » ;"actices and
their impact on facih:> -^^-' *<™uJd be
assessed.
(3) Current and pnv--. «^: movement
of solid and hazardous »- — J Across
State and local boun.i- • > >"^vild be
assessed.
(4) Special handling :---^:* shoujd be
determined for all sol:.*- ••«»•:<•
categories.
(5) Impact on facility capacities due to
predictable changes in waste quantities
and characteristics should be estimated.
(6) Environmental, economic, and
other constraints on continued operation
of facilities should be assessed.
(7) Diversion of wastes due to closure
of open dumps should be anticipated.
(8) Facilities and practices planned or
provided for by the private sector should
be assessed.
(b) The State plan should provide for
the identification of areas which require
new capacity development, based on the
needs assessment.
§ 256.42 Recommendations for assuring
facility development.
(a) The State plan should address
facility planning and acquisition for all
areas which are determined to have
insufficient recovery, storage, treatment
and disposal capacity in the assessment
of facility needs.
(b) Where facilities and practices are
found to be inadequate, the State plan
should provide for the necessary
facilities and practices to be developed
by responsible State and substate
agencies or by the private sector.
(c) For all areas found to have five or
fewer years of capacity remaining, the
State plan should provide for.
(1) The development of estimates of
waste generation by type and
characteristic,
(2] The evaluation and selection of
resource recovery, conservation or
disposal methods,
(3) Selection of sites for facilities, and
(4) Development of schedules of
implementation.
(d) The State plan should encourage
private sector initiatives in order to
meet the identified facility needs. .
(e) In any area having fewer than 2
years of projected capacity, the State
plan should provide for the State to take
action such as acquiring facilities or
causing facilities to be acquired.
(f) The State plan should provide for
the initiation and development of
environmentally sound facilities as soon
as practicable to replace all open
dumps.
(g) The State plan should provide for
the State, in cooperation with substate
agencies, to establish procedures for
choosing which facilities will get priority
for technical or financial assistance or
other emphasis. Highest priority should
be given to facilities developed to
replace or upgrade open dumps.
(h) The State plan should provide for
substate cooperation and policies for
free and unrestricted movement of solid
and hazardous waste across Slate and
local boundaries.
Subpart F—Coordination With Other
Programs
{256.50 Requirements.
Section 4003(1) requires the State
solid waste managment plan to idenifty
means for coordinating regional
planning and implementation under the
State plan. Section 1006 requires the
Administrator to integrate all provisions
of this Act (including approval of State
plans) with other Acts that grant
regulatory authority to the
Administrator in order to prevent
duplication of administrative and
enforcement efforts. In order to meet
these requirements:
(a) The State solid waste management
plan shall be developed in coordination
with Federal. State, and substate
programs for air quality, water quality,
water supply, waste water treatment,
pesticides, ocean protection, toxic
substances control, noise control, and
radiation control.
(b) The State plan shall provide for
coordination with programs under
section 208 of the Clean Water Act. as
amended (33 U.S.C. 1288). In identifying
agencies for solid waste management
planning and implementation, the State
shall review the solid waste
management activities being conducted
by water quality planning and
management agencies designated under
section 208 of the Clean Water Act.
Where feasible, identification of such
agencies should be considered during
the identification of responsibilities
under subpart B of this part. Where solid
waste management and water quality
agencies are separate entities, necessary
coordination procedures shall be
established.
(c) The Slate plan shall provide for
coordination with the National Pollutant
Discharge Elimination System (NPDES)
established under section 402 of the
Clean Water Act, as amended (33 U.S.C.
1342). The issuance of State facility
permits and actions taken to close or
upgrade open dumps shall be timed.
where practicable, to coordinate closely
with the issuance of a new or revised
NPDES permit for such facility.
(d) The State plan shall provide for
coordination with activities for
municipal sewage sludge disposal and
utilization conducted under the
authority of section 405 of the Clean
Water Act, as amended (33 U.S.C. 1345),
and with the program for construction
grants for publicly owned treatment
works under section 201 of the Clean
Water Act, as amended (33 U.S.C. 1281).
(e) The State plan shall provide for
coordination with Slate pretreatmenl
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Federal Register /Vol. 44. No. 148 / Tuesday. July 31. 1979 / Rules and Regulations "45085
activities under section 307 of the Clean
Water Act, as amended (33 U.S.C. 1317).
(0 The State plan shall provide for
coordination with agencies conducting
assessments of the impact of surface
impoundments on underground sources
of drinking water under the authority of
section 1442(a)(8)(C) of the Safe
Drinking Water Act (42 U.S.C. 300J-1).
(g) The State plan shall provide for
coordination with State underground
injection control programs (40 CFR Parts
122.123.124. and 146) carried out under
the authority of the Safe Drinking Water
Act (42 U.S.C. 300f et seq.) and with the
designation of sole source aquifers
under section 1424 of that Act.
(h) The State plan shall provide for
coordination with State implementation
plans developed under the Clean Air
Act (42 U.S.C. 7401 et seq.; Incineration
and open burning limitations: and. State
implementation plan requirements
impacting resource recovery systems).
(i) The State plan shall provide for
coordination with the Army Corps of
Engineers permit program (or authorized
State program) under section 404 of the
Clean Water Act. as amended (33 U.S.C.
1344) for dredge and fill activities in
waters of the United States.
(j) The State plan shall provide for
coordination with the Office of
Endangered Species. Department of the
Interior, to ensure that solid waste
management activities, especially the
siring of disposal facilities, do not
jeopardize the continued existence of an
endangered or threated species nor
result in the destruction or adverse
modification of a critical habitat.
(k) The State plan shall provide for
coordination, where practicable, with
programs under
(1) The Toxic Substances Control Act
(15 U.S.C. 2601 et seq.: disposal of .
chemical substances and mixtures).
(2) The Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C 1362 et
seq.; disposal and storage of pesticides
and pesticide containers).
(3)The Marine Protection, Research
and Sanctuaries Act (33 U.S.C. 1420 et
seq.; disposal in ocean waters).
(1) The State plan shall provide for
coordination, where practicable, with
programs of other Federal agencies.
including:
(1) Department of the Interior.
(i) Fish and Wildlife Service
(wetlands).
(ii) Bureau of Mines and Office of
Surface Mining (mining waste disposal
and use of sludge in reclamation),
(iii) U.S. Geological Survey (wetlands.
floodplains. ground water);
(2) Department of Commerce.
National Oceanic and Atmospheric
Administration (coastal zone
management plans):
(3) Water Resources Council
(floodplains, surface and ground
waters);
(4) Department of Agriculture.
including Soil Conservation Service
(land spreading solid waste on food
chain croplands):
(5) Federal Aviation Administration
(locating disposal facilities ori or near
airport property);
(6) Department of Housing and Urban
Development (701 comprehensive
planning program, flood plains
mapping):
(7) Department of Defense
(development and implementation of
State and substate plans with regard to
resource recovery and solid waste
disposal programs at various
installations);
(8) Department of Energy (State
energy conservation plans under the
Energy Policy and Conservation Act (42
U.S.C. 6321)); and
(9) Other programs.
(m) The State plan shall provide for
coordination, where practicable, with
solid waste management plans in
neighboring States and with plans for
Indian reservations in the State.
Subpart G—Public Participation
S 256.60 Requirements for public
participation In State and substate plans.
(a) State and substate planning
agencies shall:
(1) Maintain a current list of agencies,
organizations, and individuals affected
by or interested in the plan:
(2) Provide depositories of relevant
information in one or more convenient
locations; and
(3) Prepare a responsiveness
summary, in accord with 40 CFR Part
25.8, where required by this subpart of
by an approved public participation
work plan, which describes matters on
which the public was consulted,
summarizes the public's views, and sets
forth the agency's response to the public
input.
(b) State and substate planning
agencies shall provide information and
consult with the public on plan
development and implementation.
Provision of information and
consultation shall occur both early in
the planning process (including the
preparation and distribution of a
summary of the proposed plan) and on
major policy decisions made during the
course of plan development, revision
and implementation. To meet this
requirement, planning agencies shall:
(1) Publicize information in news
media having broad audiences in the
geographic area:
(2) Place information in depositories
maintained under paragraph (a)(2) of
this section:
(3) Send information directly to
agencies, organizations and individuals
on the list maintained under paragraph
(a)(l) of this section; and
(4) Prepare and make available to the
public a responsiveness summary in
accord with 40 CFR Part 25.8.
(c) State and substate planning
agencies shall conduct public hearings
(and public meetings, where the agency
determines there is sufficient interest) in
accord with 40 CFR Parts 25.5 and 25.6.
The purpose of the hearings and
meetings is to solicit reactions and
recommendations from interested or
affected parties and to explain major
issues within the proposed plan.
Following the public hearings, a
responsiveness summary shall be
prepared and made available to the
public in accord with 40 CFR Part 25.8.
§ 256.61 Requirements for public
participation In the annual State work
program.
(a) A public participation work plan in
accord with 40 CFR Part 25.11 shall be
included in the annual State work
program.
(b) The State shall consult with the
public in the development of the annual
work program. One month prior to
submission of the draft work program to
the Regional Administrator, as required
by 40 CFR Part 35, the draft work
program shall be made available to the
public at the State information
depositories maintained under
§ 256.60(a)(2). The public shall be
notified of the availability of the draft
work program, and a public meeting
shall be held if the planning agency
determines there is sufficient interest
(c) The State shall comply with the
requirements of Office of Management
and Budget Circular No. A-95.
(d) Copies of the final work program
shall be placed in the State information
depositories maintained under
§ 256.60(a)(2).
§ 256.62 Requirements for public
participation in State regulatory
development
(a) The State shall conduct public
hearings (and public meetings where the
State determines there is sufficient
interest) on State legislation and
regulations, in accord with the State
administrative procedures act, to solicit
reactions and recommendations.
Following the public hearings, a
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45086 • Federal Register / Vol. 44, No. 148 / Tuesday, July 31. 1979 / Rules and Regulations
responsiveness summary shall be
prepared and made available to the
public in accord with 40 CFR Part 25.8.
(b) In advance of the hearings and
meetings required by paragraph (a) of
this section, the State shall prepare, a
fact sheet on proposed regulations or
legislation, mail the fact sheet to
agencies, organizations and individuals
on the list maintained under
§ 256.60[aJ{l) and place the fact sheet in
the State information depositories
maintained under | 256.60(a){2J.
§ 256.63 Requirements for public
participation in the permitting of facilities.
(a) Before approving a permit
application (or renewal of a permit) for a
resource recovery or solid waste
disposal facility the State shall hold a
public hearing to solicit public reaction
and recommendations on the proposed
permit application if the State
determines there is a significant degree
of public interest in the proposed permit.
(b) This hearing shall be held in
accord xvith 40 CFR Part 25.5.
§ 256.64 Recommendations for public
participation.
(a) State and substate planning
agencies should establish an advisory
group, or utilize an existing group, to
pro-vide recommendations on major
policy and program decisions. The
advisory group's membership should
reflect a balanced viewpoint in accord
with 40 CFR Part 25.?(c).
(b) State and substate planning
agencies should develop public
education programs designed to
encourage informed public participation
in the development and implementation
of solid waste management plans.
(c) The State should inform all
affected parties of the classification of a
facility as an open dump, in accord with
§ 256.22(a), prior to publication of that
facility by EPA on the open dump
inventory.
|FR Dec 70-25471 Filed 7-30-79; fc« «m)
BILUNO CODE 6S60-01-M
-------
Wednesday
September 23, 1981
Part ill
Environmental
Protection Agency
Guidelines for Development and
Implementation of State Solid Waste
Management Pians and Criteria for
Classification of Solid Waste Disposal
Facilities and Practices; Final Rule
-------
47048 Federal Register / Vol. 46, No. 184 / Wednesday, September 23,1981 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 256 and 257
[SW-FRL 1*76-2]
Guidelines for Development and
implementation of State Solid Waste
Management Plans and Criteria for
Classification of Solid Waste Disposal
Facilities and Practices
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: This rule modifies the
Environmental Protection Agency's
Guidelines for the Development and
Implementation of State Solid Waste
Management Plans (40 CFR Part 256)
and the Criteria for the Classification of
Solid Waste Disposal Facilities and
Practices (40 CFR Part 257). The
Guidelines are being amended to
expand public participation
opportunities in the planning process
and provide for expedited approval of
certain portions of the State plans. The
Criteria are being amended to modify
the groundwater. surface water and air
protection criteria. EPA is taking this
action as part of a settlement agreement
reached with industrial groups which
have challenged these regulations in
Federal court.
EFFECTIVE DATE: October 23.1981.
ADDRESS: The public docket for this
rulemaking is located in Room 2711, US.
Environmental Protection Agency, 401M
Street, S.W.. Washington. D.C. 20460
and is available for viewing from 9:00
aJn. to 4:00 p.m., Monday through
Friday, excluding holidays.
FOR FURTHER INFORMATION CONTACT:
For Part 256: Susan Absher. Office of
Solid Waste [WH-563J. U.S.
Environmental Protection Agency, 401 M
Street, S.W.. Washington. D.C. 20460.
202/382-2210. For Part 257: Kenneth A.
Shuster. Office of Solid Waste (WH-
564], U.S. Environmental Protection
Agency, 401 M Street. S.W..
Washington. D.C. 20460, 202/755-9125.
SUPPLEMENTARY INFORMATION:
I. Authority
These amendments are issued under
the authority of Sections J008(a}(3). 4002
and 4004 of the Solid Waste Disposal
Act. as amended by the Resource
Conservation and Recovery Act of 1976
(RCRA). as amended. 42 U.S.C.
6907(a)(3). 6942 and 6944. These
amendments are also issued under
Section 405(d) of the Clean Water Act
(CWA). as amended. 33 U.S.C. 1345(d).
II. Subtitle D of RCRA
The amendments being promulgated
today modify regulations issued under
Subtitle D of RCRA. There are two
/ central sets of provisions under Subtitle
D. First, Section 4005(a) of the Act
prohibits the act of "open dumping."
Under Section 1008(a)(3), EPA is to
establish minimum criteria to define
open dumping. Once EPA has
established these criteria, citizens may
bring suit under Section 7002 of RCRA to
enforce the prohibition. RCRA, however.
does not provide for any direct Federal
enforcement of this prohibition.
Second, Subtitle D establishes a State
solid waste management planning
program under Sections 4002-4008. In
this program EPA establishes general
guidelines and provides financial
assistance to the States for the
development and implementation of
solid waste management plans.
Participation in this program is optional
for the States, and EPA does not have
authority to establish such plans in
States that decline Federal financial
assistance.
Under Section 4002(b) EPA is to
establish general guidelines for these
plans that at a minimum, encompass the
requirements for State plans specified in
Section 4003 of RCRA. As part of its
plan a State must prohibit the
establishment of new open dumps and
provide for the closing or upgrading of
existing open dumps. In addition, under
Section 4005(a) the plan must provide
entities that are potentially liable for
open dumping an opportunity to upgrade
their practices pursuant to compliance
schedules. A party that adheres to such
a compliance schedule satisfying the
requirements of section 4005(a) is not
liable for open dumping. (See Section
4005(a).) The statute provides that such
compliance schedules can only be
issued by States with approved plans.
To assist the States in identifying the
solid waste disposal facilities that
constitute open dumps, EPA must
promulgate regulations under Section
4004(a) that provide criteria for
classifying solid waste disposal
facilities. Those that fail to satisfy such
criteria, as determined by the States, are
"open dumps." Under Section 4005(b)
EPA is required to publish an inventory
of open dumps, based on the State
findings. In doing so. EPA does not pass
on the adequacy of the State
determinations. Likewise the decision to
remove a facility from the inventor}* is a
State determination.
EPA issued the Guidelines for
Development and Implementation of
State Solid Waste Management Plans
(the Guidelines), satisfying Section
4002(b), on July 31. 1979 (44 FR 45066).
EPA issued the Criteria for
Classification of Solid Waste Disposal
Facilities and Practices (the Criteria),
satisfying Sections 1008(a)(3) and
4004(a), on September 13. 1979 (44 FR
53438). EPA has provided funding to the
States for the development of State
plans (including the inventory of open
dumps) through FY 81. Under the
President's budget for FY 82 no further
Federal financial assistance will be
available to the States for the
development of solid waste
management plans. EPA will remain
ready, however, to perform its statutory
duty under Section 4007 to take action to
approve or disapprove plans submitted
by the States.
III. Final Amendments
Shortly after the Guidelines and the
Criteria were issued, several trade
associations petitioned for judicial
review of both regulations in Federal
court. After careful negotiations, EPA
and the petitioners entered into a
settlement agreement. Pursuant to that
agreement, EPA proposed amendments
to the regulations. The amendments to
the Criteria were proposed on
November 3, 1980 (45 FR 72709); the
amendments to the Guidelines were
proposed on November 4, 1980 (45 FR
73440).
After reviewing the public comments,
EPA is today finalizing those
amendments in a form that is
substantially identical to that of the
proposed amendments.
A. The Guidelines
The final amendments make three
basic changes to the guidelines:
1. Partial plan approval. First, EPA
has modified the regulations to allow for
partial approval of that portion of the
State plan that would provide an
opportunity for compliance schedules
leading to compliance with the open
dumping prohibition. The compliance
schedule would still have to satisfy the
statutory requirements of Section
4005(a), as specified in § 256.26 of the
regulations, in order to provide a
defense to open dumping actions.
However. EPA will consider the
compliance schedule portion of the plan
for approval while the State continues to
work on the rest of the plan. This should
allow for the earliest possible approval
of State authority to issue compliance
schedules.
«,™nder.,this amendment, States can be
et0 isue comliance schedules
receive, a Sta.e
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Federal Register / Vol. 46, No. 184 / Wednesday, September 23, 1981 / Rules and Regulations 47049
will have a defense to open dumping
only with respect to those Criteria for
which the compliance schedule is
issued. '•
It should be noted that States may use
a wide variety of mechanisms to require
entities to comply with the open :
dumping prohibition. Most States will no
doubt use administrative orders or
permits. However, other mechanisms—
such as agreements between the entity
and the State as to a timetable for
remedial action—may be used if the
State has authority to use them, they are
enforceable, and they otherwise comply
with the requirements of § 256.26.
Specifically, § 2S6.03 has been
amended to allow a State to submit the
portion of the plan designed to satisfy
§ 256.28 prior to submission of the
complete plan. In turn, under § 256.04,
the Administrator shall approve the '
partial plan if he is able to make three
findings. First the State compliance
schedule procedures must satisfy the
requirements of § 256.26, the portion of
the Guidelines that sets forth statutorily-
required components of such schedules.
Second, the State must have general
authority (statutory or common law] to
issue and enforce compliance schedules.
Third, the State must be developing the
other portions of the plan in conformity
with the Guidelines, and on a
reasonable timetable. The Administrator
will specify in writing the timetable for
completion of the plan.
While the plan must be completed
within a reasonable period of time, EPA
anticipates that the timetable negotiated
between it and each State will reflect
each State's particular circumstances.
For example, the availability of State
resources will be taken into
consideration. The failure to complete
the plan within the specified period of
time, however, constitutes a ground for
withdrawal of partial approval pursuant
to the requirements of Section 4007(a) of
RCRA. A withdrawal of approval
eliminates the State's ability to issue
compliance schedules that insulate
entities from open dumping suits. If
partial approval is withdrawn for this
reason, however, EPA believes that
entities that have received compliance
schedules during the partial approval
stage will still be insulated from open
dumping liability as long as they remain
in compliance with the schedule
conditions.
One of the principal advantages of
this change is that it tends to reduce the
time period between the listing of a
facility in the open dump inventory and
the time when entities potentially liaHe
for open dumping in conjunction with
the facility (e.g. owner, operator, user of
the facility) could receive a State-issued
compliance schedule. (This problem,
referred to as the "window problem" by
the industry petitioners, is described in
more detail at 45 FR 73440.)
While most commenters on EPA'a
November 4 proposal supported this
change, one commenter argued that
partial approval would fragment the
logical development of a comprehensive
State solid waste management plan.
EPA does not believe that partial
approval will undermine the
development of sound solid waste
management plans. Giving the State
flexibility in the sequence of its planning
and implementation efforts can speed up
the process of getting a full plan in
place, thus serving the national goal
Moreover, § 256.03(f) is discretionary;
the State is not required to, but may
apply for partial approval.
2. Public participation in development
of the open dumping inventory. The
second change is an expansion of the
public participation requirements
surrounding the open dump inventory.
Section 256.60(a)(l) is being amended
today to explicitly provide that owners
or operators of facilities placed on the
open dump inventory be included on the
State's current list of parties affected by
or interested in the plan. These are the
parties that are to be kept informed
about major steps in the planning
process, including the identification of
open dumps. In addition, EPA has
redesignated § 254.64 as § 256.65 and
included a new § 256.64 which sets
minimum requirements for public
participation in development of the open
dump inventory. This requirement can
be satisfied by providing a notice of the
availability of the results of the
inventory classifications to those on the
State's current list of parties interested
in the plan at least 30 days before initial
submission of the list to the Federal
Government. For owners and operators
of facilities classified as open dumps,
the notice must indicate that the facility
has been so classified. With these
changes, the recommendation, formerly
designated as § 256.64(c), to notify
affected parties when a facility is
classified an open dump is unnecessary
and therefore is deleted.
EPA's rationale for these changes is
clearly set forth in the Preamble to the
proposed amendments (see 45 FR 73441).
It is important to recognize that in
amending its Guidelines to expand the
public participation requirements to
include the owner or operator of an
open dump, EPA is not suggesting that
those parties will necessarily be legally
liable in an open dumping suit EPA is
also not suggesting that such an owner
or operator has a legal right to receive
notice and to comment on the inventory.
Rather, EPA is recognizing that the
owner or operator of a facility will
probably be able to provide valuable
information about the facility (e.g.. the
type of waste in the facility) and that
cooperation of the owner or operator
will be essential to any effort to close or
upgrade a facility.
EPA received several comments
suggesting that the notice requirement
not apply to those facilities already
included in the first open dump
inventory. As a practical matter this will
be the case, for the States have already
submitted their lists to EPA for
publication. Therefore, the notice
requirement applies only to
classifications made after the effective
date of this amendment
Some States were concerned that this
public participation provision will
invoke State administrative procedures
that would require formal quasi-judicial
procedures. In particular some State
agencies indicated that the notice
requirements of § 256.65 would trigger
contested case hearings under State
administrative law procedures. The
consequence would be to burden the
State with protracted hearings, requiring
increased expenditures of State
resources. EPA does not intend this
result. See 45 FR 73440. Moreover, EPA
does not agree with the proposition that
the notice itself triggers a more formal
administrative procedure. Rather, the
triggering event is the State's action with
. regard to the inventory and the use of
the inventory's results. If under State
law these actions are of a nature to
warrant the protections of State '
administrative safeguards (e.g., notice,
right to hearing, etc.). such
administrative procedures would be
required independent of EPA's notice
requirement under § 256.65.
One State objected to the § 256.65
notice requirement arguing that the
requirement implicitly mandates a
hearing as well As written, § 256.65
does not require a hearing nor should
such a requirement be implied. A State
is, of course, free to hold a hearing on
each classification as a matter of policy.
Some commenters asserted the general
position that the use of the inventory
triggers a right to notice and hearing
opportunities. While EPA does not
believe that RCRA, the Administrative
Procedure Act or the Constitution
require such procedures, the States are
free to provide such an opportunity as a
matter of State law or policy.
3. Recommendation for compliance
schedules. A third significant change is
an addition to § 256.24
(Recommendations for Closing or
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47050 Federal Register / Vol. 46. No. 184 / Wednesday. September 23, 1981 / Rules and Regulations
Upgrading Open Dumps.) EPA
recommends that at the time the State
classifies a facility as an open dump it
consider developing appropriate
timetables or schedules to bring
responsible entities into compliance
with the open dumping prohibition. •
One commenter asserted that this. ;
change would slow down the
classification process. This concern
need not materialize, however, because
the provision is a recommendation
rather than a requirement. In any event,
EPA believes that a consideration of
compliance schedules early in the
planning process can enhance the
efficiency of the State's overall solid
waste management program.
One State expressed the concern that.
taken as a whole, these relatively minor
amendments to the Section 4002
Guidelines will disrupt the open dump
inventory and State solid waste
management planning processes. EPA
does not expect these amendments to be
disruptive because, the amendments do
not require any immediate or substantial
changes to State plans. The changes
promulgated today primarily affect plan
execution rather than substantive plan
content or bear upon the development of
the open dump inventory. Many States
are already providing notification to
owners and operators that would be
required by § 256.65. The change to
§ 256.60(a)(l) to include owners and
operators on the Agency's list only
requires entry of their names as
interested or affected parties. Since this
list was intended to accommodate new
names, EPA does not view these
particular additions as unexpected.
unreasonable or disruptive.
B. The Criteria
The regulations being promulgated
today modify the ground water, surface
water and air criteria. In addition, at die
request of one commenter, EPA is
modifying § 257.1 to clarify when and
how the criteria implement either
Section 4004(a) or Section 1008(a)(3) of
RCRA.
EPA is making two changes to the
ground-water criterion in § 257.3-4, both
of which involve the establishment of
alternative boundaries for measuring
compliance with the ground-water
standard. Under the existing regulation,
a facility or practice may not cause
contamination in the ground water
exceeding specified maximum
containment limits, measured at the
solid waste boundary or an alternative
boundary. An alternative boundary is
only available if the State has an
approved solid waste management plan
and the State determines that such a
change "would not result in
contamination of ground water which
may be needed or used for human
consumption."
Today's amendment eliminates the
provision limiting the alternative
boundary opportunity to those States
with approved solid waste management
plans. Many States that are currently
developing the inventory do not yet
have approved plans, and EPA does not
believe it necessary to constrain their
option to establish alternative
boundaries.
One commenter argued that this
amendment would allow a State with no
intention of developing an approvable
plan to set alternative boundaries for
solid waste facilities. While this is
possible. EPA does not consider the
consequences to be environmentally
detrimental because the regulations still
require the State to make the
substantive finding that the change
."would not result in contamination of
ground water which may be needed or
used for human consumption" before
setting an alternative boundary. One
State objected to the change, stating that
the change would result in unwarranted
and unnecessary ground-water
contamination. No supporting data were
provided. The commenter proposed that
EPA should defer action on the entire
proposal until it adopts an overall
ground-water protection strategy. EPA
intends to continue to develop a
consistent approach to ground-water
protection in its regulatory programs.
However, EPA does not believe it wise
to delay finalization of these relatively
minor changes in the solid waste
management planning program while
broader issues of regulatory philosophy
are being resolved.
Today's amendments also allow
defendants in open dumping suits to
argue, as a type of affirmative defense.
that an alternative boundary is
appropriate in determining its
compliance with the Criteria. While the
burden of proof is dearly on the
defendant in this situation, the court
may establish an alternative boundary
based on evidence that the change
"would not result in contamination of
ground water which may be needed or
used for human consumption"
considering the appropriate factors
listed in § 257.3-4(b)(l). (See the
Preamble to the proposed amendments,
at 45 FR 72710, for further discussion of
this issue.)
The commenters that addressed this
provision supported the change. One
commenter recommended that the
provision be modified to make clear that
"the court" means either a Federal or
State court. EPA believes that the
terminology "the court" in § 257.3-
4(b)(l) means any court, be it Federal or
State, that has jurisdiction over the
matter. Therefore, no change to the
provision is necessary.
