&EPA
Sum
Environmental
Ao«ncv
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Solid Watte «nd
- Re*0on»e
DIRECTIVE NUMBER: 9487.50-iA
TITLE: Waiver from Double Liner Requirements Pursuant
to Section 3015 (b) (1) and 40 CFR Section 265. 301 (c)
for CECOS International Inc., Williamsburg, 0
APPROVAL DATE:
EFFECTIVE DATE: n/is/85
ORIGINATING OFFICE: osw
Q FINAL
D DRAFT
STATUS:
REFERENCE (other document*):
A- Pending OMB approval
B- Pending AA-OSWER approval
C- For review &/or comment
[ ] D- In development or circulating
headquarters
'£ DIRECTIVE DIRECTIVE
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United States Environmental Protection Agency
fl _ _ Washington. DC 20460
V>EPA OSWER Directive Initiation Reauest
Originator Information
Name of Contact Person Mail Code • Telephone Nurr
Kent Anderson WH-565E 382-41
Lead Office j~l Approved for Review
nncoo f~~l Signature of Office Director
OtHR | | OWPE I I
y OSW Q AA-OSWER ^J-^UO_Jt-> U,JUuUn k? (H OLU- COzUjL.
Interim Directive Number
Vn/^fl.'i / 1 A
A 1"(P T-lf.~'\f\
iber
554
Date
Title X >
"Waiver from Double Liner Requirements Pursuant to Section 3015 (b) (1)
and 40 CFR Section 265.301(c)" for CECOS International, Inc.,
Williamsburg, Ohio, Landfill Cell No. 9.
Summary of Directive
CECOS International, Inc., in a letter to EPA of May 30, 1985,
formally requested a waiver, as provided for in Section 3004 (o) (2)
of the Solid Waste Disposal Act, as amended, from the double liner
requirements of Section 3004 (o) (1) for their previously constructed
Cell No. 9. lr*-1'"T
The attached transmittal memorandum, Waiver, Fact Sheet, and
Evaluation Report resulted in a /finding that the CECOS Cell No. 9
design and operation can be considered to be as effective as
the interim statutory design of Section 3004 (o) (5) (B) and 40 CFR
Section 265. 301 (a) under the conditions stated in the Waiver.
Type of Directive /Manual. Policy Directive. Announcement, etc.l ] Status
) U£J Draft
Waiver /-K'iiur -i. ,• J- D Final
fLJ New
LJ Revision
Does this Directive Supersede Previous Directive^)? QJ Yes XX N° Doe's It Supplement Previous Directive(s)? [_] Yes ^ No
If "Yes" to Either Question, What Directive (number, title/
Review Plan
D AA-OSWER D OUST D OECM D Other fSpecifyl
LJ OERR S OWPE D OGC , ^ }
Q OSW S Regions (V Onl£2 QPPE ;.>•>,,.•>•; f- •• J
' * .r~
This Request Meets OSWER Directives System Format
Signature of Lead Office Directives Officer
Signature of OSWER Directives Officer
i Date
Date
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To I i
'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
NOV I 8 !9S:
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
OSWER Directive
MEMORANDUM
SUBJECT: CECOS International, Inc., Williamsburg, Ohio, Landfill
Cell No. 9—Waiver from Double Liner Requirements
FROMs
Marcia Williams, Director ^\OA.cA*~' ^-o i JjL
Office of Solid Waste (WH-562) £?
TO: Basil Constantelos, Director
Waste Management Division, Region V
r CECOS International Inc., in a letter to John Skinner y
dated May 30, 1985, requested a waiver from the minimum techno-
logical requirements of Section 3004(o)(l) of the Solid Waste
Disposal Act, as amended (SWDA), for Landfill Cell No. 9 at
CECOS' Aber Road Facility, Clermont County, Ohio.
As you know, the general authority to grant waivers for
hazardous waste disposal facilities, such as this request, has
been delegated to the Regional Administrator. Because this was
the first request for a waiver from the minimum technological
requirements and because we have not developed detailed guidance
on evaluating such waiver requests, our office, in conjunction
with Ohio EPA and the U.S. EPA Offices of Region V, the Office
of Research and Development - Cincinnati, the Office of General
Counsel, the Office of Waste Programs Enforcement, and the Office
of Enforcement and Compliance Monitoring, has developed the
attached draft Waiver from Double Liner Requirements Pursuant to
Section 3015(b)(l) and 40 CFR §265.301(c).