Today's amendments also modify the
surface-water criterion of § 257.3-3. As
originally promulgated, that standard
would have made discharges violating
requirements under Section 402 or
Section 404 of the Clean Water Act open
dumping practices as well. A party
causing such a violation could
simultaneously be subject to penalties
under the CWA and a citizen suit to
enjoin "open dumping" under RCRA.
Today's amendment eliminates this
double liability. However, since the
open dump inventory classification for
purposes of the State planning program
does not impose legal sanctions under
RCRA, the Criteria retain the provision
that a violation of Section 402 or Section
404 makes a facility an open dump.
All but one commenter who
addressed this issue supported the
change. The commenter who opposed
argued that the Government should not
limit enforcement options. EPA believes
that the CWA enforcement mechanisms
are sufficient to handle violations under
Sections 402 and 404.
The issue of dual liability was also
raised with respect to § 257.3-7 which
provided that a facility or practice shall
not violate applicable requirements
developed under an approved State
Implementation Plan (SIP) under Section
110 of the Clean Air Act (CAA). Today's
amendments have deleted such a
violation as a practice constituting open
dumping, but retained it as a factor for
classifying open dumps. The rationale
for this change is basically the same as
that for the modification of the surface-
water criterion.
In the proposed amendment, EPA
clarified that the "open burning"
prohibition set forth in § 257.3-7(a) does
not extend to incinerators. Conventional
incinerators are treatment, not disposal
facilities. They do not typically involve
burning of waste in direct contact with
the land. Thus they are not covered by
the definition of "disposal" under
Section 1004(3). Trench or pit
incinerators, which do involve burning
of waste in direct contact with the land.
are covered by the Criteria (See 45 FR
72712.) One commenter was concerned
that the logic of "direct contact" with
the land as applied to incineration might
be misapplied. The commenter
suggested that ifcould be used to justify
the open burning of solid wastes in a pit.
pond, lagoon, etc. where an artificial
liner separates the waste from the soil.
The fact that a liner is used does not
change the essential character of pits.
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Federal Register / Vol. 46. No. 184 / Wednesday, September 23. 1981 / Rules and Regulations 47051
ponds or lagoons as disposal facilities.
Liners in this context are protective
measures for use in these disposal
facilities.
IV. Deadline for State Plan Submission
As originally promulgated. 1256.03(a)
required States to submit their adopted
plans to EPA within 18 months after
final promulgation of the Guidelines.
This deadline, not required by statute.
was included in the Guidelines to
encourage the States to act promptly to
develop their plans. While most States
actively pursued the development of
their plans, a few States submitted their
adopted plans within 18 months after
promulgation of the Guidelines.
EPA has decided to eliminate the
absolute 18-month deadline and replace
it with a requirement that the plan be
submitted within a "reasonable time"
after promulgation of the Guidelines.
EPA does not intend to invoke the
deadline provision against those States
that have made good faith efforts to
develop their plans.
V. Section 405 Guidelines
The litigation and subsequent
rulemaking on the Criteria have focused
on that regulation's effect under
Sections 4004(a) and 1008(a)(3) of RCRA.
The Criteria, however, also implement
Section 4pS(d) of the CWA. The Section
405(d) guidelines have a role under the
CWA that is analogous to that of the
Section 1008(a)(3) criteria under RCRA.
Section 405(e] makes it unlawful to
dispose of sewage sludge except in
accordance with the Section 405(d)
guidelines. This is similar to the
prohibition against open dumping under
RCRA.
EPA believes that the amendments
being made today should apply under
Section 405(d) in the same manner as
they do under Section 1008(a)(3). Thus
under today's amendments a violation
of Section 402 or Section 404 of the
CWA or Section 110 of the CAA will not
also be a violation of Section 40S(d) and
(e). Likewise the defendant in a suit
under Section 405 concerning ground-
water contamination will have the same
opportunity to demonstrate the
appropriateness of an alternative
boundary that would be available to
defendants in open dumping suits.
VI. Mining Overburden Exclusion
Several mining industry petitioners in
the litigation on these regulations urged
EPA to clarify the scope of the mining
overburden exclusion in § 257.1(c)(2) of
the Criteria. As a result. EPA proposed
modifications to that exclusion that
mirrored a similar exclusion, now under
review, contained in EPA's hazardous
waste regulations. (See 40 CFR
261.4(b)(3) and 260.10(a)(45).) Since the
exclusion raises similar issues under
both programs, EPA believes that any
changes to both sets of regulations
should be made at the same time. EPA is
not yet prepared to make such changes.
Therefore EPA is not today finalizing
any amendments to the overburden
exclusion in the Criteria.
VII. Regulatory Impact Analysis
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. The amendments to parts 256
and 257 being made today are not a
major rule under the terms of the
Executive Order. Since the amendments
are intended to simplify and increase
State flexibility in planning, and to
eliminate duplication of liability, these
amendments should result in both
savings and greater efficiency. States
are not required to use the partial plan
approval option and face, at most, very
minimal costs to provide owners and
operators notification that their facilities
are being considered for inclusion on the
Open Dump Inventory. Many States
already provide some form of
notification, and thus the requirement
does not add any costs in those States.
The principal costs associated with the
Guidelines and the Criteria were
imposed by the substantive provisions
in the original regulations promulgated
in 1979. The amendments being made
today will not have an effect remotely
close to $100 million, cause a major
increase in costs or prices, or have any
effect on competition, employment,
investment productivity, or innovation.
In fact, the amendments are more likely
to affect savings by simplifying existing
regulations.
This regulation was submitted to the
Office of Management and Budget for
review as required by Executive Order
12291.
Dated: September 15,1981.
Anne M. Gorsuch.
Administrator.
Title 40 CFR. Parts 256 and 257 are
amended as follows:
PART 256—GUIDELINES FOR
DEVELOPMENT AND
IMPLEMENTATION OF STATE SOLID
WASTE MANAGEMENT PLANS
1. The authority citation for Part 256
reads as follows:
Authority: Sec. 4002(b). Pub. L 94-580. 90
Slat. 2813(b) (42 U.S.C. 6942(b)).
2. In § 256.03. paragraph (a) is revised
and paragraph (f) is added as follows:
§ 25*6.03 State plan submission, adoption,
and revision.
«•***•*
(a) To be considered for approval, the
Stafe plan shall be submitted to EPA
within a reasonable time after final
promulgation of these guidelines.
• \ » « • •
(fjl States which are developing a
complete State plan may submit the
portion of the plan designed to satisfy
• the requirements of § 256.26 prior to
submission of the complete plan.
3. In § 256.04, paragraph (f) is added
as follows: *
§ 256.04 State plan approval, financial
assistance.
*****
(f) If a State submits to EPA the
portion of the plan by which entities
may, pursuant to § 256.26, obtain
timetables or schedules of compliance
for complying with the open dumping
prohibition, the Administrator shall
approve such portion of the plan if he
determines that:
(1) The portion submitted satisfies the
requirements of § 256.26;
(2) The State has the general legal
authority to issue and enforce
compliance schedules; and
(3) The remainder of the plan is being
developed in conformity with these
guidelines and will be completed within
a reasonable period of time.
In giving partial plan approval, the
Administrator shall specify in writing
the timetable for completion of the final
plan as required in paragraph (f](3) of
this section.
4. In § 256.60. paragraph (a)(l) is
revised as follows:
§ 256.60 Requirements for public
participation in State and substate plans.
(a) * * *
(1) Maintain a current list of agencies.
organizations, and individuals affected
by or interested in the plan, which shall
include any parties that request to be on
the list, the owner or operator of each
facility classified as an open dump and
any other parties which the State
determines to be affected by or
interested in the plan.
• * * * *
5. In § 256.24. paragraph (d) is added
as follows:
§ 256.24 Recommendations for closing or
upgrading open dumps.
* * • * *
(d) At the time of classification of
existing solid waste disposal facilities
pursuant to § 256.23, the State should
consider developing appropriate
timetables or schedules by which any
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47052 Federal Register / Vol. 46. No. 184 / Wednesday. September 23. 1981 / Rules and Regulations
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responsible party can be brought into
compliance with the open dumping
prohibition pursuant to §§ 256.26 and
256.27.
§ 256.64 (Amended and redesignated)
6. In § 256.64. paragraph (c) is
removed.
7. In Part 256, § 256.64 is redesignated
as § 256.65.
8. In Part 256, a new § 256.64 is added
as follows:
§ 256.64 Requirements for public
participation In the open dump Inventory.
(a) The State shall provide an
opportunity for public participation prior
to submission of any classification of a
facility as an open dump to the Federal
Government The State shall accomplish
this by providing notice as specified in
§ 258.64(b) or by using other State
administrative procedures which
provide equivalent public participation.
{b) The State may satisfy the
requirement of § 256.64(a) by providing
written notice of the availability of the
results of its classifications to all parties
on the list required under § 256.60(a)(l)
at least 30 days before initial submission
of these classifications to the Federal
Government For those parties on the
list required under § 256.60(a)(l) who
are owners or operators of facilities
classified as open dumps, such notice
shall indicate that the facility has been
so classified.
PART 257—CRITERIA FOR
CLASSIFICATION OF SOLID WASTE
DISPOSAL FACILITIES AND
PRACTICES
9. The authority citation for Part 257
reads as follows:
Authority: Sec. 1008(a)(3) and sec. 4004(a),
Pub. L. 94-580,90 Stat 2803 and 2815 (42
U.S.C. 6907(a)(3) and 6944{a)); sec. 405(d),
Pub. L. 95-217,91 Stat 1606 (33 U.S.C
I345(d}).
10. In § 257.1, paragraph (a) is revised
as follows:
§ 257.1 Scope and purpose.
(a) These criteria are for use under the
Resource Conservation and Recovery
Act (the Act) in determining which; solid
waste disposal facilities and practices
pose a reasonable probability of adverse
effects on health or the environment
Unless otherwise provided, these
criteria are adopted for purposes ot both
Section 1008(a}(3) and Section 4004fa) of
the Act. \
(1} Facilities failing to satisfy criteria
adopted for purposes of Section 4004(a)
will be considered open dumps for
purposes of State solid waste
management planning under the Act.
(2) Practices failing to satisfy criteria
adopted for purposes of Section
1008(a)(3) constitute open dumping,
which is prohibited under Section 4005
of the Act.
* * • • *
11. In S 257.3-3, paragraphs (a] and (b)
: are revised as follows:
§ 257.3-3 Surface water.
(a) For purposes of Section 4004(a) of
the Act a facility shall not cause a
discharge of pollutants into waters of
the United States that is in violation of
the requirements of the National
Pollutant Discharge Elimination System
(NPDES) under Section 402 of the Clean
Water Act as amended.
(b) For purposes of Section 4004(a) of
the Act a facility shall not cause a
discharge of dredged material or fill
material to waters of the United States
that is in violation of the requirements
under Section 404 of the Clean Water
Act as amended.
« * * * *
12. In § 257.3-4, paragraph (b] is
revised as follows:
§ 257.3-4 Ground water.
(b](l) For purposes of Section
1008(a](3) of the Act or Section 405(d] of
the CWA, a party charged with open
dumping or a violation of Section 405(e)
may demonstrate that compliance
should be determined at an alternative
boundary in lieu of the solid waste
boundary. The court shall establish such
an alternative boundary only if it finds
that such a change would not result in
contamination of ground water which
may be needed or used for human '
consumption. This finding shall be
based on analysis and consideration
all of the following factors that are
relevant:
(i) The hydrogeological characteristics
of the facility and surrounding land,
including any natural attenuation and
dilution characteristics of the aquifer;
(ii) The volume and physical and
chemical characteristics of the leachate:
(iii) The quantity, quality, and
direction of flow of ground water
underlying the facility;
(iv) The proximity and withdrawal
rates of ground-water users;
(v) The availability of alternative
drinking water supplies;
(vi) The existing quality of the ground
water, including other sources of
contamination and their cumulative
impacts on the ground water,
(vii) Public health, safety, and welfare
effects.
(2} For purposes of Sections 4004(a)
and 1008{a)(3), the State may establish
an alternative boundary for a facility to
be used in lieu of the solid waste
boundary only if it finds that such a
change would not result in the
contamination of ground water which
may be needed or used for human
consumption. Such a rinding shall be
based on an analysis and considerati
of all of the factors identified in
paragraph (b)(l) of this section that are
relevant.
•**•««
13. In § 257.3-7, paragraph (b) is
revised as follows:
§257.3-7 Air.
*****
(b) For purposes of Section 4004(a) of
the Act the facility shall not violate
applicable requirements developed
under a State Implementation Plan (SIP)
approved or promulgated by the
Administrator pursuant to Section 110 of
the Clean Air Act as amended.
|FR Doc 81-27560 Filed 9-22-8J:8:45 am)
BILLING CODE 6560-30-M
am
cht
-------
Thursday
September 13, 1979
Part IX
Environmental
Protection Agency
Criteria for Classification of Solid Waste
Disposal Facilities and Practices; Final,
Interim Final, and Proposed Regulations (i
corrected In the Federal Register of
September 21,1979)
-------
53438 Federal Register / VoJ 44. No. 179 / Thursday, September 13.1979 / Rules and Regulation
ENVIRONMENTAL PROTECTION .
AGENCY •••
40 CFR Part 257 t
(Docket Mo. 4004; FRU 1234-11
Criteria for Classification of Solid *
Waste Disposal FaclUtfe* and
Pfsjcilcss) i
. AOENCY: Environmental Protection \
Agency. I
ACTION: Final rule and interim rule.
SUMMARY: This regulation contains
minimum criteria for determining what
•olid waste disposal facilities and
practices pose a reasonable probability
of advene effects on health or the
environment Those facilities that.
violate the criteria are "open dumps" for
purposes of the State Solid Waste
Management planning effort supported
by EPA under Subtitle O of the Resource
Conservation and Recovery Act (RCRA
or the Act). The criteria also provide the
standard to be applied by the Federal
district courts in determining whether
• parties have engaged in acts that violate
the prohibition of open dumping, also
contained in Subtitle D of RCRA. The
criteria also partially fulfill the
requirement of Section 405 of the Clean
Water Act (CWA) to provide guidelines
for the disposal and utilization of
wastewater treatment plant sludge. Any
owner or operator of a publicly owned
treatment works must comply with these
criteria when disposing of sludge on the
land.
•mcnvi DATE October 15.1979.
DATE For purposes of the Interim Final
portions of the criteria (sections 257.3-5
. and 257.3-6(b)]. public comments will be
accepted until November 20.1979.
AOMns: Submit comments to: Mr. .
Emery Lazar. Docket 4004.1. Office of
Solid Waste (WH-564). EPA,
Washington. D.C. 20460.
POM FURTHER INFORMATION CONTACT;
Mr. Trnert V. DeCeare. Jr.. PJL, Office of
Solid Waste (WH-OoJJ. U.S.
Environmental Protection Agency. 401 M
Street. S.W., Washington. D.C 20460.
Telephone (202) 755-9120.
SUPPLEMENT AMY INFORMATION:
L Authority
This regulation is issued under
authority of Sections 1008(a)(3) and
4004(a) of the Solid Waste Disposal Act
as amended by the Resource
Conservation and Recovery Act of 1976.
42 U.S.C. 8907(a)(3) and 8944(a). as weU
as Section 405(d) of the Clean Water
Act as amended. 42 U.S.C. 345.
IL Background
This regulation was published in the
Federal Register in proposed form for
public review and comment on February
0,1978. The Agency held five public
hearing* and eleven public meetings to
discuss the proposed regulation and
received a substantial number of written
* comments on the proposal. Having
• considered the views of the public, the
Agency is now promulgating this
regulation in final form. This preamble
discusses some of the more significant
issues raised during the public comment
period and revisions made on the basis
of those comments.
The objectives of the Act are to
promote the protection of health and the
environment and to conserve valuable
material and energy resources. In order
to accomplish this, the Act sets forth a
national program to improve solid waste
management, including control of
hazardous wastes, resource
conservation, resource recovery, and
establishment of environmentally sound
•olid waste disposal practices. This is to
be carried out through a cooperative
effort among Federal, State, and
substate governments and private
enterprise.
Subtitle D of the Act fosters this
cooperative effort by providing for the
development of State and regional solid
waste management plans that involve
all three levels of government As the
Federal partner in this process, EPA
seeks, through regulations and financial
. assistance, to aid State initiatives in the
formulation and implementation of such
plans.
Section 4002(b) of the Act requires the
Administrator to promulgate Guidelines
for the Development and
Implementation of State Solid Waste
Management Plans. On July 31.1979,
EPA issued those guidelines (44 FR
45066). While those guidelines are to
consider a broad range of topics. Section
4003 of the Act identifies the minimum
requirements which State plans must
address. EPA provides financial
assistance to help the States develop
and implement their plans. Under
Section 4007. EPA reviews and approves
State plans which satisfy the minimum
requirements of Section 4003.
The State solid waste management
plan is the centerpiece of the Subtitle D
program. Through the plan the State
identifies a general strategy for
protecting public health and the
environment from adverse effects
associated with solid waste disposal for
encouraging resource recovery and
resource conservation, for providing
adequate disposal capacity in the State.
and for dealing with other issues
relevant to solid waste -nanagement
The plan must also set forth the
institutional arrangements that the State
will use to implement this strategy. (A
more detailed description of the
planning program is contained in the
Preamble accompanying the Section
4002(b) guidelines.)
A Sectwn 4004: Disposal Facility
Criteria
Under section 4004(a) of the Act the
Administrator is to promulgate
"regulations containing criteria for
determining which facilities shall be
classified as sanitary landfills and
which shall be classified as open dumps
• • *" The criteria establish the level of
protection necessary to provide that "no
reasonable probability of advene
effects on health or the environment"
will result from operation of the facility.
In setting these criteria EPA is providing
.a general definition of "sanitary landfill"
and "open dump". As part of their
planning programs, the States will
evaluate existing disposal facilities to
determine whether they comply with the
Section 4004 criteria. Those facilities
which do not satisfy the criteria are
"open dumps" under the Act. EPA will
under authority of Section 4005(b),
publish a list of open dumps in the
Federal Register.
The inventory of "open dumps" will
serve two major functions. First it will
inform the Congress and the public
about the extent of the problem
presented by disposal facilities which
do not adequately protect public health
and the environment Second, it will
provide an agenda for action by
identifying a set of problem facilities.
routinely used for disposal which
should be addressed by State solid
waste management plans in accordance
with Section 4003 of the Act.
Essentially, the inventory is a
planning tool which supports the State
planning effort The States must know
where the problem facilities are in order
to satisfy Sectiod 4003(3) which requires
that the plan "provide far the closing or
upgrading of ail existing open dumps
within the States ' * '."
B. Section 1008(a)(3): Open Dumping
Criteria
Under Section T008(a)(3) of the Act
the Administra*- : .s to publish
suggested guidelines that provide
minimum criteria "to define those solid
waste management practices which
constitute the open dumping of solid
waste or hazardous waste." Thus, these
criteria are to establish a broad
definition of the act of open dumping.
which is prohibited under Section
4005(c) of the Act.
The prohibition may be enforced in
Federal district court through the citizen
suit provision in Section 7002. The Act
does not give EPA authority to take legal
action against parties that may violate
the open dumping prohibition. The
application of the open dumping criteria
to the specific acts' of specific
-------
Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations 53439
individual* is a matter for the Federal
courts to determine in the context of
particular cases. Judicial review of
specific acts in the context of open
dumping suits should not be curJused
with State planning activities,
particularly the evaluation of disposal
facilities for the inventory of open
dumps. The inclusion of a facility in the
list of open dumps is not an
administrative determination by Ei A
that any particular parties are engaging
in prohibited acts of open dumping. (The
Preamble accompanying the Guidelines
for Development and Implementation of
State Solid Waste Management Plans
(44 PR 45066) provides a more detailed
explanation of thfo issue.) ' •
C Section 4O6(d): Sludge Disposal
Guideline*
Under Section 40S(d) of the dean
Water Act EPA issues guidelines for the
disposal and utilization of sludge. Under
Section 405(e) of the CWA owners and
operators of^publicly owned treatment
works (POTWs) must dispose of
sludges from such works in accordance
with those guidelines. Criteria designed
to avoid a reasonable probability of
adverse effects on health or the
environment from disposal of sludge on
land are clearly within the scope of this
provision of the CWA.
D. Copromulgation of the Criteria
The criteria which EPA promulgates
today an designed to fulfill or partially
fulfill the requirements of each of the
provisions discussed above. While all
three provisions embody different
implementation schemes, they all are
concerned with the adverse effects on
health or the environment that may be
caused by solid waste disposal
activities. Since there is an inherent
compatibility of purpose among the
three provisions. EPA has decided to
structure the criteria so they may be
used in all three contexts. EPA believes
thd i co-promulgation of regulations.
where possible, improves the quality of
its regulatory efforts by »iiminaH^g the
potential for inconsistencies among
similar regulations and by providing a
clear statement to the regulated
community of the standards to which
they will be held.
As an example of the compatibility
between provisions, the facility
classification criteria for purposes of tb?
State planning program can. and
probably should, be concerned with the
same set of environmental effects as the
criteria defining the prohibited act of
open dumping. Regardless of whether
one is evaluating facilities to aid in the
establishment of setting state planning
priorities or frT"rilning the acts of
specific individuals to determine legal
liability for open dumping, the same set
of environmental effects should be of
concern. At the same time, having a
single set of criteria for defining
unacceptable environmental effects
does not undermine the use of that
definition for different purposes.
It should be pointed out that these
criteria are not necessarily the only
guidelines to be promulgated under
Section 40S(d) of the CWA. These
criteria apply where the owners and
operators of POTW engage in the
placement of sludge on the land. Future
EPA guidelines on sludge disposal and
utilization may address incineration.
energy recovery, and give-away or sale -
of processed sludge.
m. General Approach
This regulation sets forth eight criteria
that address broad classes of health and
environmental effects that may be
caused by solid waste disposal
activities. The criteria an structured to
define unacceptable impacts, those that
present a "reasonable probability of
adverse effects on health or the
environment" In terms of the three
statutory provisions authorizing this
regulation, the criteria define an open
dump (RCRA Section 4004). the
minimum elements of prohibited open
dumping practices (RCRA Section
100B(a)(3)) and tfaeeffecta which must
be avoided by POTW owners and
operators (CWA Section 405).
EPA recognizes that these criteria will
be applied to a variety of situations and
that there is a need for flexibility in the
standards to allow them to be applied to
particular circumstances. During the
comment period some reviewers
expressed preference for greater
specificity in the criteria, including more
detailed design and operating
requirements. Others favored greater
flexibility and opportunity for
consideration of local, site-specific
conditions.
In developing the final criteria the
•Agency attempted to be as specific as
possible without-reducing the
opportunity for State and local solid
waste management and enforcement
agencies to take into account the site-
by-site variations and make
assessments based on local conditions.
Wherever possible EPA tried to set
specific performance standards that
define unacceptable environmental
effects. Such an approach should
provide a concise and measurable
means of determining compliance with
the criteria. However, in some situations
it was not possible to devise a
meaningful performance standard for
the environmental effect of concern.
given the lack of experience with such
an approach to regulation of solid .
waste.
Where specific performance
standards were not poss.ble, EPA
specified an operational technique to
achieve the desired level of protection.
, .-When that approach was necessary the
criteria maintain regulatory flexibility
by allowing for the use of alternative
techniques that achieve the same
general performance level. Parties
claiming that alternative approaches
provide protection equivalent to that of
methods described in the criteria have
the burden of establishing that fact
In addition EPA wishes to emphasize
that the standards established in the
criteria constitute minimum
requirements. These criteria do not pre-
empt other State and Federal
. .requirements. Nothing in the Act or the
' CWA precludes the imposition of
additional obligations under authority of
other laws on parties engaged in solid
waste disposal
Various commenters criticized EPA'a
general approach as being either too
restrictive or too lenient Some argued
that implementation of the criteria
would substantially reduce needed
disposal capacity. The Agency
recognizes that one of the most critical
problems in the solid waste
management field today is the lack of
acceptable disposal facilities due. in
part to public opposition to theirsiting.
However, this particular rulemaking
cannot deal directly with this problem.
The Agency is committed to
evaluating other means by which it can
help with the problem. Adequate
disposal capacity is essential
nationwide. Hopefully, implementation
of the criteria will increase the
credibility of disposal operations,
thereby aiding in reducing public
opposition to acceptable and needed
facilities.
Some cbmirnnters felt that the criteria
should be written very stringently in
order to provide an incentive for
initiation of resource recovery and
conservation practices. Other
commenters observed that, even with
increased levels of resource recovery
and conservation, disposal facilities
would continue to be required into the
foreseeable future: even resource
recovery facilities produce a residue
which-requires disposal. The Agency
believes that resource recovery and
conservation an desirable solid waste
management approaches which should
be actively pursued. However, the
purpose of the criteria is to define
disposal activities which pose no
reasonable probability of adverse
effects on health or the environment
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53440 Federal Register / VoL 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations
and the criteria have been developed
with that goal in mind. While the
implementation of these criteria may
make resource conservation and
recovery more economically
competitive, these regulations have not
been formulated simply to advance that
cause. Such an approach is not
authorized by the Act.
EPA also received comments
attacking the Agency's use of standards.
definitions and approaches developed
under other Federal environmental and
public health programs. They claimed
that incorporating these items into the
criteria extends those other programs
beyond their statutory authority. While
the use of particular Federal standards
will be discussed later in this Preamble
in the context of each criterion, a
general point should be made about the
use of approaches developed or
employed in other programs. The Act
requires that the criteria address
adverse health and environmental
effects of solid waste disposal whatever
those might be. The use of other Federal
Standards in responding to this broad
mandate is. in fact, quite desirable in
order to "'!"<'«!*• duplicative.
overlapping and conflicting policies and
programs. Unless it can be shown that
other Federal standards and approaches
are clearly inconsistent with the Act's
objectives, it is within the Agency's
discretion to use them, when
applicable, in writing RCRA regulations.
IV. The Criteria
A. Scope .
These criteria apply to the full range
of facilities and practices for "disposal"
of "solid waste", as those terms are
defused in Section 1004 of thf Act
Various commenters suggested the
exclusion or inclusion of specific types
of solid waste disposal activities. EPA
examined these suggestions in light of
the Act's definitions. Section 1006 of the
Act (which directs the Agency to avoid
duplicative regulatory programs}, the
Act's legislative history and the
objectives of Subtitle D. EPA has
concluded that the criteria apply to all
solid waste disposal with the following
exceptions:
1. The criteria do not apply to
agricultural wastes, including manures
and crap residues, returned to the soil as
fertilizers or soil conditioners. All other
disposal of agricultural wastes.
Including placement in a landfill or
surface impoundment is subject to these
criteria. This exclusion is based on the
House Report (H.R. Rep. No. 94-1491. '
9«th Cong^ 2nd Sess. 2(1978)) which
explicitly indicate* that agricultural
wastes returned to the soil are not to be
subject to the Act
2. The criteria do not. at this time,
apply to overburden from mining
operations intended for return to the
mine site. The House Report indicates
that this type of overburden is not to be
the immediate focus of the Act's
programs.
3. The criteria do not apply to
domestic sewage or treated domestic
sewage. However, the criteria do apply
to disposal of sludge resulting from the
treatment of domestic sewage. In
defining "solid waste" the Act
specifically excludes solid or dissolved
material in domestic sewage. Treated .
domestic sewage from which pollutants
have been removed in a wastewater
treatment plant is still considered to be
domestic sewage for purposes of the
Act Including such wastewater
effluents within the Act's scope is
particularly unnecessary because
existing EPA programs concerning
treatment of domestic sewage are
seeking to assure that these effluents are
disposed of in an environmentally sound
manner.