As we have discussed with your staff, we are turning the
draft waiver over to your office for completion of the waiver
determination process. This will include the public notice and
public hearing requirements of 40 CFR Part 124 for the draft
waiver and the issuance (or denial) of the final waiver. Because
of the public interest in the general vicinity of the CECOS
facility, a public hearing would be advisable. In the interest
of concluding the Agency's action on this waiver request as
quickly as possible, I believe it is appropriate to announce the
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time and place of the public hearing concurrent with the request
for public comments. I understand that CECOS is also interested
in a final determination in this case as soon as possible.
The package of materials that I am attaching for the purpose
of assembling an administrative record regarding this waiver
request include:
- Draft Waiver from Double Liner Requirements Pursuant to
Section 3015(b)(l) and 40 CFR §265.301(c)
- Fact Sheet
- Correspondence between CECOS and EPA on Cell No. 9
- Memoranda documenting meetings between CECOS and EPA
- CECOS' evaluation report entitled "Evaluation of Leachate
Collection and Liner System Performance, Facility No. 9
CECOS International, Clermont, Ohio", May, 1985.
- CECOS International, Clermont County, Ohio, Secured Chemical
Management Facility No. 9, AS BUILT drawings sheets 1 to 10,
January 31, 1985.
- US EPA's evaluation report entitled "Waiver Evaluation
for CECOS International Aber Road Facility Secure Chemical
Management Facility No. 9, Clermont County, Ohio",
October, 1985.
- Draft Minimum Technology Guidance on Double Liner Systems
for Landfills and Surface Impoundments -- Design, Construction,
and Operation. December 19, 1984.
- Draft Guidance on Implementation of Minimum Technology
Requirements of HSWA of 1984. January 31, 1985.
- Draft Guidance on Implementation of the Minimum Technological
Requirements of HSWA of 1984, Respecting Liners and Leachate
Collection Systems, Reauthorization Statutory Interpretation
#5D, EPA/530-SW-85-012, May 24, 1985.
- Draft Minimum Technology Guidance on Double Liner Systems
for Landfills and Surface Impoundments -- Design, Construction,
and Operation, EPA/530-SW-85-014, May 24, 1985.
- Construction Quality Assurance for Hazardous Waste Land
Disposal Facilities, EPA/530-SW-85-021, October, 1985.
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- Federal Register, Vol. 50, No. 135, July 15, 1985.
- CECOS International "SCMF No. 9: Summary Geotechnical
Report", January 1985 (This report is not attached but
is already in the Regional Office).
- CECOS International "SCMF No. 9: Field and Laboratory
Quality Control Data of HDPE Liner Construction",
February 1985 (This report is not attached but is already
in the Regional Office).
- CECOS International "SCMF No. 9: Field Quality Control
Data of Compacted Soil Liner Construction," January 1985
(This report is not attached but is already in the Regional
Office).
Attachments
cc: Waste Management Division Directors Regions I-IV and VI-X
r (with three attachments)
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FACT SHEET
for
Waiver from Double Liner
Requirements Pursuant
to Section 3015(b)(l) and
40 CPR §265.301(c) for CECOS International,
Aber Road Facility Secure Chemical
Management Facility No. 9
Clermont County, Ohio
A. Background: On May 30, 1985, CECOS International, Inc.,
requested a formal review of the design of their hazardous
waste landfill Cell No. 9 at CECOS' Aber Road Facility near
Williamsburg, Ohio, for compliance with Section 3015(b)(l)
of the Solid Waste Disposal Act (SWDA) as. amended regarding
double liners and leachate collection and removal systems.
In EPA correspondence to CECOS on June 25, 1985, EPA stated
that this unit is a "new unit" (because no waste had been
placed in the unit as of November 8, 1984) and, therefore, is
required under Section 3015(b)(l) of the SWDA to comply with
the minimum technological requirements in Section 3004(o)(l)
or the waiver requirements of Section 3004(o){2). Because
Cell No. 9 does not meet the requirements of Section 3004(o)(l)
(see the EPA Region V letter to CECOS dated May 3, 1985),
EPA regards the CECOS letter of May 30, 1985, as a formal
request for a waiver under Section 3004(o)(2) of the SWDA.
B. Legal basis for waiver including reference to statutes,
regulations, and supporting references:
The Hazardous and Solid Waste Amendments to the Solid
Waste Disposal Act were signed into law on November 8, 1984.
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These amendments, under Section 3004(o)(2), provide a provision
for a waiver from Section 3004(o)(1)(A)(i), which requires the
installation of two or more liners and a leachate collection
system above and between such liners for certain landfills seeking
permits. Section 3015(b)(l) of the SWDA made the requirements
of Section 3004(o) applicable to certain interim status landfills,
including "new units" such as CECOS' Cell No. 9. On July 15,
1985, EPA codified the requirements of Sections 3004(o)(1)(A)(i),
3004(o)(2), and 3015(b)(l) of the SWDA in 40 CFR §§264.301(c)
and 265.301(a) and (c). The waiver of Section 3004(o)(2) and
40 CFR §265.301(c) is applicable to owners and operators of
landfills that demonstrate that alternative design and operating
practices, together with location characteristics, will prevent ;
the migration of any hazardous constituents into the ground
water or surface water at least as effectively as the liners and
leachate collection systems specified in Section 3004(o)(1)(A)(i)
and 40 CFR §265.301(a). Section 3004(o)(5)(B) and 40 CFR §264.301(c)
describe an interim statutory design that can be used to satisfy
the liner and leachate collection system requirements of Section
3004(o)(l)(A)(i) and 40 CFR §265.301(a). EPA determined that
the CECOS Cell No. 9 does not meet the design called for in
Section 3004(o)(l) because of the lack of a secondary leachate
collection and removal system in all areas between the liners,
and, therefore, CECOS would have to seek a waiver under
Section 3004(o)(2); i.e. 40 CFR §265.301(c).
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CECOS' Cell No. 9 was primarily constructed in advance of
EPA1a draft Minimum Technology Guidance that specifies the use
of an extensive construction quality assurance (CQA) program to
ensure that the unit is constructed in conformance with the design.
While CECOS' CQA program did not completely conform to that
in EPA1s draft guidance, it was considered at that time to
constitute very high CQA standards. Units constructed since
issuance of the May 24, 1985, draft guidance should undergo a much
more rigorous testing and construction quality assurance plan.
C. Reasons requested waiver appears justified:
CECOS conducted a comparative evaluation of the design of
Cell No. 9 versus a "preferred regulatory design" (from EPA's draft
liner guidance dated December 19, 1984) that differs somewhat
from the interim statutory design of Section 3004(o)(5)(B) of
SWDA and 40 CFR §265.301(a). The interim statutory design has a
lower liner that consists of three feet of low permeability
recompacted natural material while the "preferred regulatory
design" used by CECOS in their evaluation has a composite lower
liner consisting of a synthetic liner as the uppermost component
of the composite and a lower component consisting of two feet of
low permeability recompacted natural material. The CECOS comparative
evaluation is documented in a report entitled "Evaluation of
Leachate Collection and Liner System Performance, Facility No. 9,
CECOS International, Clermont County, Ohio". The report, prepared
by the consulting engineering firm of STS D'Appolonia Ltd. and
dated May 1985, concludes that the performance of the leachate
collection and liner systems of the Cell No. 9 design should
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exceed the capabilities of the preferred regulatory design in
mitigating leakage.
U.S. EPA conducted its own evaluation of the CECOS Cell
No. 9 landfill design and operation and compared its ability to
prevent migration of any hazardous constituents into the ground
water or surface water to that of the interim statutory design
of Section 3004(o)(5)(B) and 40 CFR §265.301(a). The EPA
evaluation compared the CECOS design to the interim statutory
design, rather than the "preferred regulatory design," since
this is a design that Congress specified as acceptable at this
'time. EPA's evaluation is fully documented in the report
entitled "Waiver Evaluation for CECOS International Aber Road
Facility Secure Chemical Management Facility No. 9, Clermont
County, Ohio," October 1985. The result of this study is that
the CECOS Cell No. 9 design and operation can be considered
to be as effective as the interim statutory design of Section
3004(o)(5)(B) and 40 CFR §265.301(a) only under the conditions
stated in the "Waiver from Double Liner Requirements Pursuant
to Section 3015(b)(l) and 40 CFR §265.301(c)" for CECOS Cell No. 9
D. Description of procedures for reaching a final decision:
The draft Waiver will be made available for public comment,
including a public hearing in a location convenient to the public
living near the facility. The public comment period will be for
45 days. Public notice of the draft Waiver and of the public
hearing will be given at least 30 days before the hearing.