However, during the treatment of
domestic sewage, solid and dissolved
materials are removed'from the sewage
and collected as sludges. Typically.
these sludges an disposed of separately
from the treated sewage which passes
through the treatment plant The
language of Sections 1004(27) and
•1004(26A) indicate that sludge generated
by a wastewater treatment plant water
supply treatment plant or air pollution
control facility is solid waste for
purposes of the Act EPA believes that
while the Congress intended to exempt
treated sewage effluents from the Act's
provisions, it intended to include
sludges created by the operation of
treatment facilities. This approach is
consistent with Congressional intent
expt. ssed la Section 1002(b)(3) and the
legislative history, that the Act
specifically address the new solid waste
management problem that resulted from
effective implementation of programs
designed to protect the air. water and
other environmental resources.
With this interpretation a question is
raised about the operation of septic
tanks, a particular type of sewage
treatment device. The materials which
pass through the tank and are released
into drainage fields are analogous to the
treated sewage effluent passing through
a treatment plant and thus are not
considered solid waste. The materials
which settle to the bottom of the septic
tank and an subsequently removed for
disposal at some other facility an
analogous to the sludge created by the
operation of other sewage treatment
processes. Therefore, septic tank
pumpings fall within the Act's definition
of solid waste. f
4. The criteria do not apply to solid or
dissolved materials in irrigation return
flows. This exemption is clearly stated
in Section 1004(27) of the Act
5. The criteria do not apply to source.
special nuclear, or byproduct material
as defined by the Atomic Energy Act of
1954. as amended (68 Stat 923). This
exemption is stated in Section 1004(27)
of the Act
6. The criteria do not apply to
industrial discharges which are point
sources subject to permits under Section
402 of the Clean Water Act as amended.
In defining solid waste the Act
specifically exempts these discharges.
The principal purpose of this provision
is to assure that waters of the United
States (the jurisdictional concern of the
Clean Water Act) are not regulated
under this Act
7. The criteria do not apply to
facilities for the disposal of hazardous
wastes subject to Subtitle C of the Act
Section 3004 establishes the standards -
which will be applicable to such -
facilities. EPA's final regulations for its
hazardous waste program will delineate
the class of facilities subject to the
Subtitle C requirements.
8. The criteria do not apply to disposal
of solid waste by underground well
injection that is subject to regulations
(40 CFR Part 146) for the Underground
Injection Control Program (UICP) under
the Safe Drinking Water Act as
amended. 42 U.S.C. 3001, et seq. While
the subsurface emplacement of fluids
through * well (the activity regulated by
UICP) could also fall within the Act's
broad definition of disposal Section
1006 of the Act requires that EPA avoid
duplication with its other programs
(including those under the Safe Drinking
Water Act) in administering the Act.
Leaving regulation of underground well
injection to the UICP is consistent with
that mandate and is especially
appropriate since the UICP seeks to
achieve objectives similar to those of
the Act
B. Definitions (Section 2573]
General definitions which apply to all
the criteria are presented in § 257.2. The
section defines "disposal" "facility,"
"leachate." "open dump." "practice."
"sanitary landfill" "sludge." "solid
waste." and "state." Also definitions
that are only applicable to a particular
criteria are presented in that criteria
section.
EPA received many comments that
reflected a concern over t>
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a* wastewater treatment lagoons,
potable water treatment lagoons.
surface impoundments (pits, ponds,
lagoons, basins), mining wastddisposal
facilities, utility waste disposal facilities
and agricultural waste disposal
facilities. Hie Act does not define the
term "facility". EPA believes that the
term should be interpreted broadly
unless such an interpretation clearly
conflicts with other provisions or
objectives of the Act
After examining these requests for
exemptions in light of the Act and its
legislative history, EPA concluded that
there was no statutory basis for
excluding these types of facilities. All
such facilities could present a
reasonable probability of advene
effects on health or the environment
EPA does not have any basis for
determining that such facilities are not
-solid waste disposal facilities- for
purposes of the Act
Several commenters asked whether
the definition of "facility" would
encompass "backyard" disposal
practices such as home compost piles or
burning of household wastes. EPA does
not believe that Congress intended the
Subtitle O classification scheme to be
implemented at the household level.
Section 1004(27) refers to wastes from
"community activities". In addition, the
legislative history indicates at several
points that "municipal" wastes are of
concern under Subtitle D. Hie Act's
emphasis on "community'* or
"municipal" waste, indicates that the
Congress intended to focus on solid
waste managment at that level rather
than at the household level EPA
believes that "backyard" practices
should be controlled through State or
local nuisance and public health laws.
Some commenters suggested that
disposal facilities used by small
communities (especially small facilities
in rural areas) be excluded from
coverage due to the anticipated higher
unit cost (cost per capita or cost per ton
of waste) of compliance for such
facilities. The Agency found no basis for
such an exclusion. In fact such an
exclusion could foster the development
of additional small facilities in order to
escape the cost of compliance and,
cumulatively, could result in greater
environmental damage in rural areas.
Thus, the criteria apply to large and
small facilities, whether urban or rural,
because it is essential that all facilities
prevent adverse impacts on health and
the environment in accordance with the
criteria.
Less sophisticated and less costly
design and operational techniques,
however, may be applicable at smaller
facilities due to the smaller quantities of
waste disposed and reduced magnitude
of potential adverse effects. In addition,
small or rural communities may take
various approaches to reduce the per
capita cost burden and achieve
economy of scale through regionalized
collection and disposal systems, sharing
of equipment among facilities, or
operation of facilities only during
limited hours.
During the public comment period it
was suggested that there be less
stringent criteria for existing facilities
than for new facilities. In considering
this suggestion the Agency has found no
difference in the potential adverse
effects from existing as opposed to new,
facilities. With regard to implementation
of the criteria, however, the Act does
recognize the need to continue the
controlled use of "Hf^g facilities while
alternatives which comply with the
criteria an being developed. In taking
steps to close or upgrade existing open
dumps, a State may issue compliance
schedules that allow use of a disposal
facility while it is being upgraded or
while alternative disposal options are
being developed.
A few commenters also raised the
question of whether a junk yard, which
may buy or sell waste items, is a solid
waste disposal facility. While a junk
yard is clearly a "solid waste
management" facility under the Act
there is some question whether the
operation of a junk yard constitutes the
disposal of solid waste.
Under Section 1004(3) "disposal-
involves the placement of solid waste
into or on any land or water so that a
constituent of the waste may enter the
environment This entry of waste
materials into the environment is an
essential component of the Act*s
definition. As the Senate Report states,
"Disposal Is letting wastes out of
control" (Sen. Rept No. 94-98* 94th
Cong.. 2d Sess. 26 (1976)).
If a junk yard is operated in such a
way that no waste material enters the
environment then it is possible that it is
not a solid waste disposal facility. If
constituents of the waste, however, are
entering the environment (e.g. battery
acids Gram automobiles leaching into the
ground), then the junk yard would be a
disposal facility. It is up to the State to
determine whether particular junk yard
operations constitute disposal of solid
waste.
C. Reorganization of the Criteria
After .reviewing the comments EPA
has decided to change the format of two
portions of the criteria as they appeared
in the proposed regulation. The criteria
concerning environmentally sensitive
areas and disease have been
reorganized.
The proposed regulation had one
section that addressed the location of
disposal facilities in wetlands.
floodplains, permafrost areas, critical
habitats of endangered spedes, and
recharge zones of sole source aquifers.
all of which were categorized as
"environmentally sensitive areas". In
the Preamble to the proposed regulation
the Agency also requested comment on
other areas, specifically karst terrain
and active fault zones, for similar
consideration.
Environmentally sensitive areas are
no longer addressed in a separate
section. Criteria regarding floodplains
and critical habitats of endangered
species appear in independent sections
discussed later. Wetlands are addressed
in the section on surface water, since
wetlands are treated in the same
manner as surface waters under the
Clean Water Act. Concerns for recharge
zones of sole source aquifers are
directly related to those for ground-
water protection; thus, protection of sole
source aquifers has been incorporated
into the ground-water section of the
criteria.
Permafrost areas are no longer
addressed in the criteria. While EPA is
concerned with the effects of solid
waste disposal in permafrost areas,
there-are several reasons why it is not
appropriate to establish a national
criterion concerning permafrost.
Permafrost areas only occur in Alaska in
the United States. The State of Alaska
has authority to regulate solid waste
disposal and to protect permafrost. EPA
believes that the State's program is
adequate to protect these areas. Under
Section 6001 of the Act Federal facilities
must comply with applicable State solid
waste disposal requirements. Thus,
there should be full compliance with
those State disposal requirements
affecting permafrost areas. Moreover,
the criteria addressing floodplains.
surface water and ground water will
cover many of the environmental effects
of concern in such areas. Under these
circumstances it does not seem
necessary to establish separate
permafrost criteria at this time.
In response to the Agency's request
some commenters described risks
inherent in disposal of solid waste in
karst terrain and active fault zones. The
concerns raised pertained primarily to
ground water. The Agency believes that
these concerns are adequately
addressed by the ground-water criteria
and has not provided a separate criteria
for karst terrain or active fault zones.
In the proposed regulation the
criterion for disease just addressed the
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53442 Federal Register / Vol 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulation*
problem presented by dlseaae-cazrying
vectors. In the section addressing food-
chain craps, the proposed criteria
provided for controls to reduce the
likelihood for transmission of pathogens
from the solid waste to humans. Since
both provisions concerned the
prevention of disease, they have been
combined in § 257 3-6.
D. Floodplains flection 257.3-1)
Disposal of solid waste in floodplains
may have several significant adverse
impacts: (1) If not adequately protected,
wastes may be carried by flood waters
and flow Gram the site, affecting
downstream water quality and
structures: (2) filling in the floodplain
may restrict the flow of flood waters.
causing greater flooding upstream: and
(3) filling in the floodplain may reduce
the size and effectiveness of the flood-
flow retaining capacity of the floodplain.
which may cause a more rapid
movement of flood waters downstream.
resulting in higher flood levels and
greater flood damages downstream. For
these reasons it is generally desirable to
locate disposal facilities outside of
floodplains.
The proposed criteria required that a
facility not restrict the flow of the base
flood nor reduce the temporary water-
storage capacity of the floodplain. In
order to prevent 'increased flooding
upstream or downstream resulting from
the base flood In addition, the proposal
required that the facility be protected
against inundation by the base flood.
unless the facility is for land application
of solid waste for beneficial utilization
as agricultural soil conditioners or
In developing this criterion EPA
sought to comply with Executive Order
11988. "Floodplain Management" {42 TR
28951). which requires Federal agencies,
in carrying out their responsibilities, to
take actions to reduce the risk of flood
loss, to mtnimijn the impact of floods on
human safety, health and welfare, and
to restore and preserve the natural and
beneficial values served by floodplains.
In accordance with Executive Order
11988. EPA consulted with the Water
Resources Council and the Federal
Insurance Administration of the
Department of Housing and Urban
Development Both of these agencies
deal with floodplain management issues.
A few commenters questioned
whether floodplain concerns were
within the statutory scope of these
regulations. Clearly, improper disposal
of solid waste in a floodplain can have
adverse effects on health and the
environment EPA is not tfware of any
other Federal program that addresses
the particular environmental threat
presented by solid waste disposal
activities in floodplains. Therefore, there
is no question that these concerns are
within the purview of this regulation.
After evaluating the proposed
floodplains criterion in light of the
comments, EPA re-evaluated the
rationale for the proposed regulation.
There was an apparent contradiction in
the criterion between the requirement to
prevent any increased flooding and the
provision to protect against inundation.
As several commenters pointed out
compliance with one was likely to lead
to violation of the other. In addition EPA
concluded that it was not necessary to
eliminate any and all marginal
increases, however small hi flood levels
caused by disposal operations.
Moreover, not all inundation of disposal
facilities leads to adverse environmental
effects. Depending oil the waste material
there may be no advene downstream
effects; where such effects could occur,
proper control measures to prevent
washout of the waste materials (e.g.
diking) would be sufficient to avoid the
problem.
Therefore. EPA made the following
changes in the floodplain criterion:
1. The disposal facility or practice
should seek to avoid washout of solid
waste, rather than necessarily prevent
inundation of the waste. This change •
allows for the development of
management practices* or facility designs
that can avoid washout of the solid
waste without preventing all inundation
by flood waters. (Several commenters
indicated that such approaches wen
feasible.)
2. All of the requirements an linked to
an assessment of the hazard to human
life, wildlife, lnnd or water. This is
designed to avoid a situation where any
increase in flood levels attributable to
disposal activities or washout of waste
is automatically precluded EPA does
not believe that the incremental effect of
solid waste operations on floodplain
management justifies such a drastic
approach. In some cases, however,
disposal activities may present a
significant marginal increase in the risk
of flood damage. It is appropriate to
avoid such a risk. EPA cannot specify
for all situations what that unacceptable
risk will be. This issue must be resolved
on a case-by-case basis in the
implementation of these criteria.
3. The exception for land application
of solid waste for beneficial utilization
as an agricultural soil conditioner or
fertilizer has been eliminated EPA
believes that special exceptions for
classes of activities are no longer
necessary. In more dearly specifying the
performance objective for disposal in
floodplains. the criteria provide the
flexibility to allow continuation of those
activities that do not present health and
environmental hazards.
Some commenters questioned the use
of the 100-year base flood in defin-ng the
floodplain of concern. EPA believes that
this is an appropriate definition. The
100-year floodplain does not represent a
flood that will occur only once in 100
years. It is the flood which has a one
percent or greater chance of occurring in
any one year. Such a flood may occur
several times or never occur within a
given 100-year period In selecting the
100-year flood to define the floodplain of
concern EPA is maintaining consistency
with the approach in other Federal
programs and in Executive Order 11988.
Some commenters misinterpreted the
criteria as a prohibition against locating
facilities in floodplains. While areas
other than floodplains are often
preferable locations for disposal
facilities, the proposed criteria did not
provide such a prohibition. Certainly,
that point is even dearer in the
floodplain criterion issued today.
£1 Endangered and Threatened Species
(Section 2S73-2)
Solid waste disposal activities can
adversely affect endangered and
threatened wildlife by releasing toxic
materials into the environment and by
disrupting the ecosystems on which they
rely for food and shelter. Therefore, it is
appropriate for these criteria to contain
provisions designed to mitigate adverse
effects of solid waste disposal activities
on endangered and threatened species
of plants, fish or wildlife.
The proposed criterion was designed
to ensure that disposal activities did not
occur in the critical habitats of
endangered apedes unless it was
determined that the activities would not
jeopardize the continued existence of
endangered spedes. The proposal also
required the approval of disposal plans
by the Office of Endangered Species
(OES) in the Department of Interior
(DOI).
Under Section 7 of the Endangered
Spedes Act (ESA), as amended. 16
U.S.C 1538. all Federal agendes. in
consultation with the Secretary of the
Interior or the Secretary of Commerce,
are to utilize their authorities in
furtherance of the purposes of the ESA.
EPA held formal consultations with the
DOI and received a "biological opinion"
recommending changes in the criteria.
EPA considered this recommendation
from DOI and all public comments in
setting this criterion.
EPA has conduded that the criteria
should assure that no solid waste
disposal facilities or practices cause or
contribute to the taking of endangered
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or threatened specie*. Taking meant
harassing, harming, pursuing, hunting.
wounding, killing, trapping, capturing or
collecting, or attempting to engage in
such conduct In addition such
activities should not destroy or
adversely modify the critical habitats of
these species. EPA believes that this
criterion is clearly within the scope of
the Act and that it satisfies Agency
responsibility under the ESA.
Some commenters questioned EPA'9
authority to address effects on
endangered species in the criteria. The
Act gives EPA authority to set criteria
concerning the full range of health and
environmental effects resulting from
•olid waste disposal The taking of
endangered or threatened species by
•olid waste disposal activities is
certainly an environmental effect of
concern. In addition the ESA places a
responsibility on the Agency to use its
authority under the Act to mitigate such
effects.
The major change in this criterion
from what was contained in the
proposed regulation is the shift in
concern to the taking of endangered and
threatened species. The proposed
regulation focused on avoiding
modifications of critical habitats that
jeopardized the continued existence of a
spedes. After examining that approach
in light of the comments, EPA decided
that the "Jeopardize" language was
inappropriate for a definition that would
be applied to a vast number of site-
specific condition*. In deciding whether
an act or facility would jeopardize the
continued existence of a spedea, the
official* Implementing the criteria would
have to examine the marginal effect that
harm to particular member* of a spedes
would have on the national population
of that spedes. Particularly in the case
of the open dump inventory, which
involves the evaluation of thousands of
•olid waste disposal facilities, it would
be extremely difficult to implement a
"Jeopardize" standard.
A determination of whether disposal
activities are "taking" endangered
spedes is more readily applicable to the
site-specific situation* for which these
regulation* will be used. Official*
charged with implementing the criteria,
as well a* parties engaged in solid
waste disposal, can quickly determine
what is necessary to achieve
compliance. Such an approach is
consistent with EPA's general intent to
establish concise, measurable
performance standard* wherever
possible.
The use of the "talcing" concept does
not reflect an EPA belief that the ESA
requires such an approach. EPA's
obligation under Section 7 of the ESA. if
any, i* to assure that the criteria, which
provide a national definition of the
unacceptable environmental effects of
solid waste disposal, do not jeopardize
endangered spedes. Where those
criteria an applied by State agendes.
such implementation activities are not
subject to Section 7 because no Federal
action i* involved.
Some commenters suggested that in
complying with Section 7 EPA could not
set criteria applicable to non-Federal
parties that are more restrictive than
what Section 9 of the ESA now requires
of such parties. (Section 9 prohibits the
taking of endangered spedes.) EPA
rejects that argument The Act and
Section 7 of the ESA give EPA authority
to set criteria different than the
requirement* otherwise applicable
under Section 9.
EPA believe* that the best way to
ensure that national population* of
endangered and threatened spedes are
not jeopardized i* to avoid the
destruction of members of that
population in site-specific situations.
While the standard could have been
written several way* to accomplish that
objective. EPA believe* that preventing
the "taking" of endangered and
threatened spedes has several
advantage*. This approach will aid
coordination between solid waste and
endangered.spedes program* where
feasible. It also give* the regulated
community a uniform standard defining
it* responsibility in both contexts. The
"taking" definition I* broadly stated and
thus would encompass the variety of
advene effect* on endangered and
threatened spedes that could be caused
by solid waste disposal In it*
"biological opinion" OOI endorsed this
approach.
In the proposed regulation EPA only
addressed endangered spede*. Several
commenter* suggested that "threatened"
specie* identified by DOI also be
induded for consideration. EPA believes
that such threatened species of wildlife
are also deserving of protection and.
therefore: has induded them in the
criteria. Thus, the endangered and
threatened spedes of concern are those
listed under authority of Section 4 of the
ESA.
In endorsing the "taking" language,
DOFs "biological opinion" included
exceptions for activities covered by
permits under Section 10 of the ESA or
s'Jowed by Section 6(g)(2) of the ESA.
Section 10 authorizes the issuance of
permits for the taking of spedes "for
scientific purposes or to enhance the
propagation or survival of the affected
spedes." The operative portion of
Section 6(g)(2) makes the Section 9
prohibition of taking inapplicable in
states that have negotiated cooperative
agreement* with DOL Under
cooperative agreement designated State
officials may take endangered spedes
for conservation purposes. Since neither
of these situations seemed applicable to
solid waste disposal activities they have
not been induded in the criteria.
EPA has dedded to retain that part of
the proposed regulation that reflected a
concern for the wildlife habitats. Where
"critical" habitats of threatened or
endangered spedes have been identified
by DOI it is unacceptable under the Act
for solid waste disposal activities to '
destroy or adversely modify such
habitats. In setting this criterion EPA is
hot precluding all disposal in a critical
habitat area. Only when such disposal
appredably diminishes the likelihood of
the survival and recovery of threatened
or endangered spedes using the habitat
does a violation occur. The "biological
opinion" from DOI endorses this
approach.
EPA has dedded to drop that portion
of the proposed criteria which required
approval of disposal plan* by the Office
of Endangered Spedes. Department of
Interior. EPA agrees with the several
commenter*, induding OES. who said
that such a requirement was
inappropriate. The Act and the CWA
create the implementing mechanisms for
these criteria. While the OES may. and
probably should, be consulted on the
application of } 257.3-2 to particular
situations, the offidals responsible for
applying the criteria, rather than the
OES. must determine whether a
violation has occurred.
F. Surface Waters (Section 257.3-3)
It is essential that solid waste
activities not adversely affect the
quality of the nation's surface waters.
Rivers, lakes and streams are important
as sources of drinking water, as
recreational resources and as habitats
for a wide variety of fish and other
aquatic organisms. The-nation's coastal
and inland wetlands provide natural
flood and storm control sediment and
erosion control, recharge of acquifen.
natural purification of waters, and flow
stabilization of streams and rivers.
Wetland* produce nutrient* which
support complex ecosystems extending
into estuaries and streams well beyond
(Re marshes and wetland areas.
Wetland habitats support fish, shellfish.
mammals, waterfowl, and other wildlife
fauna and flora.
Solid waste disposal has led to
surface-water contamination from runoff
of leachate, accidental spills, and drift of
spray occurring at dumps, landfill*.
surface impoundments, farmlands, and
landspreading operations. In the
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53444 Federal Register / VoL 44. No. 179 / Thursday. September 13» 1979 / Rules and Regulation*
proposed criteria EPA (ought to
coordinate its surface water standards
under the Act with programs developed •
under the Clean Water Act (CWA) to
restore and maintain the integrity of the
waters of the United States (Including
wetlands.)
The proposed criteria required that
point source discharges of pollutants
comply with a National Pollutant
Discharge Elimination System (NPOES)
permit issued for the facility according
to Section 402 of the Clean Water Act A
separate section addressed wetlands, a
particular category of waters of the
United States. This section, which has
now teen combined with the other
surface water provisionvrequired mat
facilities not be located in wetlands
unless permits were obtained under
provisions of Section 402 and/or 404 of
the Clean Water Act The'proposed
criteria also required non-point source
discharges of pollutants to be prevented
or minimized. •
The final regulation maintains mis
general approach and has eliminated
those parts of the proposed regulation
that might have created conflicting
RCRA and CWA requirements
concerning the adverse effects of solid
waste disposal on surface waters. The
separate section for wetlands was
eliminated because they are treated like
all other surface waters under the CWA.
The provision affecting non-point source
discharges to surface water has been
linked more directly to applicable
requirements developed far State and
areawide water quality management
planning programs under Section 208 of
the CWA.
Under Section 1008 EPA is required to
integrate, tothe maximum extent
practicable, the provisions of the Act
with the Clean Water Act and other
statutes. Under the CWA. EPA conducts
programs designed "to restore and
maintain the chemical, physical and
biological integrity of the Nation's
. water." EPA believes that this goal la
also a legitimate objective for its
regulatory activity under the Act and
that in the spirit of Section-1000, EPA
should use its authority under the Act to *
see that the goals of the CWA are
achieved. Thus, in defining unacceptable
solidVaste disposal activities. EPA can
and should determine that facilities and
practices violating the Clean Water Act
cannot be acceptable for purposes of
RCRA.
Thus, in establishirj? »hs surface
water criterion EPA used concepts and
approaches used under the CWA. The
surface waters of concern are the waters
of the United State*, which include
"wetlands" meeting the Agency's and
the Corps of Engineers' definition of that
term. AH point source discharges of .
. pollutants must comply with
requirements for NPDES permits
pursuant to Section 402 of the' €WA.
Discharge of dredge or fin material- to
waters of the United States must comply
with requirement? ret permits
established pursuant to Section 404 of
the CWA. ("Requirements" under the
402 and 404 permit programs include the
general requirement to apply for such
permits, as well as the substantive
provisions of Issued permits.) Non-point
source pollution from solid waste
disposal activities must not be in
violation of legal requirements • •
established to tmplmnmit a water
quality management plan T"^*? Section
208 of the CWA, Water quality
standards developed to satisfy Section
309 of the CWA may be implemented
through cither NPDES permits* Section
404 .dredge and fill permits, or legal
requirements developed to implement •
Section 208 plan. .
Some commentars suggested that in
using a CWA-oaaad approach in these
regulations EPA was attempting to
regulate discharges to waters of the
United States under the Act This is
certainly not the intent or result of these
criteria. The implementation of CWA
programs will be left to those.
responsible for those programs. In these
criteria EPA is merely imMca.«faig that
where solid wast* activities violate the
CWA. as determined by officials
implementing mat law. EPA cannot
determine that those activities provide
adequate protection to public health *i"*
the environment foe purposes of RCRA.
Commenters also expressed concern
over the definition of "wetlands", '
arguing that man-made channels and
basins (particularly wastewater
treatment lagoons) that happen to
support vegetation should not be subject
to protection under this criterion. In
keeping with the goal of coordination.
EPA la accepting the approach taken
under the CWA, as expressed in the
recently issued NPDES regulations (44
FR 32854). Thus, waste treatment
lagoons or other waste treatment
systems that happen to support
vegetation are not waters of the United
States. (As indicated In the NPDES
regulations, cooling lakes and ponds are
generally within the definition of waters
of the United States, but certain kinds of
cooling ponds may be excluded.)
Several commenters questioned the
proposed inclusion of "surface runoff*
as a point source discharge of
pollutants. Under the existing NPDES
regulations the term "discharge of
pcllutanf is defined to include "• * •
surface runoff which is collected or
channelled by man." EPA wiO maintain
that approach in these criteria. All other
surface runoff is subject to applicable
requirements developed under section
208 plans for non-point source pollution.
Several public comments reflected
concern about what permits would be
necessary under the CWA for solid
waste disposal in wetlands. Diking or
other dredge or fill operations designed
to prepare an area within waters of the
United States for disposal of wastes
would require a 404 permit as a matter
of course. A question arises, however.
concerning the actual deposit of the
waste material into waters of the United
States. Such a discharge could be
treated as a discharge of pollutants
requiring a Section 402 NPDES permit or
as a discharge of dredged or fill material
requiring a 404 permit
Under previously issued regulations •
implementing the CWA (42 FR 37122).
where the "primary purpose" of the
discharge of waste material is for
disposal, rather than for filling an area.
the discharge is subject to .the NPDES
program.
Some'commenters suggested a need
for procedures establishing how NPDES
permits will be applied to solid waste
disposal In response the Agency is
developing policy guidance for this
permitting process. As of this writing, a
draft of this policy guidance. "NPDES
Permits for Solid Waste Disposal'
Facilities in Waters of the United
States—Policy Guidance Memorandum.
August 23,1978," has been distributed
for external review. A public meeting for
discussion of the draft policy guidance
memorandum was held on December 11.
1978. EPA is currently reviewing the
public comments submitted on this
issue.-EPA is also considering whether
solid waste disposal in wetlands is more
appropriately handled under the Section
404 permit program. EPA Intends to
explore this issue with the Corps of
Engineers.
EPA has dropped any reference to a
presumption against issuance of an
NPDES permit for discharge of solid
waste into wetlands. That reference.
contained as a comment in the proposed
regulation, reflected EPA's general belief
that disposal activities should not be
conducted in wetlands if other
alternatives exist The NPDES permit
however, will define the legal
responsibilities of parties engaging in
disposal of solid waste near or in waters
of the United States. If the requirements
of an applicable NPDES permit can be
satisfied, then there will be no added
"presumption? against the facility or
practice.
Commenters raised concerns over the
ability of NPDES permitting agencies to
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Federal Register / Vol. 44, No. 179 / Thursday. September 13. 1979 / Rules and Regulations 53445
process applications and issue permits
for point source discharges of pollutants
from solid waste disposal facilities. It
was noted that not many NPDES
permits have been issued to such
discharges.
It has been Agency policy to prioritize
issuance of NPDES permits based on the
potential advene environmental impact
of the discharge. However, all
discharges require NPDES permits, and
it is incumbent on the discharger to
apply for the NPDES permit. Generally.
no enforcement action is taken if
application for an NPDES permit has
been made, but the permit has not yet
been issued. Upon issuance, the
discharger must maintain compliance
with the NPDES permit Upon denial or
revocation of a permit, the discharge
must be discontinued.
In using the 208 planning
EPA has dropped the proposed
requirement to "prevent or min"
nonpoint source pollution from solid
waste disposal activity. Several
commenten were concerned that such •
requirement might duplicate or conflict
with provisions developed to implement
a State water quality management plan.
EPA shares that concern and. therefore.
has made the changes described above.
However. EPA is also aware that not all
208 plans will have addressed the non-
point source pollution problems
presented by solid waste disposal. EPA
intends to explore this problem further
to determine whether uniform national
guidance is needed and can be given on
how to handle this type of pollution
problem. If a set of standards can be
devised EPA will consider amending
these criteria.
Not all portions of a 208 plan will
necessarily be applicable to solid waste
disposal activities, and it will be up to
officials implementing the criteria to
make the appropriate determination.
The criteria are linked only to those
portions of the plan that have been
translated into legal requirements (Le.
statute, regulation, ordinance.
administrative orders.) This assures
clarity on what is required, avoiding
questions about how to comply with
broadly-stated policy statements.
C. Ground Water (Section 257.3-4)
Ground water, generally a high
quality, low cost, readily available
source of water, is the .Irinking water
source for at least one "ialf of the
population of the United Stains; often it
is the onlv economical and high quality
water source available. Ground water is
generally suitable >r human
consumption with little or no treatment
necessary.
Ground water has been contaminated •
by solid, waste disposal on a local basis
in many parts of the nation and on a
regional basis in some heavily
populated and industrialized areas.
precluding its use as drinking water.
Existing monitoring of ground-water
contamination is largely inadequate:
many known instances of contamination
have been discovered only after ground-
water users have been affected. The Act
and its legislative history clearly reflect
Congressional intent that protection of
ground water is. to be a prime concern of
the criteria.
The proposed criteria established
requirements for ground-water
protection based on the utilization of the
ground water. Ground-water utilization
was divided into two categories: Case I
addressed ground water currently used
or designated for use as drinking water
supplies or, ground water containing
10.000 millgrama per liter (mg/1) total
dissolved solids or less; and Case n
addressed ground water designated for
other uses.
For Case L the proposed criteria
required that the quality of ground water
beyond the disposal facility be
maintained for use as a drinking water
supply. The proposed criteria were
based on the "endangermenf approach
adopted from previously proposed
regulations for the Underground
Injection Control Program (41 PR 38728).
"Endangermenf was defined to mean
introduction of a contaminant that
would require additional treatment of
current or future drinking water supplies
or would otherwise make the water unfit
for human consumption. The proposed
criteria required that the disposal
facility not "endanger" Case I ground
water beyond the property boundary.
(Comments were specifically requested
on the use of other distances in lieu of or
in addition to the property boundary.)
For Case 0. States could, where
consistent with their authority.
designate ground water for uses other
than drinking water and would establish
the quality at which the ground water
was to be maintained consistent with
the designated use.
In order to predict as early as
possible, the potential for ground-water
endangennent the proposed criteria
required that ground water be monitored
so as to indicate the movement of
contaminants from the disposal facility
where endangennent was likely.
Contingency plans were required for
corrective actions to be taken in'the
event that an adverse impact was
indicated by the monitoring.
For sole source aquifers, the proposed
criteria required that facilities not be
located in the recharge zone unless
alternatives were not feasible and
unless "endangennent" warprevented.
Under the final ground-water criteria,
the facility or practice must not
contaminate an underground drinking
water source beyond the solid waste
boundary or an alternative boundary set
by the State. Contamination occurs
when leachate from the disposal activity
causes the concentrations of certain
pollutants in the ground water to either
(1) exceed the maximum contaminant
level (based on the primary drinking
water standards) specified for that
pollutant or (2) increase at all where the
background concentration of the
pollutant already exceeds the applicable
maximum contaminant level. An
underground drinking water source is an
aquifer currently supplying drinking
water for human consumption or an
aquifer in which the concentration of '
total dissolved solids is less than 10,000
milligrams per liter (mg/1). Generally,
the existence of contamination is
determined at the waste boundary.
However. States with approved solid
waste management plans may establish
an alternative boundary if, after
thorough examination of the site-specific
situation, a finding is made that an
adjustment of the boundary would not
result in contamination of ground water
needed or used for human consumption.
(1) Approach to Ground-water
Protection. A few commenters suggested
that the proposed regulation was
beyond EPA's authority becaue it
allegedly involved the establishment of
ambient ground-water standards. This
charge reflects a misunderstanding of
the approach taken in the proposed, as
well as the final regulation. EPA is not
regulating ground water with these
criteria: rather, EPA is setting standards
applicable to disposal of solid waste. In
defining the unacceptable effects of such
disposal on ground water, EPA has
concluded that solid waste activities
should not degrade ground water
beyond levels established to protect
human health. The criteria are designed
to achieve that objective.
EPA recognizes that ground-water
quality is important for other purposes
(e.g. for irrigation of plants, for its effect
on fragile ecosystems.) Differing
standcrds may be appropriate to protect
its usefulness for these other purposes.
At this time, however, EPA has decided
to define "contamination" in terms of
the water's use as a drinking water
source. EPA believes that the prevention
of adverse human health effects from
direct consumption of ground water.
should be the first among several
objectives in protecting ground-water
quality. Moreover, the Agency has
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53448 Federal Regiajer / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations
developed standards for drinking water
but has not established standards for
other uses.
These criteria reflect EPA's concern •
for both present and future users of
ground water. A significant number of
people in the country take their drinking
water directly from ground-water
resources. EPA expects that such direct
use will continue in the future. In
defining unacceptable solid waste
disposal activities, these criteria cannot
be based only on current patterns of
ground-water use. Potential future users
of the aquifer must be considered.
EPA believes that solid waste
activities should not be allowed to cause
underground drinking water sources to
exceed established drinking water
standards. Future users of the aquifer
will not be protected unless such an
approach is taken. Where maximum
contaminant levels have already been
exceeded due to other conditions or
actions affecting the aquifer, solid waste
activities should not be allowed to
increase the risk of damage to present or
future users of the aquifer.
(2) Contaminants of Concern.
Commenten stated that the
"endangerment" standard in the
proposed regulation was vague.
especially since it did not specify
contaminants that would make more
extensive treatment necessary or
otherwise make the water unfit for
human consumption.-Some felt this
approach would allow too much
contamination, given the lack of
certainty regarding toxicity of many
contaminants and the state-of-the-art of
monitoring and water treatment Other*
stated that it would require facility
operators to demonstrate protection
from a myriad of substances, that the
levels to which those substances should
be tolerated was not defined, that the
standard was based oa unspecified
treatment and changing technology, and
that the capability of existing treatment
is a function of too many parameters. In
order to respond to these comments the
Agency explored various lists of
contaminants upon which to base the
criteria.
Several reviewers supported the
proposed criteria's use of the National
Interim Primary Drinking Water
Regulation (NIPDWR) in the definition
of "endangerment". Some reviewers
pointed out however, that the list of
contaminants in the NIPDWR (40 CFR
Part 141) was not created to serve as
ground-water quality standards, and
thai it does not include all potentially
harmful substances which might be
associated with leachate from solid
waste.
EPA recognizes that the NIPDWR lists.
only those parameters commonly found
. in public drinking water supplies. Other
substances which may be harmful to
human health were not included in Part
141 due to their relatively rare
occurrence in drinking water systems,
the unsuitability of analytical methods.
the high costs of monitoring, or the lack
of toxicity data. For example, cyanide
was not listed in the NIPDWR because
of its low rate of occurrence. Several
potentially dangerous substances which
were excluded from the NIPDWR are
present in leachate from waste disposal
There is no doubt however, that the
contaminants identified in the NIPDWR'
are appropriate for consideration in the
criteria. Generally, no commenters
opposed the inclusion of any listed
contaminant in this regulation. The one '
exception is the manmade radionudides
identified in the NIPDWR. These
substance* fall within the class of
radioactive substances excluded from
the Act's definition of solid waste and.
thus, the leaching of these materials into
ground water should not-be addressed
by these criteria.
EPA has evidence that all of the
contaminants identified in the NIPDWR
have been hi wastes covered by these
criteria and that such materials are
likely to enter ground-water supplies.
Therefore, while it may be advisable to
expand the list of contaminants covered
by the criteria as new information is
developed by the Agency, it is certainly
appropriate! to use the contaminants
identified in the NIPDWR in the criteria
at this time.
The Agency has also explored the use
of the National Secondary Drinking
Water Regulations (NSDWR) in defining
maximum contaminant levels. The
NSDWR (40 CFR Part 143) represent the
Agency's best judgment on the
standards necessary to protect
underground drinking.water supplies
from adverse odor, taste, color and other
aesthetic changes that would make the
water unfit for human consumption. EPA
believes that this is a serious concern
which deserves consideration in the
criteria. In addition, many of the
substances listed in the NSDWR often
occur together with other substances in
leachate which can be injurious to
health.
However, EPA has decided not to
include the contaminants identified in
the NSDWR in the criteria at this time. It
was not clear in the proposed regulation
that EPA was considering their use for
purposes .of the criteria. To avoid any '
question about the adequacy of
opportunity to comment on the use of
the NSDWR in the criteria. EPA has
decided to specifically seek public
comment on this issue. Thus. EPA is also
issuing today a proposed amendment to
the criteria which would add the
maximum contaminant levels in the
NSDWR to the definition of ground-
water "contamination."
Two other sets of pollution
parameters were considered for
inclusion in these criteria: the Quality
Criteria for Water (EPA 1976) and the
list of toxic pollutants referenced in
Section 307(a)(l) of the Clean Water,
Act as amended.
The publication Quality Criteria (or
Water recommends levels for water
quality in accord with the objectives in
Section 101(a) and the requirements of
Section 304(a) of the Clean Water Act
The primary purpose of that publication
is to. recommend levels for surface water
quality that will provide for the •
protection and propagation of fish and
other aquatic life and for recreation.
Although recommended levels are also
presented for domestic water supply,
and for agricultural and industrial use.
ground water was not a major
consideration.
Quality Criteria for Water lists most
of the substances in Parts 141 and 143.
Several of the additional parameters
listed are only of interest in surface
water protection, such as mixing zones
(one third the width of a stream. 10
percent of the area of a lake, etc.),
temperature, and suspended solids.
WhUe several health related substances .
that could be present in leachate are
listed (e.g.. boron, beryllium, cyanide.
nickel and several insecticides and
other organics). the recommended limits
are specified for aquatic life protection
and these are not appropriate for ground
water. Furthermore, the recommended
limits were written to be guidance in
developing standards, not to be used as
standards themselves. Therefore. EPA
decided that this list was inappropriate
for these criteria.
Under Section 307 of the CWA the
Agency may establish either technology-
based or stricter health-based standards
for toxic pollutants identified under
Section 307(a)(l). EPA is investigating
the appropriateness of using the health-
based standards in the criteria. Such
substances as aldrin/dieldrin. DDT.
endrin. toxaphene. benzidine and
polychlorinated biphenyls (PCB's) are
now subject to section 307 standards.
EPA may be establishing such standards
for other pollutants some time in the
future. At this time, however, for
purposes of these criteria. EPA will rely
only on established drinking water
standards.
(3) Levels of Contamination. While
the design of the ground-water criteria is
similar to the "endangerment" approach
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Federal Register / Vol. 44. No. 179. /. Thursday. September 13, 1979 / Rules and Regulations 53447
of the Underground Injection Control
Prcjram under the Safe Drinking Water
Act it provides for greater specificity
and does not use the exact wording of
that program or statute. Therefore, to
avoid confusion the term
"en'.Ungerment" is no longer used in the
criteria. Instead, the word
"contaminate" has been employed. A
facility "contaminates" ground-water if
it intro'iLces a substance thai WOM!C
cause:
(a) The concentration of that
substance in the ground water to exceed
specified maximum contaminant levels,
or
(bj An increase in the concentration of
that substance in the ground water
where the existing concentration of that
substance exceeds the specified
maximum contaminant level
The first part of the above, definition ia
intended to protect water that can be.
used as drinking water without
treatment The second part is intended
to protect ground water already at or
above the maximum contaminant level
by preventing introduction of substances
that would exacerbate the problem.
Many comments were received on
levels of contamination. Some suggested
using the maximum contaminant levels
(MCL's) in the National Primary and
Secondary Drinking Water Regulations:
others suggested using higher limits or
using lower limits. Some reviewers
suggested varying the levels with the
background quality or the potential use
of the ground water.
The reasons given fur adopting higher
allowable levels, or more lenient
standards, (than the MCL's) included
contention (1) that the increased cost of
land disposal would b< greater than the
value of the threatened resource; (2) that
the more efficient approach for some of
the substances was to remove them
from the water supply by treatment after
contamination; and (3] that some of the
Secondary MCL's are commonly
exceeded in ambient or native ground-
water, thereby effectively resulting in a
non-degradation standard for those
aquifers. EPA sees no reason to doubt
that some people will continue to
consume ground water directly without
treatment That portion of the public
should be protected from advene effect*
(as defined by the drinking writer
standards) caused by solid waste
leachate entering their drinking water.
In some situations protection of the
public will require non-degradation of
an aquifer. The Act does not call for a
balancing of the coats of disposal
against the "value" of ground-water
resource*. EPA believes that this
criterion represents a reasonable
approach to ground-water protection. It
allows foi the use of natural
mechanisms (e.g. soil attenuation,
diffusion -of contaminants in the aquifer)
to reducerthe risk of adverse health
e: facts without compromising the
gerferal objective of protecting drinking
wajer supplies.
"5he reasons given for more stringent
liai'ts included: (1) Land disposal
faclities are but one of several sources
of ground-water contamination, and
each source contributes to the overall
rise in contaminant levels, (2) future
research may find that lower levels are
necessary to adequately protect health,
(3) some agricultural, industrial and
other important uses of ground water
may be impaired, and (4) since ground
water ia often consumed without
treatment more stringent limits would
require less reliance on programs to
monitor and to require treatment before
domestic usage.
Generally, EPA has not written more
stringent standards because existing
information does not indicate that such
standards are needed to protect public
health. Future research results might of
course, justify changing the criteria. As
discussed earlier EPA does not now
have the scientific basis for setting
stricter standards designed to protect
ground-water's use for non-drinking
water purposes. The standard does
recognize that an aquifer may be
polluted by several sources. Where
existing ground-water quality levels
exceed the MCL's, the solid waste
activity may not degrade ground-water
quality at all No matter what the
standard, the need for monitoring must
be determined on a case-by-case basis.
and it seems doubtful that differing
standards would change that need
Some reviewers mentioned that
relying only oh upper water quality
limits results in more stringent
requirements for protection of
contaminated water than for
uncontaminated water (i.e. facilities
over uncontaminated waters could
introduce substances up to the
maximum contaminant levels, while
facilities over contaminated waters
could not introduce any substance that
would increase contaminant levels).
While this is a possible result of the
standard. EPA does not believe that the
health risk justifies a complete non-
degradation standard.
In adapting the NIPDWR for the
criteria a few modifications were
rficessary. As indicated earlier the
standards for man-made radionudides
were not included because the statutory
definition of solid waste excludes such
materials from the Act's scope. The
contaminant level for coliform bacteria
had to be modified because under the
NIPDWR the MCL varied somewhat
depending on sampling frequency and
community size. EPA assumed that
sampling of ground water around
disposal sites ..ould be less frequent
than in a public water system, and so
the NIPDWR coliform standard related
to the least frequent sampling regimen
was selected for the criteria. Also, the
criteria do not include the NIPDWR limit
for turbidity, since that iiir.it was
established for surface water supplies.
(4) Where the Standard is Applied.
Another concern regarding the ground-
water criterion is the issue of where the
standard is to be applied (i.e. at what
point in the aquifer does contamination
from the facility or practice constitute
non-compliance). In the proposed
criteria, the point of application was at
the facility property boundary. The
rationale for applying the standard at
the property boundary was that it would
provide for protection of off-site ground
water while affording the opportunity
for natural soil attenuation and
dispersion and dilution of leachate in
ground water underlying the area
designated for waste deposition (i.e.
within the facility).
However, the proposed criteria
recognized that monitoring and control
of leachate within the property
boundary would generally be necessary
in order to assure that the standard at
the property bountary would be met
Therefore, there also were proposed
operational requirements including
monitoring of ground water, prediction
and control of leachate migration,
collection and removal of leachate and
prevention of water infiltration.
Commenters indicated two potential
shortcomings of the facility property
boundary approach: (1) That future
owners of the facility property might use
contaminated ground water underlying
the facility as drinking water and (2)
that if the facility property were very
large, great expanses of ground water .„
could be contaminated and purchase of
additional property could be used to
circumvent the intent EPA agrees that
such results could occur.
Commenters also expressed concern
that the operational controls and
monitoring provisions were vague and
could be meaningful only if specified on
a site-by-site basis, rather than
generally prescribed in a regulation of
national applicability. Commenters also
described these operational provisions
as inappropriate to a regulation which
must delineate acceptable performance
levels.
The Agency considered use of other
distance specifications in lieu of the
property boundary in order to try to
respond to reviewers' concerns about
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53448 Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations
the potential for contamination of large
expanses of ground water. The proposed
criteria requested comments on *
alternative distances and the rationale^
for specification of such distances.
Various distances were suggested in the
public comments; however, there was no
basis presented for selection of fine
distance over another. While there is ai
rationale for limiting migration of \
contamination to within the areas to bej
used for waste disposal in order to
protect neighbors who may use the
ground water untreated as a drinking
water supply, there is no rationale for
limiting migration to any particular
distance.
In evaluating this issue EPA
recognized that the point of application
of the standard must be mindful of the
ablility to monitor at that point Ideally.
the best way to protect present and
future users of an aquifer is to assure
that drinking water standards are not
violated anywhere in the aquifer.
including the area immediately under
the waste material
However, any attempt to monitor
directly under the waste presents two
major difficulties. First an
environmental risk may be posed by the
installation of monitoring wells through
the waste material or in areas where
waste will be deposited. These wells
may become conduits for direct flow of
waste constituents (e.g. leachate) into
the aquifer. While it may be
theoretically possible to construct a well
that doesn't allow such infiltration, the
technology for this has not been
sufficiently demonstrated that EPA
would want to encourage this practice
on a national scale. Secondly, the
immediate proximity of waste to the
well in conjunction with the "conduit"
phenomenon, would undermine the
utility of the n> Tutoring well Samples
extracted would not be likely to be
representative of the aquifer, rather.
they would be likely to contain
concentrated leachate. overestimating
the contamination of the aquifer.
EPA also examined the possibility of
other fixed distances from the center of
the waste area. This approach was
rejected because it was impossible to
establish a uniform distance that would
be meaningful -for the vast number of
situations to which this standard
applied. In some instances a fixed
distance would mean that monitoring
wells would still be placed through
waste material. A longer distance might.
in some cases, put the point of
measurement beyond the area of likely
placement of drinking water wells.
After examining all of these
approaches EPA concluded that the
solid waste boundary is the appropriate
point for application of the standard.
The solid waste boundary is intended to
be taken as the outermost perimeter of
the solid waste as it would exist at
completion of the disposal activity. With
that as the point of measurement
ground-water contamination will be
detected as soon as possible without
presenting the risks inherent in
monitoring under the waste. Likewise, it
avoids the problem of guessing the
distance at which a potentially affected
party is likely to put a drinking water
well (The only assumption is that
drinking water won't be taken from
wells drilled directly through the area of
solid waste deposition.)
In most cases, for disposal facilities,
the solid waste boundary would be the
boundary of the solid waste as shown
on the design and operating plans which
are provided to and approved by the
State agency as part of the State's
facility permitting or certification
program. Where such plans do not exist
to designate the perimeter at
completion, especially for the practice of
indiscriminate or unauthorized disposal,
the perimeter at completion can only be
taken as the current boundary of the
deposited waste.
With this approach to the point of
application for the MCL's, the
monitoring requirements are relatively
clear. Monitoring wells should be placed
so as to avoid their becoming conduits
for waste materials. Unaaturated and
saturated zones underlying the area of
the facility designated for waste
deposition (i.e. within the solid waste
boundary) may be employed for
attenuation or control of leachate
migration, but contamination of
underground drinking water sources
outside of these zones constitutes non-
compliance with the criteria.
The point of application of the MCL's
may be modified under certain *
circumstances. EPA recognizes that
hydrogeological conditions, property
rights or legdl arrangements concerning
an aquifer may limit the ability of the
public to directly use some or any part
of a particular aquifer as a drinking
water source. EPA believes that some
flexibility is needed in the criteria to
provide for such situations. Therefore,
the criteria allow the State to modify the
point for application of the MCL's.
To prevent this from becoming a
major loophole, the criteria establish
limits to this flexibility. Only States with
approved solid waste management .
plans may modify the point of
measurement This may only occur
whero 'he State has conducted a
thorough examination of the site-specific
situation and has made a specific
Ending that establishment of the
alternative boundary would not result in
contamination of ground water needed
or used for human consumption. The
examination leading to the finding
should include the opportunity :or public
participation. The criteria specify the
key factors that must go into this
determination.
The proposed criteria would have
allowed a State to designate an aquifer
as a Case II aquifer (an iqu.fer
designated for use other than as a
drinking water supply). For an aquifer so
designated, the proposed criteria
required the ground water to be
maintained at a quality as specified by
the State. Several commenters
challenged the use of this approach.
Some argued that given the
uncertainties in future drinking water
needs, all potentially usable drinking
water should be conserved. They also
pointed out that there was inadequate
data on ground-water quantity, quality
and use projections to make such
designations and that institutions and
authorities to make such trade-offs are
non-existent Commenters also
suggested that it was improper for the
criteria to defer totally to State
standards for designated aquifers.
EPA generally agrees with the
comments. These and other factors lead
EPA to drop the aquifer designation
provision and rely on the alternative
boundary approach as the means for
allowing flexible application of the
criteria.
(5) Underground Drinking Water
Source. The final criteria maintain the
general approach found in.the proposed
regulation. The Deference to aquifers
that "may be designated by the State for
future use as a drinking water supply"
has been deleted. EPA concluded that
this was unnecessarily vague. Any
future drinking water source would be
likely to fall within the second portion of
the definition (aquifers in which ground
water contains less than 10.000 mg/1
total dissolved solids).
Some commenters questioned the use
of the 10,000 mg/1 total dissolved solids
measure for usable aquifers. It is the
Agency's general policy that ground-
water resources below that
concentration be protected for possible
use as a drinking water source. This
policy is based on the Safe Drinking
Water Act and its legislative history
which reflects clear Congressional
intent that aquifers in that class deserve
protection.
(6) Sale Source Aquifers. These
aquifers are those which the
Administrator specifically designates
under authority of Section 1424(e) of the
Safe Drinking Water Act (Pub. L 93-523;
42 U.S.C. 300f. 300h-3(c); 88 Stat 1860 et
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Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations 53449
seq.). This provision of the Safe Drinking
Water Act is administered through
regulations proposed as 40 CFR Part 14tt.
As applied through RCRA, the Agency's
concern for (he impact o. disposal
facilities on these aquifers is not
different from that for other
underground drinking water sources as
defined in the criteria. Therefore, for
clarity and consistency, this area of the
proposed criteria has now been
incorporated into the ground-water
section. Rather than addressing the
location of facilities in recharge zones of
such aquifers (an operational standard),
the criteria apply the performance
standard described above for all .
underground drinking water sources.
including sole or principal drinking
water sources, regardless of location.
H. Application To Land Used For The
Production Of Food-Chain Crops
(Section 237.3-S)
The conservation of the nation's
natural resources is one of the Agency's
highest priorities. The application of
sewage sludge, as well as other solid
wastes, to the land surface or
incorporation within the root zone of
crops may provide significant benefit
through the addition of organic matter.
nitrogen, phosphorus and certain other
essential trace elements to the soil.
Specifically, land application of solid
waste coupled with good management
techniques for enhancement of parks
and forests and reclamation of poor or
damaged terrain is a desirable land
management technique.
Application of solid waste to
agricultural lands may also be an
environmentally acceptable method of
disposal. However, when improperly
managed, the application of solid waste
to agricultural lands can create a
potential threat to the human food chain
through the entry of toxic elements.
compounds, and pathogens into the diet
(It should be noted iha: pathogens are
covered under the Disease section of the
criteria.) In developing these criteria, the
Agency attempted to achieve the
benefits of resource conservation while
at the same time providing for protection
of public health and the environment In
recognition of the above public health
concerns, the Agency prefers the
application of solid waste to non-food-
chain land rather than to agricultural
lands. However, the Agency believes
that food-chain land application
practices which comply with these
criteria will pose no reasonable
probability of adverse effects on public
health or the environment
This section is only concerned with
disposal activities affecting food-chain
crops. The other sections of the criteria
apply to all disposal activities, including
those occurring on lands producing
food-chain crops. However, solid waste
facilities and practices are only affected
by this section if the site of disposal is
also a field for production of food-chain
crops.
In their role as guidelines under ' "
Section 405 of the Clean Water Act the
criteria define the responsibility of
owners and operators of POTWs when
they apply sewage sludge directly to the
land. In an effort to encourage the
beneficial use of sludge in small
communities EPA is concerned that
these criteria could present an
unwarranted administrative burden
upon such communities. Therefore. EPA
will explore the possibility of reducing
monitoring and recordkeeping
requirements for those POTWs with
•mall design capacity which do not have
significant Industrial Inflow and which
generate a sludge with a low
contaminant level. Such reduced
requirements for facilities which apply
sludge to land used for the production of
food-chain crops would be a part of
future regulations or guidance designed
to implement Section 405. EPA is
considering using a design capacity uf
1.0 million gallons or less per day to
define "small" facilities and cadmium
concentrations of less than 25 mg/kg
(dry weight) to define "low-
contaminanf sludge.
This section of the criteria is being
issued today as an "interim final"
regulation. This means that while the
regulation is "final" and legally
enforceable. EPA is seeking further
public comment on the regulation. If
changes are warranted by suggestions
or new information generated during the
public comment period, EPA is quite
willing to modify this section.
The "interim final" approach has been
recognized by the courts as a
permissible means for EPA to use when
trying to satisfy the competing demands
placed on its rulemaking efforts.
Particularly where EPA is under court
order to issue regulations by certain
dates, this approach has been used to
satisfy the spirit of the court's order
without curtailing opportunity for
additional public participation in the
rulemaking process.