Applicable methods outlined in the Code of Federal Regulations,
40 CFR §124.10, for making the notice public will be followed.
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The beginning and end dates of the public comment period
are November ' 1985 [DATE OF PUBLIC NOTICE] to
1985 [DATE 45 DAYS AFTER DATE OF PUBLIC NOTICE] . After the
close of the public comment period, the Regional Administrator
will issue a final Waiver decision.
E. The following person may be contacted for additional information
regarding this request for waiver:
Bruce Sypniewski
U.S. EPA, Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886-6189
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DRAFT
Waiver from Double Liner Requirements
Pursuant to Section 3015(b)(l) and 40 CFR §265.301(c)
Section 3015(b)(l) of the Solid Waste Disposal Act (SWDA),
as amended, requires that new landfill units that qualify to
operate under interim status comply with the minimum technological
requirements of Section 3004(o), including the requirements of
Sections 3004(o)(l) (codified at 40 CFR §265.301(a)) and 3004(o)(2)
(codified at 40 CFR §265.301(c)), with respect to waste received
on or after May 8, 1985. Section 3004(o)(l) requires that the
owner or operator of a landfill install two or more liners and
leachate collection systems above and between such liners for
r
each new unit. These requirements apply to CECOS International,
Aber Road Facility Secure Chemical Management Facility Cell No. 9,
Clermont County, Ohio.
Section 3004(o)(2) of the SWDA and 40 CFR §265.301(c) provide
that the above minimum technological requirements do not apply
where the Regional Administrator finds for such landfill that
alternative design and operating practices, together with location
characteristics, will prevent migration of hazardous constituents
to ground water and surface water at least as effectively as
such liners and leachate collection systems. The Regional
Administrator for Region 5 here finds that Cell Number 9 qualifies
under the standards set out in Section 3004(o)(2) of the SWDA and
40 CFR §265.301(c) for a waiver from the minimum technological
requirements to the extent specified below, upon the specific
condition that CECOS incorporate the alternative design features
and observe the alternative operating practices described below.
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The design of CECOS1 Cell Number 9 deviates from the
requirements of Section 3004(o)(l) of the SWDA and 40 CFR §265.301(a)
by the failure to have a secondary leachate collection system
that covers all areas of the landfill between the top and bottom
liners. This deficiency is compensated for, as documented by
the CECOS AS-BUILT drawing, sheet number 7, dated January 31,
1985, by the inclusion of a primary sidewall contingency leachate
collection system and a thicker compacted lower soil liner than
is provided for in the interim statutory design contained in
Section 3004(o)(5)(B) of the SWDA and 40 CFR §265.301(a).
To continue to qualify for this waiver, the alternative
r
design and operation of the primary leachate collection system
(including the contingency sidewall collection and removal system)
must include:
Design - The leachate collection system must have:
1) A primary leachate collection sump conveyance system
capable of automatic and continuous functioning.
2) A primary leachate collection system on the cell's
sidewall consisting of the following components (see
CECOS' AS-BUILT drawing, January 31, 1985, sheet No. 7)
above the top liner:
0 6-ounce protective geotextile.
0 1-foot sidewall washed sand blanket with a
hydraulic conductivity of 1X10~3 cm/sec or
more.
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* Contingency leachate collection piping consisting
of 6-inch ABS schedule 80 pipe up the sidewall at 8
locations (at approximately 70-foot spacing). The
pipes extend 5 feet into the primary leachate
collection and removal system at the bottom of the
cell. This 5-foot section is perforated and
functions as a contingency leachate collection
system (see CECOS* AS-BUILT drawing, January 31,
1985, sheet No. 9).
*" 16-ounce geotextile drainage media.
0 A minimum of two leachate collection pumps on site.
3) The ability to monitor leachate head levels within the ;
landfill at the sidewalls during the active life and the
post-closure care period.
4) Been designed as specified in EPA guidance (e.g., "Permit
Applicants Guidance Manual for Hazardous Waste Land
Treatment, Storage, and Disposal Facilities," EPA/530-SW-
84-004) so as to withstand the stresses and disturbances
from overlying wastes, waste cover materials, and equipment
operation.
5) Been designed as specified in EPA guidance (e.g., "Permit
Applicants Guidance Manual for Hazardous Waste Land
Treatment, Storage, and Disposal Facilities,"
EPA/530-SW-84-004) so as to function without clogging
through the active life and post-closure care period.