These criteria are subject to the
mandate of the U.S. District Court for
the District of Columbia in State of
Illinois v. Castle, No. 78-1669 (D.D.C
Jan. 3.1979). Under the order of that
court the criteria were to be issued by
July 31.1979. and EPA intends to satisfy
the spirit of that order. EPA believes
that the standards established in this
section provide a reasonable approach
to the environmental problem at issue.
However, the public has not had a full
opportunity to comment on some of the
U'chmcal data and analyses supporting
this portion of the regulation. The
"interim fin.il" approach is appropriate
because it allows the Agency to
accommodate these two competing
interests. It achieves substantial
compliance with the court mandate
while allowing full public participation
in the rulemaking effort.
As proposed, this section of the
criteria addressed four general
categories of pollutants: (1) Cadmium:
(21 pathogens: (3) pesticides and
persistent organics; (4) ingestion of toxic
organic chemicals and heavy metals
(especially PCFs and lead). In the final
regulation this section addresses
cadmium and PCB's. Pathogens are
considered under the disease criterion
(9 257.3-6). Lead, pesticides and
persistent organics will not be
addressed at this time because current
information available to the Agency is
inadequate to support specific
standards. EPA will investigate the
possibility of adding more pollutants to
the criteria at a later date.
(1) Cadmium.—The proposed criteria
included two approaches for the land
application of solid wastes containing
cadmium. The first approach
incorporated four site management
controls: Control of the pH of the solid
waste and soil mixture: annual cadmium
application limits that were reduced
over time: cumulative cadmium
application limits based on soil cation '
exchange capacity (CEC); and a
restriction on the cadmium
concentration in solid wastes applied to
facilities where tobacco, leafy
vegetables and root crops are grown.
The second approach required
comparability of the cadmium content of
crops and meats marketed for human
consumption to the cadmium content of
similar crops and meats produced
locally where solid waste had not been
applied. Also, a contingency plan was
required which identified alternative
courses of action that would be taken if
the cadmium levels were not found to be
comparable. This approach was only
available to facilities possessing the
necessary resources and expertise to
adequately manage and monitor their
operations to assure such comparability.
In the final regulation, application of
solid waste to land is specified as a
disposal practice in which the solid
waste is applied to within one meter
(three feet) of the surface of the land.
That distance was selected to represent
the root zone of food-chain crops, where
uptake of cadmium by plants is likely to
occur.
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53450 Federal Register / Vol. 44. No. 179 / Thursday, September 13. 1979 / Rules and Regulations
The final regulation maintains the
same general approach as the proposed
regulation. Under the first option
controls are placed on both annual
application rates and maximum
cumulative loadings. The provision
mandating that the pH of the mixture pf
soil and solid waste be maintained at 6.3
has been changed to a requirement that
the pH be at 8.5 or more at the time of
each solid was'.e application (except
when cadmium concentrations are 2 mg/
kg or less in the solid waste).
While the annual application rate
limits are basically the same as those in
the proposed regulations, two changes
have been made. The limit for annual
cadmium application to "accumulator"
crops is now OS kilograms per hectare/
yr. (In the proposed regulation- the limit
was expressed in milligrams per
kilogram dry weight of waste.) In V-
addition, the annual application rate
limit for all other crops will be phased in
over a slightly longer time period than
that which was proposed.
The limits on cumulative loadings are *
also basically the same as those in the
proposed regulation. However, they
have been modified to account for pH
effects. Where natural soil background
pH is at 8.5 or greater, or where the
natural soil background pH is less than
6.5 but safeguards exist at the site which
will assure that the soil pH will be
maintained at 6.5 or greater for as long
as food-chain crops are grown, the
maximum limits contained in the
proposed regulation are applicable. In
all other situations maximum
cumulative loadings may not exceed 5
kg/ha.
. As in the proposed regulation, there is
a second approach that would allow
unlimited application of cadmium
providing that four specific control
measures are taken: First, the crop
grown can only be used as animal feed.
Second, the pH of the soil must be
maintained at 6.5 or above for as long at
food-chain crops are grown. Third a.
facility operating plan must describe
how the animal feed will be distributed
to prevent human ingestion. The plan
must also describe measures that will be
taken to prevent cadmium from entering
the. human food-chain due to alternative
future land uses of the site. Fourth.
future owners are provided notice
(through previsions in land records or
property deed) that there are high levels
of cadmium in the sc<\ and that food-
chain crops should nut be grown.
EPA received many comments on the
cadmium controls in the proposed
regulation. In order to clearly explicate
the final standard and respond to major
public comment this preamble will
discuss the issues under five headings:
(a) Health effects: (b) trace amounts of
cadmium: (c) maximum cumulative
' loadings: (d) annual rates of application;
and (e) closely controlled facilities.
(a) Health Effects of Cadmium.—The
comments that were received exhibited
widely divergent views on the health
implications of cadmium contained in
solid waste. As a result the Agency
reexamined the available scientific data
and reached the following conclusions.
A variety of adverse health effects
have been documented in humans and
experimental animals under conditions
of acute as well as chronic exposure to
cadmium. While acute health effects in
humans are generally caused by high*
level occupational exposure through
inhalation, chronic health effects may
result through the diet and cigarette
smoking, which are the major routes of
cadmium intake for most people. The
kidney is considered the main target
organ for chronic exposure to cadmium.
although chronic respiratory effects
have been observed in long-term
occupational settings. Upon ingestion or
inhalation, the metal gradually
accumulates in the kidney cortex
According to both clinical-
epidemiological and model-calculation
data, the critical concentration of
cadmium in the kidney cortex is
approximately 200 micrograms per gram
(ug/g). wet weight in the average
human. At that level, renal tubular
dysfunction, characterized by
proteinuria, is expected to occur. This v
condition is manifested by the excretion
of Bt-microglobulin. which is the earliest
discernible laboratory evidence of organ
damage. Although mild or moderate
increases in excretion of Bt-
microglobulin. per se. are not life-
threatening, the condition is often
irreversible, and continued excessive
exposure to cadmium can lead to other
renal function abnormalities (such as
gl> .;suria. amino-actd uria. and
phosphaturia).
Several autopsy studies have been
performed to determine the cadmium
content of various types of body tissue.
such as the kidney and the liver. These
studies confirm that the kidney is the
organ which contains the highest
concentration of cadmium and that the
concentration of the metal increases
with age. Further, the autopsy data
indicate that for the general United
States population (smokers included)
the -->an cadmium levels reached in the
kidney cortex are in the range of 20-35
micrograms per gram wet weight
Smoking would tend to raise the mean
cadmium concentration since the data
also show that smokers have
approximately double the concentration
ofnon-smokers. There were significant
individual variations from the mean
value, with some concentrations over 60
micrograms per gram.
Various models have been established
to calculate the daily level of exposure
which will result in a cadmium
concentration of 200 ug/g in the kidney
cortex i.e., the concentration at which
tubular proteinuria can be expected to
occur. EPA scientists reviewed these
models and have reached the following
consensus. Ingestion of 440 micrograms
of cadmium per day over a 50-year
period is a reasonable estimate of the
amount of cadmium necessary for 50
percent of the individuals within the
population to develop proteinuria. It is
significant to point out. however, that
there are many individuals who may
develop proteinuria at lower exposure
levels. The metabolic model developed
by Friberg, shows that ingestion of
about 200 micrograms per day over a 50-
year period Is the level at which most
sensitive individuals accumulate 200 ug/
g cadmium in the kidney cortex The
dose-response model, developed by
Kjellstrom and Nordberg, reflects a non-
threshold dose-response. Using this
model daily cadmium exposures in the
range of 100 to 125 micrograms would
produce renal dysfunction in about 5 to
8 percent of the population after some 50
years of exposure.
These model calculations are based
on the assumption that all cadmium
intake is through the diet Therefore.
allowances- are necessary for non-
dietary routes of cadmium intake, such
as smoking or occupational exposure.
(The contribution of smoking to
cadmium intake is readily quantifiable.
Available data show that smoking one
pack of cigarettes a day is roughly
equivalent to cadmium retention in the
body resulting from a dietary intake of
25 micrograms.)
In 1972. the World Health
Organization (WHO) used a model such
as the ones referred to above to arrive at
a recommended maximum cadmium
intake level through the diet. Employing ,
a margin of safety to allow for non-
dietary intake sources and for sensitive
individuals, the WHO recommended
that human exposure to cadmium should
not exceed 57 to 71 micrograms per day
from the diet
There is no general consensus on the
current dietary cadmium levels in the
United States, but there is wide
agreement that the daily intake levels
vary significantly according to
individual dietary habits. Based on
annual market basket surveys
conducted by the Food and Drug
Administration (FDA), the median
ingestion level is about 39 micrograms
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Federal Register / Vol. 44. No. 179 / Thursday, September 13. 1979 / Rules and Regulations 53451
per day and the mean ingestion level is
about 72 micrograms per day for male
teenagers, who have the highest per-
capita food intake among any age group.
Any average value as an estimate for
cadmium intake through the diet has the
shortcoming that it does not represent
those individuals with unusual dietary
habits, such as the heavy consumption
of cadmium-rich foods (e.g., leafy
vegetables); and the available evidence
shows that there is a wide range of
dietary cadmium exposure among the
population.
One other source for estimating
cadmium intake levels in the human
body was reviewed by the Agency. This
comprises chemical analysis of fecal
excretions. The fecal excretion studies
we based on the experimental finding
that only about 6 percent of ingested
cadmium is retained in the body, while
the rest is excreted. Three recent fecal
excretion studies derived the daily mean
dietary cadmium intake estimate of
about 20 micrograms for American
teenage males. The reasons for the
significant differences between the
results of the fecal excretion studies and
the FDA market basket surveys are not
yet understood. The fecal excretion-
studies also showed significant
individual variations in derived
cadmium ingestion levels. Thus, five
percent of the population appeared to
exceed 30 to 40 micrograms per day
intake, and one percent appeared to
exceed 90 micrograms per day intake.
There are population groups for whom
an increase of cadmium levels in the
diet may be more significant than for the
average population. Among these are
the smokers, who are known to receive
an added body burden of cadmium via
inhalation. Vegetarians also may be
experiencing higher cadmium intake
than the average population, since
certain vegetables contain significantly
more cadmium than other food items.
Also, the scientific literature indicates
that certain nutritional deficiencies,
such as low calcium, zinc, or protein.
result in a marked increase in cadmium
absorption through the gastrointestinal
tract, while individuals with vitamin 0
deficiency are more susceptible to injury
by a given level of cadmium in the body.
Both the FDA approach and the fecal
study approach are legitimate means of
estimating current average intakes of
cadmium. However it is also clear that
"sensitive" individuals may be
experiencing much higher absorption of
cadmium. Since under this regulation
higher estimates of current intake will
mean that lower levels of cadmium will
be allowed to be added from solid waste
disposal, EPA believes that it should use
the higher estimate of current diet levels
in order to provide greater protection for
sensitive individuals. Therefore, as will
be explained later, the criteria will rely
on the FDA estimate of 39 ug/day as the
median level in the diet which was
derived by averaging the median levels
over several years.
In addition to the concerns over renal
toxitiry, several commenters raised
questions over potential oncogenic,
carcinogenic, mutagenic and teratogenic
effects of cadmium. Based on an
evaluation of the currently available
scientific data, the Agency has
concluded that the evidence that.
cadmium may cause these effects in
man is suggestive but not decisive
enough to serve as the basis for this
regulation. Consequently, the limitations
on cadmium incorporated in the criteria
. are based on the substantial evidence of
that metal's impact on the kidney,
specifically the renal cortex which the
Agency considers to be the main target
organ for chronic environmental
exposure. However, if cadmium is
determined to cause the aforementioned
effects in humans, the Agency will
reevaluate the regulations and establish .
appropriate new limits'.
The Agency is concerned over the
conduct of any practice which could
significantly increase the amount of
cadmium in the diet beyond current
levels. Therefore, it is the intent of this
rulemaking to minimize the movement of
cadmium into the human food chain
. from solid waste applied to the land.
After an evaluation of the full range of
scientific information concerning
cadmium. EPA has decided to make the
following assumptions to serve as a
basis for setting limits on solid waste
application.
First the Friberg model, which defines
200 ug/day as the "danger level" in the
human diet is most appropriate for
regulatory purposes. There is more data
to validate that approach than there is
for the Kjellstrom dose-response model
Second, to provide an adequate safety
margin in defining the risk from solid
waste applied to food-chain crops, the
criteria should be concerned about daily
dietary intake of 70 ug/day of cadmium.
Third, for analytical purposes. EPA
will assume a maximum increment of 30
ug/day in conjunction with-high risk diet
assumptions. In order to relate the
health effects analysis to the diverse
and complicated data that exist on crop
uptake, it is necessary to make a
judgment about the incremental
cadmium ingestion that must be
prevented by this regulation. Clearly.
this is a difficult task in light of the
various sensitivities of particular
individuals, the long-term nature of the
health risk and the various dietary
patterns which may occur.
In using this assumption. EPA is not
stating that such an increase in the diet
of the average American is acceptable.
An increase of that magnitude in the
average diet would clearly be
unacceptable. For the average to
increase by this increment, many
individuals would be experiencing much
higher cadmium intakes.
It must be emphasized that the 30 ug/
day figure will be used in an analysis of
a high-risk situation. That high-risk
situation is one where an individual
receives 50% of his vegetable diet from
sludge-amended soils for a period of 40
to 50 years. While such a situation could
occur, due to a wide variety of other
mitigating factors most people will
experience much smaller exposures to
cadmium.
Realizing that any numerical
expression of unacceptable health risk
can only be an approximation, EPA used
the 30 ug/day as a reasonable
assumption for this analysis. The
Agency's Office of Research and
Development determined that daily
cadmium intake of- about 200 ug/day
could lead to serious health effects. To
provide a margin of safety, that office
suggested that a limit of 150 ug/day from
all sources of exposure be considered
for regulatory purposes. EPA is also
concerned about the added cadmium
which may enter the human body due to
smoking. Heavy smokers (those smoking
3 packs of cigarettes per day) can expect
to add the equivalent of 75 ug of
cadmium to their daily intake.
Reducing the 150 ug/day by that figure
gives an estimate of the "danger level"
for dietary intake. The result of that
calculation (75 ug/day) is close to the
World Health Organization's
recommendation of 57-71 ug/day. EPA
decided that a level of 70 ug/day
represented a reasonable limit on the — -
maximum acceptable daily dietary
intake of cadmium. The FDA's estimate
of current levels of cadmium in the
median American is 39 ug/day.
Therefore the 30 ug/day assumption
would keep cadmium ingestion within
the limit of 70 ug/day.
(b) Trace Amounts of Cadmium.—
Where the cadmium content of sludges
is quite small the likelihood of a
significant uptake in plants is also
relatively small. Several commenters
suggested that the requirement for pH
control (6.5 at time of waste application)
should not apply to those solid wastes
which contain only trace amounts of
cadmium. EPA agrees with this
comment and. therefore, has exempted
wastes with cadmium concentrations of
2 mg/kg (dry weight) or less from the pH
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• *'••"'
53452 Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulation*
' control provision. Thi* modification
would allow snrH wastes as food
processing residuals to be landspread.
without unnecessary pH control
measures.
(c) Maximum Cumulative Loading* of
Cadmium.—Comments received on the.
cumulative cadmium application limits,
soil pH. and soil cation exchange
capacity (CEC) are interrelated and.
therefore, will be discussed
concurrently. In general, commenters
felt that varying degrees and
combinations of the three
aforementioned parameters will limit
the Uptake of cadmium by food-chain
crops.
Most commenters agreed that it is
necessary to control the pH of the solid
waste/soil mixture to minimize, ihe
uptake-of cadmium by food-chain crops.
The final regulation recognises that need
by requiring that the pH of the mil/solid
waste mixture be 8.5 at the time of
application. The proposed regulation
required that pH be maintained at 83 for
as long as food-chain crops were grown.
Several commenters pointed out that
such a provision would be difficult to
implement or enforce In many
. situations. The Agency agreed that this
may be true in some instances but did
not want to preclude the application of
solid waste to food-chain crops where
soil pH can be maintained at acceptable
levels.
These considerations prompted EPA
to modify the standard log cumulative
loadings to delineate three soil
categories based on pH: (1) Those with
natural pi i of 84 or above: (2) those
with natural pH below 8A and (3) those
with natural pH below 6.5 but where pH
will be maintained at or above &3 for as
long as food-chain crops-are grown. The
criteria establinH the same set of
standards for categories (1) and (3) but
tighten the standard for soils with the
more dangerous condition reflected in
category'2V
The prime data base for the
calculation of acceptable cumulative
loadings was a set of field studies on
former landspreading sites where craps
were grown at least two yean after
application of solid waste. This
approach was appropriate for setting
maximum cumulative limits because
such standards are primarily concerned
with future uses of landspreading sites
for home gardening or commercial
agriculture.
These data correlated cumulative
loadings of solid waste in the soil to
plant uptakes of cadmium in
representative leafy vegetables. From
existing data comparing uptakes of leafy
vegetables to other basic food classes.
EPA calculated the ratio of uptake* in
leafy vegetables to those in other
classes. The ratios were then applied to
the field data to predict what uptakes
would have been if other types of crops
had been grown on former
landspreading sites. This gave an
estimate of cadmium uptakes that would
be likely to occur in fields with differing
cumulative levels of cadmium.
EPA then used a "diet scenario"
analysis to translate the plant uptake
levels into predictions about the amount
of cadmium' entering the human food
chain. The Agency's assumptions about
intake of the various food classes
followed that of the U.S. Pood and Drug
Administration's 1874 Total Diet
Studies. From this. EPA calculated the
additional cadmium entering the human
diet assuming varying levels of
dependence on crops from waste*
amended field*. (EPA calculated Intake*
for situations whine 100*. 50ft. 25% and
10* of die diet come from such field*.)
The 5 kg/ha limit for add soils (below
6.5 pH] was established by relating the
diet scenario analysis to the health
effects analysis. The diet scenario
analysis indicated that on mildly add
soils (pH«>&8) 5 kg/ha of cadmium only
increased dietary cadmium by 22 ug/day
(making the assumption that no more
than 50 percent of one's vegetable diet is
derived from sludge fields). However, a
cumulative loading of 7 kg/ha on very
acid soil* (pH«4J) Increased the
dietary level by 211 ug/day. This
marked increase In dietary cadmium
may be attributed to both the increese in
the cumulative cadmium application
rate from 5 kg/ha to 7 kg/ha and the
drop in pH from &8 to 4.9. Such en
increase, is far above the acceptable
level in the diet Therefore. EPA ha*
established the maximum cumulative
limit at 5 kg/ha for acid soils
Soil cation exchange capacity was
also utilized in calculating the
permissible loading* for soils with pH of
8.5 or greater. The evidence available to
EPA indicates that CEC Is an important
index of soil factor* in limiting uptake*
in high-pH soil*. However, in highly
addle soils. pH becomes the dominant
factor affecting plant uptake.
Soil CEC is an easily measured index
of those properties, particularly the
nature and content of day and organic
matter, that affect the soil's ability to
adsorb cadmium. High CEC levels mean
that a soil has a greater capacity to
adsorb cadmium and thus prevent that
cadmium from entering plants grown hi
the soil. Several studies have
demonstrated the inverse relationship
between CEC and plant uptake of
cadmium.
The proposed cadmium standard
recognized the importance
established'differing limits depending on
CF.C levels in the background soil. The
actual numbers selected were based on
recommendations from recognized
agricultural research groups (including
the North Central Regional Extension
Services and the U& Department of
Agriculture). Several commenters
supported the selected levels as
providing adequate protection against
excassive uptake of cadmium.
Where possible. EPA also used
existing field studies on former
landspreading sites to validate those
recommendations. An application of the
diet scenario analysis to available data
on high-pH soils with mid-range CECs
support* the conclusion that the levels
established in the recommendations
provide adequate protection to the
public. A* on example, again assuming
that half of the vegetable diet comes
from sludge-amended fields, the data
show that a cumulative level of 7 kg/ha
could result in an 11.9 ug/day dietary
increment while * level of IS kg/ha
could result in a 39.2 ug/day increment
Using the 30 ug/day increment
assumption discussed previously, the 15
kg/ha loading is too high, while the 7
kg/ha loading is well within the
acceptable range. EPA believes that this
analysis supports the selection of 10 kg/
ha is an appropriate standard for soils
with a mid-range CEC. In light of the
other deer evidence of the role of CEC
in limiting uptake EPA believes that it is,
therefore, appropriate to use the limits
recommended by the research
community.
The Agency recognizes that there are
some fadlities with naturally acid soils
where land management practices can
be implemented with adequate
safeguard* to assure that the soil pM
will be maintained at 6.5 or higher for as
long as food-chain crops are grown.
Where such safeguards exist, the
criteria provide an 07'ion to permit such
fadlities to use the CEC-based cadmium
loading rates^ However, the Agency is
concerned that the application of up to
20 kg of cadmium per hectare may result
in significant cadmium uptake by crops
if the pH is not controlled for as long as
food-chain crops are grown. Therefore.
unles* the facility can clearly
demonstrate long-term control over pH.
the Agency strongly recommends that
those facilities having naturally acid
soils select the option which limits the
cumulative cadmium application rate to
5 kg/ha.
The Agency considered establishing
even lower cumulative cadmium
application rates on soils with a natural
pH that is very highly addic (induding
prohibition on landspreading on soils
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Federal Register / Vol 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulation* 53453
with very low pH). While it it clear that
leafy vegetables,; L> jt crops and tobacco
tend to accumulate cadmium in their
tissues and. therefore, are more.
sensitive to high soil cadmium
concentrations under acid soil
conditions, insufficient data exist to
establish more restrictive cumulative
levels for such soils. The Agency is
continuing to examine this situation and
will, upon development of additional
data and information, propose new
cumulative limits for highly acidic soil
However, in recognition of the higher
uptake of cadmium by these crops, the
Agency recommends avoiding the
application of solid waste containing
cadmium (e.g.. sewage sludge) on very
•cidic soils used for the production of
leafy vegetables, root crops and tobacco
and discourages the application to
agricultural land which is likely to be
converted to production of such crops. •
. The Agency also considered requiring
a soil analysis for total cadmium prior to
the application of solid waste and
adjusting the cumulative limit for
cadmium additions downward to
account for soils with high background
cadmium concentrations. However, the
Agency was not able to justify the use of
a background correction factor since
there is a paucity of data concerning the
relationship between naturally occurring
cadmium and solid waste-added
cadmium, with respect to crop uptake.
Until these questions are resolved, the
Agency recommends that a soil test be
performed prior to initiating
landspreading. in order to establish the
background conditions at the site. *
Further, for those facilities which have
unusually high background cadmium
soil concentrations, the Agency
recommends that consideration be given
to reducing cadmium application.
(d) Annual Cadmium Application
Limit—Comments received on the
proposed annual cadmium application
limits were widely divergent Several
commenters stated that the proposed
cadmium limitation of OJ kilogram per'
hectare (kg/ha) per year was
unnecessarily restrictive. The indicated
reasons were primarily that the
reduction in solid waste application
would result in increased costs and that
the potential risk to human health was
not sufficient to justify that reduction. A
second group of commenters suggested
that the annual limitations on cadmium
application were not sufficiency
protective of public health and should
be reduced much further or the
application of cadmium-containing solid
waste to agricultural lands be prohibited
altogether, since the proposed limits
would permit the entry of significant
quantities of cadmium into *^i* human
diet
Comments were also received on the
proposed cadmium concentration limit
of 25 mg/kg for solid wastes applied to
facilities where tobacco, leafy
vegetable* or root crops are grown for
human consumption. Some «y>m|n«nt«»nf
viewed the proposed limit as being
overly restrictive, while others
recommended that cultivation of those
crops which tend to accumulate
cadmium to relatively high levels should
not be allowed on waste-amended soils.
EPA believes that annual cadmium
application limits are particularly
important on those active sites which
are nearing the cumulative ^•«%iimii.
application limits. As the total amount
of soil cadmium at such sites begins to
reach the cumulative loading limits, both
the cadmium previously applied to the
soil and new additions of cadmium from
solid waste will affect crop uptake of
cadmium. In setting annual application
rates EPA must account for this factor.
Available research indicates that
there are significant differences in
uptake among crop species. It would,
however, be impossible to write specific
cadmium limits for each crop type based
on the available data. Moreover, such
an approach would complicate the
regulation, making implementation
confusing and impractical
In looking at Individual crop uptakes,
however, EPA determined that there is a
set of "accumulator" crops which tend
to absorb very large quantities of
cadmium as compared to all othet crops.
Tobacco, leafy vegetables and root.
crops constitute the "accumulator"
class. In order to provide an adequate
margin of safety EPA believes that the
annual application rates should be
based on data from representative
"accumulator* crops. This assures that
when a mix of crops is grown on sludge-
amended fields no crop will have
dangerous up takes of cadmium.
The available data indicates that
significant increases of cadmium occur
even with small applications of waste.
For example, annual rates of
approximately O7 kg/ha applied to soils
which have not received sludge
previously have been shown to triple the
amount of cadmium in lettuce leaves.
Using the diet scenario analysis it can
bo demonstrated that application rates
of 0.8 kg/ha can lead to dietary
increases of 10.3 ug/day from leafy
vegetables alone. Other data indicate
that this level may be even greater
where cadmium from landspreading in
previous years is already in the soiL
Under these circumstances EPA
concluded that an annual limit of O5 kg/
ha is necessary to provide adequate
protection to the public health.
EPA recognizes that not all crops will
present the same risk as c^cumulator
crops, particularly in the first few years
of landspreading. However, due to the
factors discussed above, applications of
solid waste should eventually be limited
to 0.5 kg/ha for all food-chain crops.
Therefore, the Agency has decided to
distinguish between accumulator and
non-accumulator crops in the annual
limits. When wastes are applied to
accumulator crops the annual limit will
be as kg/ha immediately. For all other
crops a phased reduction will be
allowed.
The criteria limit additions to 2D kg/
ha until June 1964 and 1.25 kg/ha until
December 1988. This gives communities
and industry the time necessary to
Implement programs, such as cadmium
source control and pretreatment of
industrial discharges, to reduce current
cadmium concentrations in their waste*
or to develop alternative disposal
practices. The schedule has been
slightly relaxed from the proposed
criteria in order to make it compatible
with the Agency's pretreatment program
schedule. The Agency believes that
allowing higher cadmium application
rates than as kg/ha through 1988 will
have a negligible human health effect
because the health impacts from
cadmium are long-term and cumulative
in nature. Based on assumptions similar
to those used in the "diet scenario"
analysis (see the discussion of
cumulative loading limits), it can be
showmthat during this initial period
applications of 2.0 kg/ha do not present
significant health risks.
The proposed regulation also
distinguished between accumulator and
non-accumulator crops, and that
approach is being maintained in the
final'criteria. However, the proposed
limit for accumulator crops was
expressed in terms of sludge quality
(cadmium concentration in the waste
not to exceed 23 mg/kg dry weight).
Calculations show that a cadmium
concentration limit of 25 mg/kg in the
solid was's will not necessarily preclude
application rates above 0.5 kg/ha, the
level which EPA believes is more
directly related to the human health risk.
For example, some solid wastes are
often applied to the land as soil
conditioner or mulch. Such a solid waste
(e.g., composted sewage sludge), at a
cadmium concentration of 25 mg/kg.
would contribute cadmium to the soil at
the rate of about 15 kg/ha when applied
1.3 cm (0.5 inch) thick to the land
surface. Therefore. EPA decided to
integrate this standard with the rest of
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53454 Federal Register / Vol. 44. No. 179 / Thursday, September 13. 1979 / Rules and Regulations
the section and express the limit in kg/
ha.
(e) Closely Controlled Facilities.
Substantial public comment was
received on the second major approach
proposed for controlling dietary intake
of cadmium via the application of solid
waste to land. This approach required
cadmium levels in crops or meats
produced from solid waste-amended
soils to be comparable to cadmium
levels in similar crops or meats
produced locally where solid waste had
not been applied Several commenters
stated that this approach would be very
difficult to implement because of
problems In establishing an effective
system to monitor and control
agricultural products. Moreover, terms
such as "local market" and "comparable
levels" are vague and. therefore, subject
to varying interpretations.
Commenters suggested two major
alternatives to the proposed approach;
both of these were considered by the
Agency. They were dilution of cadmium-
containing crops and meats in the
market place, and establishment by the
FDA of ™«xininm permissible levels of
cadmium in food products. Dilution in
the market place was not selected as a
control option, partly because of the
difficulty of implementation. More
importantly, the dilution of a toxic
contaminant into the food chain is an
unacceptable long-term policy because
it could, over a number of years.
significantly increase the total body
burden in humans.
The FDA indicated that the
alternative approach of establishing a
tolerance level for cadmium in food
products is not possible at this time
because of insufficient data. A
nationwide survey is being conducted
currently by the EPA. FDA. and USDA
on cadmium levels in raw agricultural
commodities; however, several years
will be required to obtain the
statistically meaningful data necessary
to establish tolerance levels in
agricultural crops.
Based on the public comments
received, the proposed criteria have
been modified to simplify
implementation yet still provide
adequate health protection. As
promulgated, this cadmium management
approach sets forth four requirements
which will serve to minimize the
increase of cadmium in the human food
chain.
First, only animal feed may be grown
under this option. Research data show
that animals excrete most of the
ing«>«ted cadmium: the small amount
that is absorbed is accumulated in
viscera such as the kidney and the liver.
The likelihood of significantly increasing
individual or general dietary cadmium
levels through animal feeds is negligible.
Several commenters suggested that the
Agency consider prohibiting the
marketing of livers and kidneys of such
animals for human consumption. There
is some question whether such, an
approach is within EPA's authority
under the Act Moreover, control of
distribution in this manner is
unnecessary because the marketing of
organs from such animals would not
result in a significant increase of
cadmium in an individual's diet
The second control to assure proper
management of the facility is the
requirement that the solid waste and
SOU mixture have • pH of 8.5 or greater
at the time of solid waste application or
at the time the crop is planted.
whichever occurs later. The Agency
believes that «"•»"*"'"'"g the soil pH at
a near-neutral level is particularly
important under this cadmium
management approach when the
cadmium application rate is
unrestricted.
The third requirement calls for the
development of a facility operating plan.
The purpose of this plan is to
demonstrate how the animal feed will
be distributed and what safeguards an
utilized to prevent the crop from
becoming a direct human food source.
EPA is primarily concerned about crops
such as com, wheat and soybeans
which may be used for animal feed or
direct human ingestion. In addition, the
facility operating plan should describe
the measuns that have been taken to
safeguard against possible health
hazards resulting from alternative future
uses of the land. Some future land uses,
such as die establishment of vegetable
farms or home vegetable gardens, could
result in significant dietary increases of
cadmium. Such provisions In the facility
operating plan could cover a range of
options, such as dedication of the
facility as a public park, placement of
fresh top soil over the site, or removal of
the contaminated soil,
The fourth requirement Is a stipulation
in the land record or property deed
which states that the property has
received solid waste at high cadmium
application rates and that foodchain
crops should not be grown, due to a
possible health hazard.
(2) Poly-chlorinated Biphenyls
(PCB's). The proposed criteria required
that solid waste containing pesticides
and persistent organics. when applied to
land used for the production of food-
chain crops, not result in levels of these
substances in excess of the tolerances
set pursuant to the authorities of the
Federal Food, Drug and Cosmetic Act
The proposed criteria also required that
solid waste of concern due to its toxic
organic chemical or heavy metal content
(e.g* PGBs and lead) not be applied to a
site so that the freshly applied solid
waste may be directly ingested by
animals raised for milk or by humans.
At this time. EPA has decided not to
establish tolerances for pesticides and
persistent organics In solid waste. They
wen not developed because there were
no adequate data on the amounts of
these substances in solid waste to
demonstrate a public health risk. An
ongoing study is expected to obtain
information on the amount of pesticides
and persistent organics in sewage
sludge to help develop a standard
relating to this subject After reviewing
existing FDA tolerance limits for such
substances, EPA has determined that
they an impractical as a basis for
standards for solid waste application to
food-chain lands, because those
tolerance limits an based on food
contamination from pesticide
application. At this time then is almost
no information available indicating the
relationship between the level of such
substances In solid waste and the
resulting food contamination. Direct
application of the FDA tolerance limits
would require extensive chemical
analysis for a very large number of
pesticides and toxic organic substances
that might be present in the solid waste
• in trace amounts. Other data sources
also did not provide an adequate basis
for setting standards. The Agency will.
continue to evaluate data on this subject
and explore this problem with the FDA
and other interested parties. It is
possible that standards on this subject
could be part of pending sewage sludge
disposal guidelines under Section 405 of
the Clean Water Act as well as future
amendments to the criteria.
While EPA is concerned about the
health problem posed by ingestion of
lead, die Agency is not aware of any
evidence that increased lead ingestion
by dairy animals results in elevated lead
levels in milk Consequently, the Agency
is not able to promulgate a standard for
lead based on ing*>«tion of solid waste
by dairy animals, as was suggested by
some commenters. While direct
ingestion of lead by children, which may
occur when they play in areas where
sludge has been applied, may also be a
concern, there is limited data available
to establish a standard for this situation.
The Agency intends to explore this
potential problem further in the pending
sewage sludge disposal guidelines under
Section 405 of the Clean Water Act.
In establishing the standard for PCB's.
the Agency looked to tolerance levels
established by the FDA to define the
health risk. The FDA has established
maximum tolerance levels of 0.2 mg/kg
(actual weight) for animal feeds and 1.5
basis) for milk. The standard
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Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations 53435
promulgated to the criteria is designed
to prevent PCS levels from exceeding
these levels due to application of solid
waste to fields growing animal feed.
When solid wastes are applied to the
land surface so as to allow direct
contact between the solid waste and tho
crop, the animal feed can become
contaminated. By incorporation of the
solid waste beneath the soil surface
(generally below the rv«f 7oie of
pasture grasses), the amount of ingested
PCB's is greatly rpr1 :ced. Therefore. EPA
has concluded that the proper regulatory
strategy is to require incorporation of
the solid waste into the soil when the
PCB level in the waste material is so
high that direct contact between the
crop and the soil could cause the FDA
tolerances to be violated.
Based on assumptions recommended
by FDA. EPA calculated the.
concentration level of PCB's in solid
waste which might cause the FDA
tolerances to be violated. These
calculations-established the PCB "
concentration threshold at 10 mg/kg.
Generally, then, any sludge which
exceeds that level of PCB's must be
incorporated into the soil when applied
to land used for the production of food-
chain crops.
There is. however, one exception to
that requirement Wastes which exceed
10 mg/kg of PCB's may be applied to
fields without incorporation if testing of
the animal feed grown on the field
demonstrates that the FDA standards
will not be violated. If such tatting
Indicates that the FDA standard* nave
been violated, then the solid waste
disposal activities leading to the
contamination have violated the criteria.
It should be noted that the calculation
of the 10 mg/kg level for PCB levels in
the waste is based on the assumption
that the only way PCB's enter a grazing
animal is through the adherence of
waste material to the vegetation eaten.
EPA recognizes that a certain amount of
PCB's may enter the animal due to direct
ingestion of soil At this time, however.
EPA does not have sufficient data to
know how that factor should be used in
the analysis. Moreover, the
recommendations from FDA did not
take that factor into consideration.
As discussed earlier this portion of
the regulation is being issued as "interim
final", which means that further public
comment is solicited. EPA encourages
the public to provide suggestions and
data that would help the Agency to
account for the direct ingestion of soil in
setting a PCB standard.
I. Disease (Section 257.3-6)
Solid wastes can contain pathogenic
bacteria, viruses and parasites which
can infect both humans and animals.
Wastes can provide food and harborage
for rodents and flies which are capable
of transmitting these disease organisms
to humans and animals. Other routes of
disease transmission to humans and
animals include direct contact with
wastes during landspreading operations.
contact with soil or plants which have
been contaminated with wastes, or
ir.gestion of food and water
contaminated with wastes.
The proposed criteria required
protection of public health by control of
disease vectors. This requirement was
to be met through minimising the
availability of food and harborage for
disease vectors or through other
techniques when appropriate. la
another section, the proposed criteria
required stabilization of solid waste of
concern due to its pathogen content
when applied directly to the surface of
land used for the production of food*
chain crops. In addition, a one-year
waiting period was prescribed before
growing human food crops which are
normally eaten raw. In yet another
section, the proposed criteria required
controlled access to solid waste
disposal facilities so as to minimize
exposure of the public to exposed waste.
The final disease criterion combines
provisions concerning vectors and
pathogens. The provision concerning
vectors calls for the minimization of on-
site populations of disease vectors.
Periodic application of cover material
(usually at the end of each operating
day) or other appropriate techniques
should satisfy the performance
standard.
Sewage sludge and septic tank
pumpings an the solid wastes which an
generally applied to the surface of the
land and an of concern due-to their
pathogen content To protect public
health, the criteria provide for control of
pathogens in disposal of these wastes
by one of several operational
approaches as described below.
Sewage sludge applied to the land
surface or incorporated into the soil
must be treated by a Process to
Significantly Reduce Pathogens. Aerobic
digestion, air drying, anaerobic
digestion, composting, lime stabilization.
or other similar techniques will satisfy
this requirement In addition, public
access to the site must be controlled for
at least 12 months, and grazing by
animals whose products an consumed
by humans must be prevented for at
least one month.
Septic tank pumpings must be treated
by one of the Processes to Si|
Reduce Pathogens, unless public access
to the facility is controlled for at least 12
months and grazing by animals whose
products an consumed by humans is
prevented for at least one month.
Neither set of provisions for sewage
sludge or septic tank pumpings apply
where these wastes are disposed of by a
trenching or burial operation.
Further public health protection is
required when sewage sludge or septic
tank pumpings are applied to land
where crops for direct human
consumption are grown less than 18
months after waste application. In these
instances, the waste material must be
treated, prior to application, by a
Process to Further Reduce Pathogens. '
Beta ray irradiation, gamma ray
irradiation, pasteurization or other
equivalent methods will satisfy this
requirement if performed after a Process
to Significantly Reduce Pathogens. High-
. temperature composting, heat drying,
heat treatment and thermophilic aerobic
digestion will satisfy this requirement
without prior treatment.' A Process to
Further Reduce Pathogens is not
required if there is no contact between
the solid waste and the edible portion of.
the crop, as long as the solid waste is
treated by a Process to Signficantly
Reduce Pathogens prior to application.
In addition, public access to the facility
must be controlled for at least 12 months
after solid waste application, and
grazing of animals whose products are
consumed by humans must be prevented.
for at least one month.
Like the portion of the criteria
concerning application of solid waste to
food-chain crops (5 257.3-4). the sewage
sludge and septic tank pumpings
provisions of the disease section an
being issued as an "interim final"
regulation. While then was extensive
public review and comment on the
proposed regulation, the public has not
had a full opportunity to examine and
analyze the new data and technical
support for this section. At the same
time EPA believes that it must
promulgate this portion of the regulation
in order to satisfy the spirit of the court
order mandating issuance of the criteria.
EPA»wiil fully review all comments and
make changes in the regulation if such
modifications are warranted by the
data.
(1) Disease Vectors. Some
commenters sought a more specific
statement of the performance objective
of this provision. EPA explored the
possibility of developing a numerical
performance objective, but determined
that such a standard would not be
meaningful. While the risk from disease
vectors is very real the risk cannot be
translated into a measure of "rats per
square meter" or "flies per cubic foot of
air space." Moreover, such performance
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5^56 Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations
standards could not be measured with
any accuracy. Therefore, EPA made the
standard more specific by requiring
minimization of on-site populations of
. disease vectors. This statement of the
standard leaves no question that the
facility must not be a breeding ground.
habitat or feeding area for vector
populations. At the same time, it
provides some flexibility in the
implementation of the standard.
Several commenters indicated that,
since there are a number of techniques
to protect public health from disease
vectors, the phrase "minimizing the
availability of food and harborage for
vectors through periodic application of
cover material'' should be deleted. EPA
agrees and h^i done so*
At most facilities which dispose of
putrascible wastes, the most effective
means to control rodents is the
application of cover material at the end
of each operating day. Other means
include composting or processing the
waste, so as to render it unattractive to
rodents, or using rodenticides. At some
facilities, disease vectors such as flies
may be more difficult to control than
rodents; but certain practices, such as
the periodic application of cover
material, can help alleviate the •
problems. Mosquitoes can be controlled
by eliminating stagnant water for
breeding, by predatory or reproductive
control and. if necessary, by spraying
with insecticides or repellants. .
Cover material also serves other
purposes: (a) It helps contain odor, litter.
and air emissions, thereby improving the
facility's aesthetic quality: (b) it reduces
the potential for fires; (c) it reduces
rainwater Infiltration, thereby .
decreasing leachate generation and
surface and ground-water
contamination; and (d) it improves the
facility's appearance and enhances
utilization after completion.
Since periodic application of cover
material is an effective, widely used and
generally preferred means of controlling
vectors. EPA believes that it is
appropriate to specify it in the criteria. It
is impractical, however, to cover some
wastes. Moreover, cover material is not
generally necessary for wastes which
are non-putresdble. relatively stable or
inert. The criteria allow for other
techniques to be employed hi these
situations.
EPA has not included the phrase
"minimizing the availability of food and
harborage" in the final standard. That
language would not cover such control
measures as repellants. insecticides and
rodentiddes, which could be effective in
meeting the objective of this section.
Commenters also requested a .
definition of the term "disease vector."
Disease vectors are rodents, flies and
mosquitoes, since these are the known
organisms common at disposal facilities
that are capable of transmitting disease.
(2) Sewage Sludge and Septic Tank
Pumpings. In establishing regulations to
protect public health from pathogen-
induced disease, it must be recognized
that there is a distinction between being
exposed to disease-producung
organisms and actually acquiring a
disease. Healthy humans and animals
can tolerate small numbers of
pathogenic organisms without acquiring
a disease. Disease normally occurs
when the body's immune system is
impaired, or the dose of pathogens is so
great that it overwhelms the body's
defense mechanism. In setting these
criteria, the goal is to prevent human
exposure to large numbers of pathogenic
organisms due to solid waste disposal
activities.
Commenten requested specification
of which solid wastes are of concern
due to their pathogen content The
criteria have been modified to specify
sewage sludge and septic tank pumpings
as the wastes which are generally
applied to the surface of the land and
are of concern due to their pathogen
content Although little information is *
available on septic tank pumpings, the
relatively long residence time of the bulk
of the waste material in a septic tank
should reduce the density of pathogenic
organisms. Therefore, the Agency has
tentatively concluded that septic tank
pumpings have the same general
characteristic* with regard to land .
application as partially treated
municipal sewage sludge. The public is
invited to submit pertinent data on this
subject the Agency will review any new
information and reassess these
regulations accordingly.
Sewaga sludge and septic tank
pumpings contain various types of
pathogenic bacteria, viruses and
parasites. While bacteria are greatly
reduced by sunlight and drying, viruses
may persist in soils and on vegetation
for several weeks or months. Parasitic
ova and cysts are quite resistant to
disinfectants and advene
environmental conditions. Many, in fact
require a period of free-living existence
in the soil before becoming infectious to
man. Therefore, a major reason for
requiring the control of pathogens is the
potential for human ingestion of soil or
plants contaminated with such wastes
containing ova or cysts.
Some commenters suggested that the
criteria require a "pathogen-free"
sewage sludge. EPA does not believe
that such regulation is necessary to
avoid a reasonable probability of
adverse effects on the population that
may come in contact with sludge-
amended fields. A greater degree of
protection is needed for certain solid
waste disposal practices (i.e.,
application to land where food-chain
crops are grown), and this section
provides for such protection.
The proposed regulation relied on
stabilization as the principal treatment
technique to reduce the risk of pathogen-
induced disease. However, because the
term "stabilization" conventionally
related to odor control and to a lesser
degree pathogen reduction, this term is
no longer used in the criteria. The
criteria have been revised to require
that sewage sludge and, under certain
conditions, septic tank pumpings be
treated by a Process to Significantly
Reduce Pathogens. These processes
include aerobic digestion, air drying.
anaerobic digestion, composting (three
techniques); lime stabilization or other
equivalent techniques.
EPA recognizes that not all of these
processes achieve exactly the same
level of pathogen reduction. Variations
in weather, residence times.
temperatures and other factors will
influence the effectiveness of each
process. The Agency also recognizes
that different processes may be more or
less effective in destroying certain types
of pathogens (i.e.. bacteria, viruses or
parasites). Each process, however, has
been shown to achieve a significant
reduction in pathogen levels. Therefore,
EPA believes that they are appropriate
to achieve the objectives of this section.
The proposed regulation required
controlled access to disposal facilities
so as to minimize exposure of the public
to hazards posed by exposed waste. The
final regulation seeks to minimi«
exposure of the public to pathogens in
the upper layers of waste-amended
soils. Since pathogens in the surface soil
are generally reduced to insignificant
levels within 12 months of application.
the criteria require that public access to
the facility be controlled for that period
of time. "Controlled" does not mean that
all entry on the site be precluded. The
term "controlled." rather than
"prevented." was chosen for regulating
public access, because with proper
precautions there appears to be no
health hazard. However, there would be
a health hazard if. for example, children
were permitted to play on the waste-
amended soil. Therefore, fencing would
be necessary if these wastes were
applied to areas frequented by the
general public (e.g., park lands) but
fencing would not be necessary on farm
land which was not available for use by
thepublic.
This section also includes a limit on
animal access to the fields for grazing
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Federal Register / Vol 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulation* 53457
for one month after sewage sludge la
applied. This is appropriate for several
reasons. First, the animal act* as a first
line of defense against human contact
with pathogens. The products derived
from the animal (meat or milk) will not
contain the same level of pathogens as
might enter the animal due to grazing on
waste-amended fields. Second, in many
cases rainfall in the one-month period
after application will wu^h the slud lieves that this will provide a
reasonable probability that pathogen
levels will be greatly reduced. Since this
is an "interim final" regulation. EPA
encourage* public comment on the
appropriateness of this rationale.
EPA recognizes that for some crop*
(e.g, citrus fruit*, com) the edible
portions are not exposed to, nor are
likely to come in contact with, the
sewage sludge or septic tank pumping*,
Therefore, there is no need to use a
Process to Further Reduce Pathogen*
when such a crop 1* grown. However. In
this case the waste must be treated by a
Process to Significantly Reduce
Pathogen*, public access to the facility
must be controlled for at least 12
month*, and the grazing of animals
prevented for at least one month after
application of the waste. The Agency
chose the more conservative approach
of requiring significant pathogen
reduction and cont oiled access for both
sewage sludge and septic tank pumping*
because even where direct contact
appears unlikely, the quality of crops
which are directly consumed by man
must be assured.
In examining the health risk presented
by pathogens, EPA determined that
pathogen* an not likely to migrate in
the sou. Pathogens tend to remain
intimately associated with the waste
material and an often too large to move
through soil pore systems. Also, soil*
have been reported to be effective in
removing viruses and bacteria from
water. Surface erosion win the resultant
water runoff seems to be the only route
for movement of pathogens. Based on
these findings, the Agency concluded
that sewage sludge and septic tank
pumping* that are placed underground
by a trenching or burial operation
should not be subject to this section.
Under such circumstances then will be
minimal movement of the organisms -
through the soil and the risk of erosion
is slight because the wastes are
completely covered.
J. Air (Section 257.3-7)
Opea burning is the uncontrolled or
unconfined combustion of solid wastes.
Open burning is a potential health
hazard, can cause property damages,
and can be a threat to public safety.
Smoke from open burning can reduce
aircraft and automobile visibility and
has been linked to automobile accidents
and death on expressways. The air
emission* associated with open burning
are much higher than those associated
with incinerators equipped with air
pollution control device*.
The proposed criteria provided for
control of air emissions through three
stipulations: Pint, the facility was to
control air emissions so as to comply
with Federal. State, and local air
regulations. Second, all open burning of
residential commercial, institutional.
and industrial solid wastes was
prohibited. Third, open burning of other
solid wastes could be permitted if in
compliance with State and local air
regulations.
This final air criterion has two
components. First, there shall be no
open burning of residential commercial
institutional or industrial solid waste.
(This provision does not apply to
infrequent burning of agricultural
wastes, sUvicultural wastes, land-
clearing debris, diseased tree*, debris
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53458 Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations
from emergency clean-up operations and
ordnance.) Second, air emissions caused
by solid waste disposa^activities shall
not violate applicable requirements
developed for State implementation
plans (SIP'S) under Section 110 of the
Clean Air Act
While several comznehters suggested
that a ban on open burning is
unnecessary, EPA has decided to retain
that provision for residential,
commercial, institutional or industrial
waste. The ongoing open burning of
these wastes presents significant
hazards to human health, and no health
or environmental benefit is derived from
the practice. Several commenters
suggested allowing open burning with a
variance. There is no environmental
rationale for'such a variance because
open burning does not lessen the need
for disease vector control or leachate
control for maintaining surface and
ground-water quality. Moreover,
variance procedures for this situation
would be particularly difficult to
administer because of the dynamic
nature of the many variables involved
(existing air quality, wind speed.
humidity, mixing and vertical
dispersion, efficiency of the bum.
amount and type of waste, etc.).
EPA decided to exempt from the open
burning prohibition those wastes which
are typically burned infrequently. The
burning of agricultural wastes in the
field, land-clearing debris, standing
trees in a forest, diseased trees, debris
from emergency clean-up operations and
ordnance is not typically an ongoing
practice and, thus, does not present a
significant environmental risk. In
addition some of these practices,
particularly the destruction of disease-
carrying trees or debris from emergency
clean-up operations, provides an added
environmental benefit in preventing
chances of disease or accident It should
be noted, however, that the criteria
assure that the condur*«..f these
infrequent acts of burning must be in
compliance with applicable
requirements developed under the State
SIP.
In requiring compliance with the SIP,
EPA is seeking to coordinate the criteria
with the Clean Air Act as mandated in
Section 1006 of the Act The regional
health concerns addressed through the
SIP'S are clearly of concern under the
Act a-» >•• oil. The prohibition <>f cpen
burning should prevent most air quality
problems. Where such concerns are not
covered by the open burning ban. EPA
believes that it is unacceptable for solid
waste disposal activities to cau.se
violations of SIP requirements.
EPA has eliminated that part of the
proposed regulation that required
compliance with "all applicable Federal.
State and local air regulations" and the
reference to protection of public health
and welfare. Some commenters said that
the proposed criteria "federalized" State
and local air regulations. EPA is not
federalizing any such regulations in the
final criteria. In tying the criteria to the
SIPs, EPA is assuring that at a
minimum, solid waste activities that
undermine Congressionaily-established
Federal environmental air quality
objectives will not be considered
adequate under the.Act
Several commenters requested
clarification regarding the impact of the
criteria on the use of pit or trench
incinerators. Emission factors (Le.,
particulates) for such Incinerators equal
or exceed those for open burning dumps.
Since such devices do not control
emissions, they fit the definition of open
burning. Thus, for purposes of the
criteria, combustion in a trench -
incinerator constitutes "open dumping."
Comments Wen requested hi the
Preamble of the proposed regulation on
the advisability of including in the final
promulgation specific air quality limits
which would be based on Occupational
Safety and Health Administration
(OSHA) air quality standards. Several
commenters noted that since OSHA air
quality standards an based on
workplace exposure and not ambient air
quality, the inclusion of these standards
would be inappropriate and possibly
confusing. Air quality standards based
on OSHA regulations have not been
included la the final promulgation.
Commenters also suggested that the
content of the air criteria be moved to
the safety criteria (J 257.3-8) since many
of the dangers of open burning relate
directly to public safety. The Agency
considers the problems of open burning
to be broader than just public safety;
thus, this change was not made.
However, the safety criteria have been
revised to reference the air criteria.
K. Safety (Section 1573-4}
This portion of the criteria addresses
a set of adverse effects involving
potential accidents which could be
caused by solid waste disposal
activities. The legislative history of the
Act indicates that in passing the
provisions authorizing these criteria the
Congress was concerned about all of the
effects addressed in this section. The
safety hazards addressed in the final
regulation include explosive gases, fires.
bird hazards to aircraft and public
exposure to wastes due to uncontrolled
access to disposal sites.'
The proposed regulation also
contained a provision for toxic and
asphyxiating gases. While EPA is quite
concerned about the emission of such
gases from solid waste. EPA was unable
to identify sufficient information on the
nature of this problem to support the
setting of par+l^ular standards. The
ex: ;ting data on the generation of toxic
and asphyxiating gases in solid waste is
quits limited. In particular, it is difficult
to define a set of gases generated in
solid waste disposal that present a
public health hazard. £•. en if such a set
of gases could be identified it is difficv.lt
to determine, on the basis of data
currently available to EPA, what levels .
of such gases may be tolerated without •
a substantial risk to public health or the
environment EPA will continue to
explore this problem. However, at
present mere is insufficient information
to support particular limits on toxic and
asphyxiating gases.
(1) Explosive gases. Solid waste
disposal activities may produce
explosive gases. In particular, methane
gas is a product of solid waste
decomposition. The accumulation of a
sufficient concentration of methane gas
in disposal facility structures or nearby
off-site structures may pose a serious
threat to the health and welfare of
facility employees, users of the disposal
site, and occupants of nearby structures.
Explosions resulting in injury and death
have been caused by gases from solid
waste disposal.
The proposed criteria required that
the concentration of explosive gases in
faculty structures and in soil at the
facility property boundary not reach the
lower explosive limits (LEL) for the
gases. The final regulation is essentially
the same except that concentrations in
facility structures will not be allowed to
exceed 25 percent of the lower explosive
limit for the gas. In addition the final
standard, which could potentially be
applicable to several explosive gases,
will only be concerned with methane at
this time.
Commenters suggested that the gas
criteria be deleted and that control be
left to the Occupational Safety and
Health Administration (OSHA).
Following consultation with OSHA. the
Agency rejected this suggestion because
the jurisdiction of OSHA does not
include all solid waste disposal facilities
and practices of concern to the Act nor
does it include off-site residences to
which gases can migrate.
The Agency has decided to adjust the
standard for facility structures to
provide a margin of safety. Several
commenters suggested such a change.
since allowing explosive gas to
accumulate in concentrations just under
the lower explosive limit would be
extremely dangerous and would not
provide for a reasonable probability of
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-FedereT Register / VoL 44. No. 179 /Thursday, September 13, 1979 / Rule« and Regulation*
avoiding advene effects. In selecting the
23% figure EPA la using a safety factor
recognized by other Fedei al agendes. a*
being appropriate for similar situation*.