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Construction - Components must be properly installed to assure
that the specified performance of the leachate collection system
is achieved. Future construction of the sidewall primary leachate
collection system must be documented by a construction quality
assurance (CQA) program prior to operation of that portion of the
unit. The CQA program, as specified in EPA draft guidance
documents entitled "Draft Minimum Technology Guidance on
Double Liner Systems for Landfills and Surface Impoundments—
Design, Construction, and Operation", EPA/530-SW-85-014, May 24,
1985, and "Construction Quality Assurance for Hazardous Waste
rLand Disposal Facilities", EPA/530-SW-85-021, October, 1985,
must be used to monitor and document the quality of materials -
(e.g., liner, drainage, and piping) used and the conditions and
manner of their placement. The program must be developed,
administered, and documented by a registered professional engineer.
The documentation must include a report containing a summary of
construction activities, observations, test data sheets, deviations,
and as-built drawings. The documentation for the CQA program
must be kept available for review.
Operation - The following operational procedures must be followed:
1) The primary leachate removal system must be operated
automatically and continuously during the active life
and post-closure care period whenever leachate is present
in the sumps (leachate standpipes) and must remove accumulated
leachate at the earliest practicable time to minimize (produce
very low or no) head of leachate on the top liner. The
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leachate depth above the top liner shall not exceed one
foot except temporarily (no longer than two days) after
major storms during the active life and post-closure
care period of the unit.
2) The contingency sidewall primary leachate removal system
must be operated daily during the active life and
post-closure care period whenever a pumpable quantity of
leachate is present in the pipe and must remove accumulated
leachate at the earliest practicable time to minimize
the leachate head on the liner to a very low level. The
leachate depth shall be maintained at or below a pumpable
level in the contingency leachate collection pipes,
it
except temporarily (no longer than two days) after major
storms. There shall be an adequate number of leachate
collection pumps on site to satisfy this removal requirement.
*
At a minimum there must be two pumps on site.
3) Inspect for proper operation of the primary leachate
• (including contingency sidewall) collection and removal .
system, and for the presence of leachate in the removal
. sumps and the contingency leachate collection pipes,
daily during the operating period and monthly during
closure and the post-closure care period. A record of
inspections and findings (e.g., log of leachate depth
and daily volume of leachate pumped) must be incorporated
into the on site operating record.
4) Repair of damaged primary leachate collection and contingency
sidewall system components as soon as practicable during the
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operating period.
5) During the active life and post-closure care period,
notification of the Regional Administrator, in writing:
a) within 7 days of the presence of a leachate
depth of one foot or more above the top liner
in the primary leachate collection and removal
system.
b) within 7 days of the presence of a pump able
quantity of leachate, except temporarily
(no longer than 2 days) after major storms, in
the contingency sidewall leachate collection and
removal system;
c) within 15 days of known damage to the primary
leachate collection and contingency sidewall
system components; the notification should
outline procedures planned to repair the damage
and a projected schedule.
6) Collected leachate must be removed to a storage, treatment,
or disposal facility that is permitted under 40 CFR
Part 264 or operating under interim status pursuant to
40 CFR Part 265.
Any modifications to plans and specifications following
waiver approval must be approved in writing by the Regional
Administrator prior to construction and operation.
Date:
Regional Administrator
US EPA, Region V
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WAIVER EVALUATION FOR
CECOS INTERNATIONAL ABER ROAD FACILITY
SECURE CHEMICAL MANAGEMENT FACILITY NO. 9
CLEBMONT COUNTY, OHIO
OCTOBER 1985
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ACKNOWLEDGEMENT
The analysis for this report was conducted by Battelle Columbus
Laboratories for the U.S. Environmental Protection Agency
under Contract No. 68-03-3248.