EPA also concluded that such a safety
factor was unnecessary at the property
boundary. Gases-at or below the LEL at
the property' boundary will necessarily
become somewhat diffused before '
passing into a structure beyond the
property boundary. Thus, in assuring
that the LEL is not exceeded at the
boundary EPA has provided a margin of
safety against an off-site explosion.
EPA has selected methane as the
single gas of concern. The information
available to EPA Indicates that build up
of methane gas has been the principal^.
source of explosions associated with
solid waste disposal Other gases may
be added to the list as new information
develops. '....-_..- , „.,. --.
Cbmmenters recommended that
disposal facilities not in close proximity
to off-site structures be exempted from
the gas criteria. Considering that gas
production in disposal facilities is a
long-term process continuing for
decades, the Agency rejected this
recommendation. Facilities which are
remote today may be surrounded by
extensive development in the future.
especially after completion of disposal
operations.
(2) Fires. Fires at solid waste disposal
facilities pose the threat of property
damage and injury or death to facility
employees, users, and nearby residents.
Examples of circumstances which can
lead to fires associated with disposal
facilities or practices are: Vandalism,
carelessness, spontaneous combustion.
open burning of wastes, and disposal of
hot ashes.
The proposed criteria required that all
fires be extinguished expeditiously and
that fire hazards be minimized through
proper site construction and design and
periodic application of cover material
when appropi ;.i te.
According to uie final regulation, the
facility or practice shall not pose a
hazard to the safety of penons-or
property from fires. This objective can
• be served by compliance with the air
criterion (§ 257.3-7), particularly the
open burning ban. and through periodic
application of cover material
Commenters objected to the vague
nature of this provision as originally
proposed. While some level of flexibility
is necessary. EPA has tried to make this
standard as specific js possible. The
reference to "expeditious" extinguishing
of fires was eliminated. EPA also
specified types of operational practices
to accomplish me goals of this section.
Commenters suggested that due to the
relationship between open burning and
potential fin hazards, the prohibition on
open burning be Incorporated into this
section. As explained previously the
safety criteria now reference the air
criterion (which contains the prohibition
of open burning.)
(3] BJrd Hcuardf. Many reports and
investigations show that disposal
facilities and practices involving
putresdble wastes often attract birds. In
spite of vector control efforts
(compaction and cover of wastes, etc.).
When solid wastes are disposed in the
vicinity of airports, the birds attracted to
the area can present a significant risk of
accidents due to collisions between
birds and planes. The Federal Aviation
Administration (7AA) has issueil FAA
Order 52004. "FAA Guidance
Concerning Sanitary Landfills on or
Near Airports" (October 10,1974). The
order states mat solid waste disposal
facilities have been found by study and
observation to be artificial attractaats of
birds and, therefore, "may be
incompatible with safe flight
operations" when located In the vidnity
of an airport
The proposed criteria required that
disposal facilities not be located within
the two distance limits (10,000 feet for
turbojets and 5.000 feet for piston-type
aircraft) specified in FAA Order 5200.3
unless the facility was found to not pose
a bird hazardto aircraft For facilities
beyond the specified distances, but
within the conical surface described by
FAA Regulations (FAR). Part 77.
facilities were to be reviewed on a case-
by-case basis for a potential bird
hazard.
The final regulation retains the basic
approach but clarifies several terms,
including "airport" and "bird hazard."
The provision for case-by-case analysis
• of facilities within the conical surface
has been dropped;
Some commenters questioned whether
the Act provides authority to control
solid waste disposal on the basis of bird
hazards to aircraft They claimed that
the FAA has adequate authority to
prevent bird hazards to aircraft
concluding that this section of the
criteria is not necessary.
The criteria are required to address
the prevention of adverse effect* on
health and the environment from solid
waste disposal facilities. The legislative
history (H.R. Rep. No. 94-1491) cites an
aircraft crash resulting from birds
attracted to a disposal facility as one
example of adverse effects of open
dumps. There are also many other
examples of such hazards from disposal
facilities. Therefore, the Agency has
concluded that this issue (s clearly
within the scope of this legislation.
Although the FAA is authorized to
control airport operations to reduce bird
hazards to aircraft its authority does
not extend to disposal facilities outside
airport boundaries which may pose such
hazards. It should be noted, however.
that EPA Is not "enforcing" the FAA
order. The selection of the distances .
specified in that order is merely a
recognition that they represent a
reasonable determination of the danger
zone around an airport Likewise, it
should be made clear that neither this
regulation nor the proposed standard
prohibited the disposal of solid waste '
within the specified distances. Instead.
the distances define a "danger zone"
within which particular care must be
taken to assure that no bird hazard
arises.
Some commenters challenged the
relevancy of the 10,000 foot (for
turbojets) and 5.000 foot (for piston-type
aircraft) distances for defining the
danger zone for bird/aircraft collisions.
The distances cited were derived from
FAA Order 5200.5. The distances are
based on the consideration that over 82
percent of all bird strikes occur below
altitudes of 500 feet (150 meters), and
that aircraft are generally below this
altitude within the distances specified.
Some commenters emphasized that
bird strikes do occur outside the
distances established In the regulation.
Consultation with FAA personnel .and
other experts in the field of bird/aircraft
hazards has revealed that even when
disposal facilities are located beyond
the distances specified, hazards can
exist where an airport is situated
between a disposal facility and bird
feeding, roosting, or watering sites. The
hazard arises as birds traverse the
airport in flying between the disposal
facility and watirirg. feeding or roosting
areas. However. EPA does not have
sufficient information to indicate how
serious this problem is. Moreover, the
available data is insufficient to support
the setting of national regulations to
cover such contingencies. At some point
it becomes difficult to isolate the
independent effect of solid waste .
disposal activities on the bird hazard
problem.
EPA has also decided to give a dearer
definition of some key terms. The
definition of "Airport" includes those
airfields currently defined by the FAA
as public-use airports. The regulation
applies to that set of airports because
existing data indicates that the
preponderance of bird strikes occur at
public-use airports. For example. 120 of
the 121 airports reporting strikes in 1977
were public-use airports, and 220 of the I
223 airports reporting strikes in 1978 j
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53460 Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulations
were public-use airports. Hie FAA
agrees with this approach. EPA. in
consultation with the FAA. may
broaden the class of airports of concern
if it receives information demonstrating
that a similar bird hazard exists at other
fields.
In defining the airports of concern
EPA has also eliminated the proposed
criteria's reference to "runways planned
to be used." Aa several commenters
pointed out such a reference would not
be workable because it would require
speculation about future siting of
airports.
EPA also makes it dear that the "bird
hazard" of concern is "an increase in the
likelihood of bird/ aircraft collisions."
Solid waste disposal within the danger
zone may continue as long as it can be
shown that the operation can be
managed in such a way as to not
increase the risk of collision within the
specified distances.
After considering public comments.
EPA has deleted portions of the
proposed standard. Several commentars
stated that the use of the conical surface
in the criteria was ambiguous and not
applicable to this standard. The conical
surface is an imaginary plane
delineating an airspace segment 150 feet
above the established airport elevation.
The FAA prohibits stationary objects in
this space because they might interfere
with approaching and departing aircraft
This is inapplicable to solid waste
disposal activities for two reason*!: (l)
Birds, the "obstructions" of concern in
this regulation, are hardly stationary:
and (2) solid waste disposal activities
are typically low-profile operations-
(below 150 feet) and are not likely to
constitute obstructions into the conical
surface.
Commenters asked who was
responsible fui determining whether a
facility posed a bird hazard to aircraft
The Act and the CWA create the
implementing mechanisms for these
criteria. However, in this instance
consultation with the FAA and the Fish
and Wildlife Service would be very
helpful. Furthermore, actions at both the
airport and the disposal facility can
reduce or eliminate hazards. Therefore.
where appropriate this determination
should be made in consultation with
these agencies, as well as with the
owners and operators of the airport of
concern.
(4) Access. Materials and activities
associated with solid waste disposal
facilities can cause injury or death to
persons at the facilities. Potential causes
of such harm include:
(a) Operation of heavy equipment and
haul vehicles;
(b) Hazards associated with the types
of waste, including sharp objects.
pathogens, and toxic, explosive, or
flammable materials; and
(c) Accidental or intentional fires.
The proposed criteria required that
entry to the facility be controlled in
order to minimize exposure of the public
to hazards of heavy equipment
operation and exposed waste.
The final criteria call for control of
access to protect the public from on-site
exposure to health and safety hazards.
The importance of access control
cannot be overstated, since persons
have suffered injury and even death at
uncontrolled waste disposal facilities.
Furthermore, in most cases, there is little
economic impact on solid waste
disposal operations in acfiompM
such control.
During normal operating hours, proper
management controls can mtnfmiM
safety hazards. For example, potential
harm to facility operating personnel can
be reduced through proper training, use
of safety equipment control of waste
types, and other practices. The most
effective means of minimirip the risk of
injury to other persons is by complete
prohibition of access to the site by non-
users (e.g. by suitable fencing) and strict
control of users while on the site. For
individuals disposing of small amounts
of wastes, storage or special disposal
facilities can be provided at the
entrance to the facility or away from the
area being utilized by professional solid
waste management personnel
The principal change from the
proposed regulation is the broadening of
the regulation's coverage. Accidents at
solid waste disposal sites are not limited
to hazards caused by heavy equipment
operation and exposed waste. EPA
believes that particular types of hazards
should not be specified in the regulation.
thereby allowing for flexibility in how
the standard is applied. Therefore, the
criteria seek to avoid public exposure to
ell potential health and safety hazards
at solid waste disposal sites.
Two commenters stated that the
proposed requirement for fencing was
unreasonable. It should be noted that
the Agency did not propose a
requirement for fencing. At many
facilities natural barriers exist which
make public access very difficult:
however, even if the criteria were
complied with through the installation of
a fence around the entire property the
cost would be relatively insignificant
when compared to the other costs
required to properly operate a disposal
facility.
V. Environmental and Economic Impacts
Voluntary environmental and
economic impact analyses onthis
regulation have been performed and are
presented in the "Final Environmental
Impact Statement on the Criteria for
Classification of Solid Waste Disposal
Facilities". These analyses are not
required by the National Environmental
Policy Act but provide information
pertinent to the development and use of
this regulation. Copies of this two-
volume report may be obtained on
request from: Solid Waste Information.
U.S. EPA. 28 West St Clair. Cincinnati.'
Ohio4526a
EPA has also prepared a number of
background documents that respond to
public comments not addressed in the
Preamble. These documents may be
examined at EJ.A.. 401M Street S.W.,
Washington, D.C. 20460 in room 2632. If
there are apparent'inconsistencies
between these documents and this
Preamble, the latter shall represent the
Agency/* position, ,
Dated: September 10.1979.
Douglas M. Costle,
Administrator.
Title 40 CFR is amended by adding a
new Part 257 to read as follows:
PART 257-CRITERIA FOR
CLASSIFICATION OF SOLJD WASTE
DISPOSAL FACILITIES AND
PRACTICES
SK.
257.1 Scope and purpose.
257.2 Definitions.
237.3 Criteria for classification of solid
waste disposal facilities and practices.
2374-1 Floodplains.
2374=2 Endangered specie*.
2574-3 Surface water.
257.3-4 Ground water.
2374-3 Application to land used for the
production of food-chain crops. (Interim
final).
2374-4 Disease.
237 J-7 Air.
237.3-4 Safety.
257.4 Effective date.
Authority: Sec 1008(a)(3). and tec. 4004(a).
Pub. L. 94-560. 90 Slat. 2803 and 2813 (42
U.&C 6007(aH3). 6944); tec. 405(d). Pub. L
93-217.91 SUL 1591.1606 (33 U.S.C. 1345).
9 2S7.1 Scope end purpoee.
(a) These criteria are for use under the
Resource Conservation and Recovery
Act (the Act) in determining which solid
waste disposal facilities and practices
pose a reasonable probability of adverse
effects on health or the environment
(1) Facilities failing to satisfy these
criteria will be considered open dumps
for purposes of State solid waste
management planning under the Act.
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Federal Register / VoL 44. No. 179 / Tharsday. September 13. 1979 / Rate* and Raguktfams P4B1
(2) Practice* failing to satisfy these
criteria constitute open dumping, which
is prohibited tinder Section 4008 of the
Act
(b) These criteria also provide *
guidelines for sludge utilization *"4
disposal under Section 406(d) of the
Qean Water Act as amended. To
comply with Section 405(e) the owner or
operator of any publicly owned
treatment works must not violate these
criteria in the disposal of sludge on the
land.
(c) These criteria apply to all solid
waste disposal facilities and practices
with the following exceptions:
(1) The criteria do not apply to
agricultural Wastes. tn^nAhta m«mn»f
and crop residues, returned to the soil as
•fertilizers or soil conditioners.
• (2) The criteria do not apply to
overburden resulting front mining
operations intended for return to the
mine site.
(3) The criteria do not apply, to the
lunrf application of 4f|**t***> sewage or
treated domestic sewage. The criteria do
apply to disposal of sludges generated
by treatment of domestic sewage.
(4) The criteria do not apply to the
. location aad operation of septic tanks.
The criteria do. however, apply to the
disposal of septic tank pumping*.
(5) The criteria do not apply to solid
or dissolved materials in irrigation
return flows.
(6) The criteria do not apply to
industrial discharge* which are point
sources subject to permits under Section
402 of the Clean Water Act as
•mended.
(7) The criteria do not apply to source,
special nuclear or byproduct material as
defined by the Atomic Energy Act as
•mended (68 Stat 923).
(8) The criteria do not apply to
hazardous waste disposal facilities
which are subject to regulation under
Subtitle C of the Act
(9) The criteria do not apply to
disposal of solid waste by underground
well infection subject to the regulations
(40 CFR Part 146) for the Underground
Injection Control Program (UICP) under
the Safe Drinking Water Act as
amended. 42 UAC. 3007 et seq.
The definitions set forth hi Section
1004 of the Act apply to this Part
Special definitions of general concern to
this Part are provided below, and
definitions especially pertinent to
particular sections of this Part are
provided In those sections.
"Disposal" means the discharge.
deposit injection, dumping, spilling.
leaking, or placing of any solid waste or
hazardous waste into or on any land or
water so that such solid waste or
hazardous waste or any constituent
thereof may enter the environment or be
emitted into the air or discharged into
any waters, tneimHnfl ground waters.
"Facility* means any i»«"t •»«!
appurtenances thereto used for the
disposal of solid wastes.
"Leachate" means liquid that has
passed through or emerged from solid
waste and contains soluble, suspended
or misdhle materials removed from such
wastes.
"Open dump" means a facility for the
disposal of solid waste which does not
comply with this part
Trarttrs" intent the act of disposal
of solid waste.
"Sanitary landfill" mna«f a facility for
the disposal of solid, waste which
complies with mis part. • .-•-
"Sludge" means any 'solid, senrisoHd,
or liquid waste generated from a
municipal, commercial, or industrial
wastewater treatment plant water
supply treatment plant or air pollution
control facility or any other such waste
having similar characteristics and effect
"Solid waste" means any garbage,
refuse, sludge from a waste treatment
plant water supply treatment plant or
air pollution control facility and other •
dlt^ardttd m»tia4mtl including solid,
liquid, mmisolid. or contained gaseous
material reuniting from industrial.
i Afiu IPQ^ft GOCDOCUUuuf
activities, but does not tmdndff solid or
dissolved materials in irrigation return
flows or industrial discharges which an
point sources subject to permits under
Section 402 of the Federal Water
Pollution Control Act as amended (86
Stat 880), or source, special nuclear, or
byproduct material as defined by the
Atomic Energy Act of 1954, as amended
(68 Stat 023).
atete means any of the several
States, the District of Columbia, the
Commonwealth of Puerto Rico, the
Virgin Islands* Guam, American Samoa.
and the Commonwealth of the Northern
Marians) MMI«J«.
1287.3 Criteria for nJaaslflcspon ol
Solid waste disposal facilities or
practices which violate any of the
following criteria pose a reasonable
probability of adverse effects on health
or the environment
{257.3-1
(a) Facilities er practices in
floodplains shall not restrict the flow of
the base flood, reduce the temporary
water storage capacity of the flobdplain.
or result in washout of solid waste, so as
to pose) a hazard to t»«™»"» life, wildlife,
or land or water resources.
(b) As used in this section:
(1) "Based flood" means a flood that
has a 1 percent or greater chance of
recurring in any year or a flood of a
equalled or exceeded once in -
100 years on the average over a
significantly long period.
(2) "Floodplain" means the lowland' •
and relatively flat areas adjoining Inland
and coastal waters, including flood-
prone anas of offshore islands, which
are Inundated by the base flood.
(3) "Washout" means the carrying
away of solid waste by waters of the
base flood.
12*7.3-2
(a) Facilities or practices shall not
cause or contribute to the taking of any
endangered or threatened species of
plants, fish, or wildlife.
(b) The facility or practice shall not
result in the destruction or adverse
modification of the critical habitat of
endangered or threatened species as
identified in 50 CFR Part 17.
(c) As used in this section:
(1) "Endangered or threatened.
species" means any species listed as
such pursuant to Section 4 of the
Endangered Species Act
(2) "Destruction or adverse
modification" means a direct or indirect
alteration of critical habitat which
appreciably diminishes theJikelihood of
the survival and recovery of threatened
or endangered species using that
habitat
(3) "Taking" means harassing.
harming, pursuing, hunting, wounding.
killing, trapping, capturing, or collecting
or attempting to engage in such conduct
1257.3-3 Surface Water. '
(a) A facility or practice shall not
cause a discharge of pollutants into
waters of the United States that is in
violation of the requirements of the
National Pollutant Discharge
Elimination System (NPDES) under
Section 402 of the dean Water Act as
amended.
(b) A facility or practice shall not
cause a discharge of dredged material or
fill material to waters of the United
States that is in violation of the
requirements under Section 404 of the
Qean Water Act as amended.
(c) A facility or practice shall not
cause non-point source pollution of
waters of the United States that violates
applicable legal requirements
implementing an areawide or Statewide
water quality management plan that has
been approved by the Administrator
under Section 206 of the Clean Water
Act as amended.
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53482 Federal Register / Vol. 44. No. 179 / Thursday, September 13, 1979 / Rules and Regulations
(d) Definitions of the terms "Discharge
of dredged material". "Point source", .
"Pollutant". "Waters of the United
States", and. "Wetlands" can be found in
the dean Water Act as amended. 33
U.S.C. 1251 et seq., and implementing
regulations, specifically 33 CFR Part 323
(42 FR 37122. July 19. 1977).
{2574-4 Ground Water.
(a) A facility or practice shall not
contaminate an underground drinking
water source beyond the solid waste
boundary or beyond an alternative
boundary specified in accordance with
paragraph (b) of this section.
(b) Only a State with a solid waste
management plan approved by the
Administrator pursuant to Section 4007
of the Act may establish an alternative
boundary to be used in lien of the solid
. waste boundary,, A State may specify
such a boundary only if it finds that
such a change would not result in
contamination of ground water which
may be needed or used for human
consumption. This rinding shall be
based on analysis and consideration of
all of the following factors:
(1) The hydrogeological
characteristics of the facility and
surrounding land:
(2) The volume and physical and
chemical characteristics of .the leachate;
(3) The quantity, quality, and
directions of flow of ground water
(4) The proximity and withdrawal
rates of ground-water users;
(5) The availability of alternative
drinking water supplies:
. (6) The existing quality of the ground
water including other sources of
contamination and their cumulative
impacts on the ground water; and
(7) Public health, safety, and welfare
effects.
(c) As used in this section:
(1) "Aquifer" means a geologic
formation, group of formations, or
portion of a formation capable of
yielding usable quantities of ground
water to wells or springs.
(2) "Contaminate" means introduce a
substance that would cause:
(i) The concentration of that
substance in the ground water to exceed
the "HiKlfwii contaminant level
specified hi Appendix L or
(ii) An increase in the concentration of
that substance in the ground water
where the existing concentration of that
substance exceeds the maximum
contaminant level specified in Appendix
(3) "Ground water" means water
below the land surface in the zone of
saturation.
(4) "Underground drinking water
source" means:
(i) An aquifer supplying drinking
water for human consumption, or" .
(U) An aquifer in which the ground
water contains less than 10,000 mg/1
total dissolved solids.
(5) "Solid waste boundary" means the
outermost perimeter of the solid waste
(projected in the horizontal plane) as it
would exist at completion of the
disposal activity.
82S7.3-8 AppOcatlon to land used for the
production of food-chain crops (Interim
fine)).
(a) Cadmium. A facility or practice
concerning application of solid waste to
within one. meter (three feet)-of the
surface of land used for the production
of food-chain crops shall not exist or
occur, unless in compliance with all
requirements of paragraph (a)(l) (1)
through (ill) of this section or all
requirements of paragraph (a)(2) (i)
through (iv) of this section.
(l)(i) The pH of the solid waste and
soil mixture is 6J or greater at the time
of each solid waste application, except
for solid waste containing cadmium at
concentrations of 2 mg/kg (dry weight)
or less.
(ii) The annual application of
cadmium from solid waste does not
exceed 0.5 kilograms per hectare (kg/ha)
on land used for production of tobacco,
leafy vegetable* or root crops grown for
human consumption. For other food-
CQA1& GfODslh tfi0 Umu&l CftuSUttOS
application rate does not exceed:
Am* 01
toog)
J*yi. iM4a
Si.il
10
1JS
U
(iii) The cumulative application of
cadmium from solid waste does not
exceed the levels hi either paragraph
(a)(l)(ili)(A) of this section or paragraph
(a)(l)(iii)(B) of this section.
(A)
i (kg/Ml
SofCMMI
ctMng*cap«e
(imq/1000
IpH
IpH
S
10
20
(B) For soils with a background pH of
less than 0.5, the cumulative cadmium
application rate does not exceed the
levels below. Provided. That the pH of
the solid waste and soil mixture is
adjusted to and maintained at 6J or
grea»er whenever food-chain crops are
grown.
S-I9-.
10
(2)(i) The only food-chain crop
produced la animal feed.
(il) The pH of the solid waste and soil
mixture is 8.5 or greater at the time of
solid waste application or at the time
the crop is planted, whichever occurs
later, and this pH level is maintained
whenever food-chain crops are grown.
(iii) There is a facility operating plan
which demonstrates how the animal
feed will be distributed to preclude
ingestion by humans. The facility
operating plan describes the measures
to be taken to safeguard against
possible health hazards from cadmium
entering the food chain, which may
result from alternative land uses.
(iv) Future property owners are
notified by a stipulation in the land
record or property deed which states
that the property has received solid
waste at high cadmium application rates
and that food-chain crops should not be
grown, due to a possible health hazard.
(b) Polychlorinated Biphenyls (PCBs).
Solid waste containing concentrations of
PCBs equal to or greater than 10 mg/kg
(dry weight) is incorporated into the soil
when applied to land used for producing
animal feed, including pasture crops for
•n)m«l« raised for milk. Incorporation of
the solid waste into the soil is not
required if it is assured that the PCS
content is less than 0.2 mg/kg (actual
weight) in animal feed or less than 1.5
mg/kg (fat basis) in milk.
(c) As used in this section:
(1) 7Animal feed" means any crop
grown for consumption by animals, such
as pasture crops, forage, and grain.
(2) "Background sou pH" means the
pH of the soil prior to the addition of
substances that alter the hydrogen ion
concentration.
(3) "Cation exchange capacity" means
the sum of exchangeable cations a soil
can absorb expressed in milli-
equivalents per 100 grams of soil as
determined by sampling the soil to the
depth of cultivation or solid waste
placement whichever is greater, and
analyzing by the summation method for
distinctly acid soils or the sodium
acetate method for neutral, calcareous
or saline soils ("Methods of Soil
Analysis. Agronomy Monograph No. 9."
C A. Clack, ed. American Society of
Agronomy. Madison. Wisconsin, pp 081-
901.1965).
(4) "Food-chain crops" means
tobacco, crops grown for human
-------
Federal Register / VoL 44. No. 179 / Thursday. September 13. 1979 / Rules and Regulation*
consumption, and "^"ml feed for
animals whose products an consumed
by humans.
(3) 'Incorporated into the* soil" means
the injection of solid wast* beneath the
surface of the soil or the mixing of solid
waste with the surface soik
(6) "Pasture crops" means crops such
as legumes, grasses, grain stubble and
stover which are consumed by antmala
while grazing.
(7) "pH" means the logarithm, of the
reciprocal of hydrogen ion
concentration.
• (8) "Root crops" means plants whose
edible parts an grown below the
surface of the soft.
(9) "Soil pH" is the value obtained by
sampling the soil to the depth of »
cultivation or solid waste placement
whichever is greater, and analyzing by
the electrometrie method. ("Methods of
Soil Analysis. Agronomy Monograph
No. 9," CA, Black. eA, American
Society of Agronomy. Madison,
Wisconsin, pp. 914-428,1985.)
(a) Disease Vectors. The facility or
practice' shall not exist or occur unless
the on-site population of disease vectors
is minimized through the periodic
application of cover material or other
technique* as appropriate so as to
protect public health.
(b) Sewage sludge and septic tank
pumpingt (Interim Final). A facility or
not
in compliance with
paragraphs (b) (1). (2) or (3) of this
section.
(1) Sewage sludge that is applied to
the land surface or is incorporated into
the soil is treated by a Process to
Significantly Reduce Pathogens prior to
application or incorporation. Public
access to the facility is •controlled for at
least 12 months, and grazing by •
whose products an consumed by
human* is prevented for at least on*
month. Processes to Sta
•^ A .^. d ^ T?
Reduce Pathogens an listed in
Appendix 0, Section A. (These
provisions do not apply to sewage,
sludge disposed of by a trenching or
burial operation.)
(2) Septic tank pumping* that are
applied to the land surface or
incorporated into the soil an treated by
a Process to Significantly Reduce
Pathogens (as listed in Appendix Q.
Section A), prior to application or
incorporation, unless public access to
the facility is controlled for at least 12
months and unless grazing by animal^
whose product* an consumed by
humans is prevented for at least one
month. (These provisions do not apply
to septic tank Dumpings disposed of by a
trenching or burial operation.)
(3) Sewage sludge or septic tank
pumpings that an applied to the land
surface or an incorporated into the soil
an treated by a Prbcess to Further
Reduce Pathogen*, prior to application
or incorporation, if crops for direct
human consumption an grown within 18
months subsequent to application or
incorporation. Such treatment is not
required if then is no contact between
the solid waste and the edible portion of
the crop; however, m this case the solid
waste is treated by a Process to
Significantly Reduce Pathogens, prior to
application; public access to the facility
is controlled for at least 12 month*; and
grazing by animal* whose product* en
consumed by himm^if is prevented for at
least one month. If crop* for direct
human consumption an not giuwn'
within 18 month* of application or
incorporation, the requirement* of
paragraphs (b) (1) and (2) of this section
apply. Processes to Further Reduce
Pathogens an listed in Appendix n.
Section B.
fc) A* used m thi* section:
(1) "Crop* for direct human
consumed by humans without
processing to minimize pathogen* prior
to distribution to the consumer.
(2) "Disease vector" means rodent*,
file*, and mosquitoes capable of
transmitting itisneie to human*.
(3) "Incorporated into die soil" mean*
the injection of solid waste beneath the
surface of the soil or the mixing of solid
watte with th« surface soil
(4) "Periodic application of cover
material" m*""t me application mni\
compaction of soil or other suitable
material over disposed solid waste at
the end of each operating day or at such
frequenda* and hi such a •^•««"*T M to
reduce the risk of fin and to imped*
vectors' accesa to the) waste.
(5) "Trenching or burial operation".
m«mnf the placement of sewage sludg*
or septic tank Dumpings in a trench or
other natural or man-made depression
and the covering with Mil or other
suitable material at the end of each
operating day such that dw waste* do
not migrate to the surface.
I2S74-7 Air.
(a) The facility or practice shall not
engage in open burning of residential.
commercial, institutional or industrial
solid waste. This requirement doe* not
apply to infrequent burning of
agricultural wastes hi the field,
silviculture! wastes for forest
management purpose*, land-clearing
debris, diseased trees, debris from
emergency clean-up operations, and
ordnance.
• (b) The facility or practice shall nor
violate applicable requirements
developed under a State implementation
plan approved or promulgated by the
Administrator pursuant to Section 110 of .
the Clean Air Act
(c) As used in this section "open
burning" means the combustion of solid
waste without (1) control of combustion
air to maintain adequate tempefature for
efficient combustion. (2) containment of
the combustion reaction in an enclosed .
device to provide sufficient residence
time and mixing for complete
combustion, and (3) control of the
emission of the combustion products.
9257.3-a Safety.
(a) Explosive gases. The
concentration of explosive gases
generated by the facility or practice
shall not exceed>
(1) Twenty-five percent (25%) of the
lower explosive limit for the gases in
facility structures (excluding gas control
or recovery system components); and
(2) The lower explosive limit for the
gases at the property boundary.
(b) Fires. A facility or practice shall
not pose a hazard to the safety of
persons or property from fires. This may
be accomplished through compliance
with § 257.3-7 and through the periodic
application of cover material or other
techniques as appropriate.
(c) Bird hazards to aircraft. A facility
or practice disposing of putrestible
waste* that may attract birds and which
occurs within 10.000 feet (3.048 meters)
of any airport runway used by turbojet
aircraft or within 5400 feet (1324
meters) of any airport runway used by
only piston-type aircraft shall not pose a
bird hazard to aircraft
(d) Access. A facility or practice shall
not allow uncontrolled public access so
a* to expose die public to potential
health and safety hazards at the
disposal site.
(e) As used in this section:
(1) "Airport" means public-use airport
open to the public without prior
permission and without restrictions
within the physical capacities of
available facilities.
(2) "Bird hazard" means an increase
in the likelihood of bird/aircraft
collisions that may cause damage to the
aircraft or injury to its occupants.
(3) "Explosive gas" mean* methane
(CH.).
(4) "Faculty structure*" mean* any
buildings and shed* or utility or
drainage line* on the facility.
(S) "Lower explosive limit" mean* the
lowest percent by volume of a mixtura
of explosive gases which wtU propagate
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53484 Federal Register / Vol. 44, No. 179 / Thursday, September 13. 1979 / Rules and Regulations
a flame in air at 25*C and atmospheric
pressure.
(6) "Periodic application of cover
material" means the application and
compaction of soil or other suitable
material over disposed solid waste at
the end of each operating day or at such
frequencies and in such a manner as to
reduce the risk of fire and to impede
disease vectors' access to the waste.
. (7) "Putrescible wastes" means solid
waste which contains organic matter
capable of being decomposed by
microorganisms and of such a character
and proportion as to be capable of
attracting or providing food for birds.
1257.4 Effective date.
These criteria become effective
October 15.1979.
Appendix 1 .
The maximum contaminant levels
promulgated herein are for use in determining
whether solid waste disposal activities
comply with the ground-water criteria
(I 257.3-4). Analytical methods for these
contaminants may be found in 40 CFR Part
141 which should be consulted in its entirety.
1. Maximum contaminant levels for
inorganic chemicals. The following are the
maximum levels of inorganic chemicals other
than fluoride;
Gonnminim
UMl
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Federal Register / Vol. 44. No. 179 / Thursday. September 13.1979 / Proposed Rules
53465
ENVIRONMENTAL PROTECTION
AGENCY
[40 CFR Part 257]
(FRU 1234-2J
Criteria for Classification of SoDd
Waste Disposal Facilities and
Practices Amendment
AGENCY: Environmental Protection
Agency.
ACTION: Proposed Rule.
SUMMARY: This proposed amendment
would expand the list of maximum
contaminant levels (MC!.'«) used in the
ground-water quality standard of the
Criteria for Classification of Solid
Waste Disposal Facilities and Practices
(40 CFR Part 257). The criteria were
_ developed and issued as a regulation
under the authority of the Resource
Conservation and Recovery Act of 1976.
The purpose of the criteria is to provide
the basis for determining whether solid
waste disposal facilities or practices
pose no reasonable probability of
adverse effects on health or the
environment
The ground-water quality standard
which has been promulgated in the
criteria contains maximum contaminant
levels for health-related parameters
{specific inorganic and organic
chemicals, coliform bacteria, and
radioactive contaminationj. This
amendment proposes limits for the
following additional eleven
contaminants: Chloride, color, copper.
foaming agents, iron, manganese, odor.
pH. sulfate. total dissolved solids, and
zinc. These additions are designed to
protect ground water from odor,
discoloration, and taste-causing
contaminants.
OATM: Comments are due November 13.
1979. One hearing will be held it will be.
on November 1.1979 at 9:00 AM.
Registration for the hearing wiH begin at
8:30 AM. *
AOOftesstS: The official record for this
amendment (Docket No. 4004.2) is
located in room 2107. 401 M Street. SW,
Washington. D.C. 20460. The record is
available for viewing from 9:00 AM to
4:00 PM Monday through Friday,
excluding holidays.
The public hearing will be held in
room 3906,401M Street SW,
Washington. D.C Persons wishing to
make oral presentations are requested
to restrict their presentations to less
than ten minutes.
Written comments may be submitted
at the hearing or mailed to: Comments
Clerk, Amended Criteria. Office of Solid
Waste (WH-564), EPA. Washington.
D.C. 20460.
FOR FURTHER INFORMATION CONTACT:
Mr. Truett V. DeGeare. Jr.. P.E. at the
above address or at (202) 755-9120.
SUPPLEMENTARY INFORMATION:
Authority
The statutory authorities for this
proposed amendment are Sections 1008
(a)(3) and 4004 (a) of the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Actofl976(42UAC6907(A)(3)and ..
6944{a)), later referred to as RCRA or
the Act also. Section 405(d) of the dean
Water Act as amended (33 U.S.C 1345).
Discussion
This action proposes to amend the
Criteria for Classification of Solid
Waste Disposal Facilities and Practices
(40 CFR Part 257) which has'been
promulgated pursuant to the above
authorities.
The purpose of the criteria is to
provide the basis for determining
whether solid waste disposal activities
pose
no reasonable probability of
adverse effects on health or the
environment* * *" (RCRA. Section
4001). The criteria define an open dump
(RCRA Section 4004). the minimum
elements of prohibited open dumping
practices (RCRA Section 1008(a)(3)). and
the effects which must be avoided by
POTW owners and operators (CWA
Section 405). For a full discussion of the
criteria's role see the Preamble to that
regulation.
The criteria provide a ground-water
quality standard consisting of specified
substances or parameters. When a .
facility or practice causes protected
?: jund water to exceed the
contamination levels specified in that
standard, the facility fails to comply
with the criteria. The standard which
has been promulgated in the criteria
contains maximum contaminant levels
for health-related parameters. This
amendment proposes limits for the
following additional eleven
contaminants: chloride, color, copper,
foaming agents, iron, manganese, odor.
pH. sulfate. total dissolved solids, and
zinc, in order to protect against
malodorous, discoloring, foul-tasting
substances in ground water.
The criteria provide that solid waste
disposal facilities or practices shall not
contaminate an underground drinking
water source beyond the solid waste
boundary. The italicized terms are
specifically defined for their use in the
ground-water section of the criteria.
Underground drinking water sources
are aquifers supplying drinking water
for human consumption or aquifers in
which the ground water contains less
than 10,000 mg/1 total dissolved solids.
Solid waste boundary i* the outermost
perimeter of the solid waste (projected
in the horizontal plane) as it would exist
at completion of the disposal activity.
(There is a provision in the criteria
allowing a State with an approved State
solid waste management plan to
establish an alternative boundary to be
used in lieu of the solid waste boundary
in accordance with specified procedures
and conditions). Contamination is
defined as the introduction of listed
substances to ground water so as to
cause (1) the concentration of the
substance in the ground water to exceed
the maximum contaminant level
specified, or (2) an increase in the •
concentration of the substance in the
ground water where the existing
concentration of the substance exceeds
the specified maximum contaminant
level
As promulgated, the criteria establish
specified maximum contaminant levels
which were designed to be protective of
the health of persons consuming the
ground water. It includes levels for ten
inorganic chemicals, six organic
chemicals, coliform bacteria, and
radioactive contaminants. These levels
are based on the National Interim
Primary Drinking Water Regulations (40
CFR Part 141).
The criteria were initially proposed
for public comment at 43 FR 4942 on
February 6.1978. In that proposal, the
water quality standard for ground water
used or usable for human consumption
was that the water not be made unfit for
-------
53466 Federal Register / Vol. 44. No. 179 / Thursday. September 13. 1979 / Proposed Rules
human consumption. The maximum
contaminant levels (MCL's) of the
National Inicrlm Primary Drinking
Water Regulations were included for
determining fitness. Commenters noted
that Ihe term "fitness" was too vague to
be workable. It was unclear whether
foul-smelling, discolored, but not
unhealthful water is "fit" [or
consumption. Others noted that since
the proposed standard did not spc-ify
the contaminants or the concentrations
at which unfitness would be reached
enforcement would be troublesome. In
considering the merits of these
comments, the Agency decided that the
ground-water quality standard should
be specific regarding contaminants and
levels which represent adverse effects
on public health and the environment
Since the maximum contaminant level*
in the National Interim Primary Drinking
Water Regulations were the only
specific contaminants and levels which
were contained in the proposed criteria.
th« Agency has decided to promulgate
the criteria based only on those
contaminant levels. Before other
contaminant levels are incorporated in
the standard, public scrutiny and the
opportunity for comment should be
offered. Thus, this amendment is
proposed for public review.
RCRA clearly provides that the
criteria should address effects on the
environment as well as on health. The
House Report (Mo. 94-1491) instructs
that the legislative standard for the
Administrator in developing the Criteria
is "no reasonable chance of adverse
effects" on the environment The report
defines an open dump as a land disposal
site where discarded materials are
deposited with little or no regard for
pollution controls or aesthetics. It
provides specific examples of the
impacts to be prevented, including 47
cases of recorded fishkills and 30 cases
of recorded contamination of drinking
water wells. The adverse impact on the
ground water at most of this cited
examples was principally due to high
color and odor characteristics
associated with iron, manganese and
other contaminants not generally
associated with direct health effects. It
is thus evident that Congress intended
to include foulsmelHng, discolored
ground water as an adverse
environmental effect.
The Agency has reviewed monitoring
data from a number of facilities which
indicates that about half of those
monitored facilities have caused ground
water to exceed the health-based
maximum contaminant levels
promulgated in the criteria. An
additional thirty percent of these
contain unacceptable levels of other
(non-health-related) contaminants.
Additional research is needed regarding
the probability that disposal activities
may cause adverse environmental
effects without posing direct health
threats. Nevertheless, the existing
literature does indicate that Including
malodorous, distasteful and discoloring
contaminants hi the ground-water
quality standard might significantly
increase the number of facilities in
violation, and that unless these
contaminants are included in the
standard, a significant number of
facilities which cause ground water to
be loul-smeiling and bad-tasting will not
be classified as unacceptable.
Therefore, the Agency has decided to
propose an amendment to the criteria's
ground-water quality standard which
• would include contaminant limitations
protective against malodorous,
distasteful, foaming, staining, corrosive
and otherwise adverse effects on ground
water. In this proposed amendment.
comment is being solicited on the use of
the maximum contaminant levels
published in the National Secondary
Drinking Water Regulations (40 CFR
Part 143) for. that purpose. Eleven
contaminant levels were specified in 40
CFR Part 143 which are of significance
hi the classification of disposal
activities; some discussion is provided
below, giving rationale and potential
problems for each of the eleven and
pertinent comments received by the
Agency when the National Secondary
Drinking Water Regulations wen
originally proposed.
A. Chloride (250 mg/1). The proposed
MCL for chloride is the level above
which the taste of the water may
become objectionable to the consumer.
In addtion to the adverse taste effects,
high chloride concentration levels in the
water will contribute to the
deterioration of domestic plumbing.
water heaters, and municipal water
works equipment Higher concentrations
may also be indicative of the presence
of sodium and other contaminants
commonly occurring in leachate. which
are not listed in either of the national
drinking water regulations and. thus, not
directly a part of the ground-water
quality standard.
Leachate commonly contains high
concentrations of chlorides. Since
chloride ions are quite mobile in both
saturated and unsaturated zones,
isograms of chloride concentrations are
particularly useful for inscribing
leachate plume envelopes. Inmost
cases, the chloride concentration is a
key parameter which will indicate the
potential presence of any other leachate
constituent.
Comments received by the Agency
the proposed level for chlorides
concerned the high costs of removal and
consumer tolerance or acclimatization.
Neither of these issues is appropriate for
consideration in the water quality
standard for the criteria. High removal
costs support keeping the contaminant
out. and leachate-caused concentrations
are too unstable to allow
acclimatization. In regions where
naturally occurring or background
concentrations of chloride are
consistently high, pe- pie can become
tolerant of the taste well in excess of the
MCL In such regions, the National
Secondary Drinking Water Regulations
suggest that States exercise discretion.
establishing limitations commensurate
with local conditions. However, such
discretion is inappropriate for a leachate
induced violation of the water quality
standard. The concentrations of chloride
often fluctuate widely in a leachate
plume, and their introduction would
represent a new condition to which
acclimatization may take years, and
increasing concentrations of chlorides is
a harbinger indicating the likelihood of
the presence of harmful constituents of
leachate.
B. Color (IS Color Units). Color may
be indicative of the presence of a host
organic materials against which
protection is not provided elsewhere in
the ground-water quality standard.
Many of these organic materials are of
direct health concern and of indirect
concern as precursors for the formation
of trihalomethanes and other
halogenated organic compounds.
Experience has shown that changes in
color levels will stimulate consumers'
complaints more readily than a
relatively high constant level. The MCL
at 15 color units is set quite high:
consumers of clear water would be
immediately aware of the presence of
leachate if it were to cause color to
exceed that level The color standard is
not redundant for the staining problems
which are caused by iron or manganese,
since these constituents are not visible
until oxidation, usually only occurring
after withdrawal of the water.
The only comments rceived on the
proposed color standard were that it
was set too high. Support for a lower
MCL included the argument that
protection from halogenated organic
compounds would be enhanced. This
argument is quite significant for solid
waste purposes. Fifteen color units may
allow quite a high level of contaminants
to be present. However, the Agency has
proposed inclusion of these compounds
directly in the Primary Regulations'
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Federal Register /.Vol. 44. No. 179 / Thursday. September 13. 1979 / Proposed Rules 531^7
(Federal Register notice. February 9,
1978.40 CFR Part 141). The approach
proposed herein, then, is to employ! the
higher color standard and wait for me
specific MCL to be established for those
compounds in the Primary Regulations.
C. Copper (1 mg/1). Copper, in trace
quantities, is an essential and beneficial
element in human metabolism but T
imparts an undesirable taste to drinking
water at the MCL. Small amounts are
generally regarded as non-toxic, but
large doses may produce emesis, and
prolonged'consumption may result in
liver damage. Copper, in some soft
waters, will cause staining at the MCL.
Copper is generally quite low in both
native ground water and in leachate
from mixed .municipal refuse: it
generally occurs at concentrations Uss
than 20 micrograras per liter except at .
facilities receiving wastes from . •
industrial sources. The metal is used
extensively in electroplating, chemical
manufacturing and in oil refining, and
the salts of copper are used in textiles.
photography and pesticides. The
inclusion of copper in the standard
should only affect the assessment of
industrial waste facilities.
High cost of removal was the basis for
comments for relaxing the MCL for
copper. This comment supports
maintaining stringent wider qualify
standards for the criteria. In responding
to that comment the Agency notes that
. the MCL was only exceeded in 1.8% of
the samples in EPA's 1970 Community
Water Supply Study, and that wherever
high copper concentrations were
observed the uther heavy metals were
' also high. Consequently, the inclusion of
the copper standard appears
appropriate.
0. Foaming Agents (0 J mg/1).
Foaming is a characteristic of water
which has been contaminated b> the
presence of detergents and similar
substances. Water which foams in
excess of the MCL will exhibit
undesirable taste uiid foaming
properties. Comments received
suggested that the MCL was too
stringent and that since the analytical
procedure specified for the detection of
foaming agents is the tnethyiene blue
test, the MCL should be stated in terms
of methylene blue active substances.
The 0.5 mg/1 limit for foaming agents
is based upon the fact that at higher
concentration levels the water may
exhibit undesirable taste and foaming
properties. Also concentrations above
the limit may be indicative of
undesirable levels of pollutants from
questionable sources, such as
infiltration by st .vage. Because there is
no standardized foamability test this
--"perty is determined indirectly by
measuring the antonic surfactant
concentration in the water utilizing the
••••a procedure specified for methylene
active substances. Many substances
other than detergents will cause foaming
and in:erfere with the methylene blue
test. Since moat of these interferences
are positive, the Agency believes that
the MCL designated for foaming agents
is the correct one.
E. Iron (0.3 mg/1). Iron is a highly
objectionable constituent of water
supplies. It imparts a brownish
discoloration to laundry, a bitter or
astringent taste to drinking water, and
stains to clothing, dishes and plumbing
fixtures. However, in some areas of the
country, the native concentration of iron
well exceeds the MCL The limit on iron
may be one of the most frequently
violated standards in. the criteria. Iron is
very common in leachate, quite mobile
in most soils, and, significantly, the
concentration may be further elevated
due to the release of soil-fixed iron as an
effect of pH and other changes caused
by the passage of leachate through the
soil
At 1.0 mg/l a substantial number of
people will note the bitter astringent
taste of Iran. Also, at this concentration
level the staining problems associated
with iron will be pronounced, thus
making the water unpleasant to the
consumer and unsatisfactory for most
industries. Therefore, the Agency
believes that the proposed MCL of 0.3
mg/1) for iron is reasonable.
F. Manganese (O05 mg/1). Manganese,
like iron, discolors and imparts taste. At
concentrations exceeding MCL it can
cause build-up in distribution piping
which can slough off and cause laundry
spotting and unaesthtic black
precipitate*. Relatively fewer regions
have high native manganese than have
high native iron: however, it is not
unusual For Instance. New York State
Health Department surveys indicate that
manganese is found in every public
drinking water system, and exceeds the
MCL in about 10*. The Agency received
no comments on the proposed standard
for mqngan^iMfi
G. Odor (3 threshold odor number).
The principal reason for establishing
this MCL at 3 Threshold Odor Number
in the Secondary Drinking Water
Regulation* is that beyond that odor •
level, consumers would be tempted to
avoid the public water system and
choose alternative, possibly
unmonitored. water sources. Thus, it is
an odor level which is considered
definitely unacceptable, particularly
when newly or intermittently
introduced, as may be the case from
leachate.
Odor is due to the presence of a
variety of substances. Most organic and
some inorganic chemicals contribute
taste and odor. Because odorous .
materials are detectable when present
in only a few micrograms per liter and
are often complex it is usually
impractical and often impossible to
isolate and identify the odor-producing
chemical Although many of the odor-
producing chemicals are not known to
have other adverse effects, inclusion of
odor in the standard has the additional
advantage of warning of the presence of
organic and inorganic pollutants often .
associated with municipal and industrial
wastes but not otherwise listed in the
standard.
Comments received by the Agency on
the proposed regulation suggested that
the proposed MCL should be deleted
.from the regulations, arguing that the
threshold odor number is -an arbitrary
value and the analytical results
obtained vary greatly from person to
person. On the other hand, one
commenter suggested that the MCL
should be lowered to one. The level of
three was determined by the Agency to
be appropriate because most consumers
find the water at this limit unacceptable.
Determination of odor at that level is
considered reliable, but below the MCL
it is difficult because of possible
interferences from other sources and
variation of the sensing capabilities of
the personnel performing the test •
H.p//(8J—8.5). A variety of health
and environmental effects are %
associated with the range of pH which
could result from contamination by
leachate. pH is an important
determinant of corrosivity; below 6.5.
significant corrosion effects become
noticeable. The treatability of many of
the other parameters in the water
quality standard is also dependent upon
pH. For example, while a facility might
emit no selenium, the selenium
treatment which would be required
because of high background
concentrations could be rendered
ineffective due to the facility's effect on
pH. Also. pH can interfere with existing
treatment because of its effects on the
efficiency of uhlorination and on the
solubility of toxic metals.
Naturally occurring pH is found lower
than two in some volcanic situation*
and nearly 11 in contact with some
silicates in desert basins. However.
acidities and alkalinities of these
magnitudes are quickly reduced by
reaction with their environment Most
ground waters which lie subject to
contamination by solid waste disposal
activities are subjected also to
atmospheric and other neutralizing
4-A130«2
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53468 Federal Register / Vol. 44. No. 179 / Thursday. September 13.1979 / Proposed Rules
influences. A reasonable range of pH at
the water table may be considered to lie
between 4 and 9. Cumbers which also
represent the reported range of the pH
of leachate. Naturally occurring pH in
ground water is sightly basic in most
regions of the country, with sufficient
buffering capacity to withstand
significant stresses associated with solid
waste disposal activities. Leachate from '
mixed municipal wastes is quite erratic,
varying by both age and constituents of
the waste. The occurrence of
contaminated ground water in which the
MCL for pH is exceeded after a
reasonable mixing zone is highly
indicative of adverse health and
environmental effects.
Most of the comments received by the
Agency concerned the upper limit for
pH. Since raw leachate seldom exceeds
the upper limit, these comments are not
applicable for the Criteria. The
remainder of the comments concerned
corroaiviry. The Agency is still
evaluating tests and maximum
concentration levels for corrosivity:
these comments and the issue of
corrosivity in leachate will be addressed
on conclusion of the evaluations.
L Sulfate (250 mg/1). Sulfate is a
commonly occurring natural constituent
of ground water in many regions of the
country. Some States report as much as
10 percent of the underground drinking
water supplies exceed the MCL Sulfate
is listed in the Secondary Drinking
Water Regulations principally because
of its cathartic or laxative effect in
humans and to a lesser extent because
of taste considerations. Its presence in
leachate is frequently attributable to
industrial sources of refuse such as
textile and paper industries. Leachate
analyses frequently report sulfate far
below MCL, with occasional reports as
high as 1500 to 2000 mg/1. For these
facilities it is a good indicator of the
extent of contamination, and its laxative
and taste effects are useful indices of
the adverse effects.
Comments received by the Agency
were not appropriate to this amendment
considering the objectives of the criteria.
Cost of treatment, and long-term
acclimatization do not suggest allowing
greater concentrations to result from
land disposal.
J. Total Dissolved Solids (TDS) (500
mg/1). Dissolved solids content is useful
as 'he single parameter which most
closely describes a given water in terms
of usefulness of the native water and
influence of a hr'erogenous contaminant
source, it reflects the influence of all the
dissolved constituents. It reflects
mineralization and. thi;*. 'he taste of
water. Adn" '-':.•!!•.• i: .-.v.e.'snttea
deterioration -•?' oiumbi-.r« *nd water
"\tures. iOv.o s!ud> f-r1- » .vH-iction of
r.f w;:ter '-t ,.i. r \'.\r •& 200 TJg/
one
1 TDS). Although it is a very non-specific
indicator which may be difficult to
isolate by source, it is useful for'
covering both hardness and corrosivity
effects which are not otherwise a part of
the water quality standard of the
criteria.
In some regions of the country,
particularly in the Southwest, the ground
water commonly exceeds the MCL for
TDS. A dissolved solids limit (10,000
mg/1) is used as the demarcation in the
criteria for water too contaminated to
warrant protection. Leachate is high in
TDS. commonly reported between 5,000
and 40.000 mg/L
Excessive hardness, taste, mineral
deposition and corrosion are among the
associated adverse effects listed in the
rationale for limiting TDS in the
Drinking Water Regulations. Comments
received on TDS were mostly requests
for flexibility or for a higher limit from
water suppliers in area of high
background TDS levels. No comments of
concern to the criteria addressed areas
of low background TDS.
K. Zinc (5 mg/1). Like copper, zinc is
an essential and beneficial element in
human metabolism, but it imparts an
undesirable taste to water. It also can
create a milky appearance in water and
cause a greasy film on boiling. In native
ground water it is seldom found in
concentrations exceeding 2 or 3 mg/L
Frequently, it is reported in leachate at
concentrations below the MCL:
however, in industrial areas zinc
concentrations in leachate have been
reported up to 370 mg/1. The Agency
received no comments on the proposed
MCL
Key Issues
EPA believes that this list of eleven
maximum concentration levels may be
appropriate for addition to the criteria.
In order to properly solicit public
comment yet not delay State
implementation of RCRA. the Agency is
promulgating the criteria at the same
time as .this amendment is being
proposed: the alternative of
promulgating interim regulations, with
the expanded ground-water quality
standard in effect during the comment
period, was rejected.
Several key questions are specifically
highlighted for public comment. First,
are these eleven proposed contaminant
levels appropriate for the objectives of
the criteria? Are they characteristic of
leachate? Are they too commonly
present in ground water to serve the
purpose? Secondly, are there additional
contaminants or characteristics which
should be used to determine adverse
effects on health and environment?
Thirdly, what effect will the expansion
of the standard have on compliance
with the criteria? Will only those
facilities with impervious liners for the
prevention of discharges be acceptable.
or will there be only a small incremental
increase in non-complying facilities
consisting of sites which do cause
adverse environmental effects?
We specifically highlight for comment
the fact that several States have
considered these contaminant levels as
they were proposed in the National
Secondary Drinking Water Regulations
and have chosen to promulgate State
drinking water regulations based on
higher or lower levels. Should these
criteria permit similar State-by-State
variations in the ground-water quality
standard? This question should be
addressed considering that without
State discretion, some State agencies
may be in the awkward position of
requiring facilities to close or upgrade
for causing effects which the State
considers acceptable in drinking water
supplies. Yet on the other hand, in order
to protect against the potential for
inconsistencies and abuses, a flexible
standard will require adding a
justification and approval process. This
is a level of EPA oversight not otherwise
needed in implementation of the
regulation.
Comments are also requested on the
practicality of implementation (such as
replicability of taste and odor tests),
potential impacts of this amendment on
segments of society and the economy,
and the adequacy of the amended
regulation in providing for protection of
the public health and the environment
Written public comment is invited on all
issues raised by the proposal
DatedfSeptember 10.1979.
Douglas M. Cottle,
Administrator.
Appendix A [Amended]
Accordingly. 40 CFR Part 257 is
amended by adding to Appendix A a
paragraph 6 as follows:
• • • • •
6. Maximum contaminant levels for other
than health effects.
The following are the maximum levels for
odor, taste and miscellaneous contaminants:
Chwnn* MO mg/l.
Color - IS Caoi mwi.
COOMT t mg/l.
Foaming aoana.- 05 mg/l
Mangmn* 0 05 mg/l
Oder 3 nvOTftoM odor Ma
pM aS-A.5.
Sult«I» MO mg/l
TOS 500 mg/l
Znc—. _J 5 mg/l
(FH Ooe. 79-2SU] nM 9-i:-?» k45
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