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TABLE OF CONTENTS
Tables iii
Figures iv
1.0 Introduction 1
2.0 General Description of the Landfill Designs 2
2.1 Interim Statutory Design 2
2.2 CECOS Cell No. 9 Design 2
3.0 Evaluation Approach 4
3.1 Performance" Criteria 4
3.2 Failure Scenarios 5
3.3 Hydraulic Modeling Methodology 6
3.4 Model Simulation 8
4.0 Model Results 9
5.0 Conclusions 17
6.0 Findings and Recommendations 17
References 19
ii
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TABLES
1. Hydraulic Conductivities of Materials 8
2. Solitary of Model Input Data 10
3. Flow Distribution Within the Sidewall Region 11
4. Drainage Time Factor, Volume Exiting Sidewall During
Drainage Time, and Breakthrough Time 12
iii
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FIGURES
1. Schematic of Interim Statutory Design 3
2. Schematic of CEDOS Cell No. 9 Design 3
3. Maximum Release Rate Cotparison 13
4. Drainage Time Comparison 14
5. Breakthrough Time Cctparison 15
iv
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WAIVER EVALUATION FOR
CECOS INTEKJATIONAL ABER ROAD FACILITY
SECURE CHEMICAL MANAGEMENT FAdLITY NO. 9
CLERMONT COUNTY, OHIO
OCTOBER 1985
1.0 INTRODUCTION
The Hazardous and Solid Waste Amendments (HSWA) of 1984, amends Section 3004
of RCRA by adding a new paragraph (o) imposing minimum technological requirements
en owners and operators of certain landfills and surface impoundments seeking
permits. HSWA also adds a new Section 3015 to RCRA imposing the minimum technological
requirements set out in Section 3004(o) on certain interim status landfills and
surface impoundments. Specifically, Section 3004(o)(l)(A) requires that affected
units nust install two or more liners, a leachate collection system above (in the
case of a landfill) and between the liners, and ground water monitoring. Section
3004(o)(5)(B) allows the use of a particular type of liner design pending the
issuance of EPA regulations implementing the double liner requirements. Section
3004(o)(2) provides for an exemption from the Section 3004(o)(l)(A) standards for
liners and leachate collection systems if alternative design and operating practices,
together with location characteristics, will prevent the migration of hazardous
constituents as effectively as systems under Section 3004(o)(l)(A).
The Section 3015 requirements are applicable to the CECOS International Aber
Road Facility, Secure Chemical Management Facility No. 9 (hereafter referred to as
CECOS Cell No. 9) in Clermcnt County, Ohio. The main issue with the CECOS Cell
No. 9 design is that a secondary leachate collection system does not cover all
areas of the landfill between the upper and lower liners. CECOS International
has requested a waiver for Cell No. 9 from EPA. The purpose of this report is to
document the hydraulic evaluation of CECOS Cell No. 9. This evaluation compares
the performance of CECOS Cell No. 9 with the interim statutory design contained in
Section 3004(o)(5)(B) per Section 3004(o)(2) which allows alternative designs
under certain circumstances.
In enacting HSWA, Congress has mandated the use of t>ro or more liners and a
leachate collection system above (in the case of a landfill) and between such '
liners. The need for this system is based on the experience that some existing,
single lined landfills and surface impoundments have failed. The Congress intends
that, for general protection of human health and the environment, hazardous waste
facilities provide means to minimize the risk of waste migration out of the unit.
The statutory design for landfills in Section 3004(o)(l) provides for liners and
leachate collection systems covering all areas of the unit that are in contact
with the wastes (See Federal Register, Vol. 50 No. 135, July 15, 1985, p.28,709).
This means that the unit must have a leachate collection system above the top
liner, two or more liners, and a secondary leachate collection and removal system
between the liners on the landfill bottom and side walls.
The evaluation of the CECOS Cell No. 9 landfill design and operation was
performed to compare its relative ability to prevent migration of any hazardous
constituents into the ground water or surface water at least as effectively as the
design contained in Section 3004(o)(5)(B) (hereafter referred to as the interim
statutory design). In doing so, the evaluation focuses on conditions where functioning
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of the lower liner and secondary leachate collection system are required, i.e.,
various failures of the upper liner and primary leachate collection system.
2.0 GENERAL DESCRIPTION OF THE LANDFILL DESIGNS
This evaluation compares the CEOOS Cell No. 9 design to that of the interim
statutory design contained in Section 3004(o)(5)(B), which satisfies the require-
ments of Section 3004(o). The general features of the interim statutory design
and the CECOS Cell No. 9 design are provided in the following sections. Details
for the interim statutory design are based on the design presented in Section
3004(o)(5)(B) of HSWA. Details for CECOS Cell No. 9 design are based on the AS-BUILT
specifications (dated January 31, 1985) provided by CECOS International.
2.1 INTERIM STATUTORY DESIGN
The interim statutory design includes a primary leachate collection and removal
system. The top liner in this design consists of a liner designed, operated, and
constructed to prevent the migration of any constituent into such liner during the
active life and post-closure care period (i.e., a flexible membrane liner (FML)).
A secondary leachate collection system is between the two liners on the bottom and
sidewalls to detect, collect, and remove liquids entering the collection system.
The lower liner consists of a liner designed, operated, and constructed to prevent
tJfe migration of any constituent through such liner during the active life and
post-closure care period. HSWA specifies that the bottom (lower) liner be deemed
to satisfy this requirement if it is constructed of at least a 3-foot thick layer
of recompacted clay or other natural material with a permeability of no more than
1 x ICT^on/sec. Figure 1 is a schematic of the interim statutory design.
2.2 CECOS CELL NO. 9 DESIGN
A schematic representation of. the CECOS Cell No. 9 is shown in Figure 2. The
sidewall liner system consists of, from top to bottom, a protective soil layer, a
geotextile, 1 foot of sand (leachate collection layer), a geotextile, the FML, and
a 7.5-foot compacted soil liner (bottom or lower liner). The sidewall slope is 2:1
(horizontal to vertical). Eight 6-inch pipes, spaced approximately equally around
the cell, are located in the sand layer on the sidewalls and extend 5 ft.
into the primary leachate collection and removal layer at the bottom of the cell.
These pipes are perforated in the bottom layer and function as a contingency leachate
collection and removal system. This contingency leachate collection system is a
very important element of Cell No. 9 because it is designed to provide additional
and backup capability to remove liquids from the sidewall area.
The cell bottom liner system, from top to bottom, consists of a protective
soil layer, a geotextile, 1 foot of sand (primary leachate collection and removal
system), the FML, 4 feet of compacted clay, 1 foot of sand (secondary leachate
collection and removal system), and 2.5 feet of compacted clay (secondary liner).
The secondary leachate collection system is located below the 4 feet of compacted
clay except near the sidewalI/bottom interface and under a center berm. An
additional leachate monitoring system is located below the 2.5 feet of clay layer
as a requirement under Toxic Substance Control Act regulations (not shown in Figure
2). For specific details of the design see AS-BUILT Drawing.1
1 AS-BUILT Drawing, sheet 7 of 10 by Soil and Material Engineers, Cincinnati, Ohio,
dated January 31, 1985.
-------
rifur* 1. Schaaatlc of lotarla Statutory Dailfn
ProtaetlT* toil or C*v«c
Priaary Uachati
Colltctlon ud
Systoi
3 ft miaimm Lov VvnMbUtty
toturoi lUMtial
SoU Foundation
(Hot to Seala)
Flfut* 2. Schematic of CECOS Call No. 9
C«otaxtll
4.0 ft UeoBpactad
Clay Unat
2.3 ft lacoMpaetad
Clay Uaar
•atltr* rouadatloa
Hatatlal
Secondary Laachaea
Collactioa and Baaoval
Systa
(Hot to Seala)
-------
Cell No. 9 is located within a zone of saturation. To help maintain slope
stability, a dewatering system is operated outside the unit until the oell beccnes
sufficiently full to offset the hydrostatic pressure. Because of the presence of
ground water, -the point of comparison for the CECOS Cell No. 9 facility and
the interim statutory design is at the interface between the compacted soil
liner on the sidewalls (or the compacted clay liner en the bottom) and the
native material.
3.0 EVALUATION APPROACH
The evaluation approach was based on hydraulic modeling of the CECOS Cell
No. 9 design and the interim statutory design. Performance criteria and failure
scenarios were developed to characterize the ability of each design to prevent
or minimize migration of hazardous constituents into the ground water and surface
waters under conditions where functioning of the secondary leachate collection and
liner systems would be needed. The performance criteria selected are (1) liner
systems breakthrough times, (2) maximum leakage release rates, and (3) a drainage
time factor related primarily to the leachate collection efficiency* The failure
scenarios include various situations where primary design components are assumed
to fail and the functioning of secondary systems becomes necessary to minimize
releases to the environment. The performance criteria, failure scenarios, and
hydraulic modeling methodology are described in more detail in the next sections.
3.1 PERFORMANCE CRITERIA
The legislative history to the waiver provision indicates that alternative
designs should not only assure equivalent containment, but also provide for
equivalent leachate removal or other means of controlling the volume of hazardous
leachate. (Senate Report No. 284, 98th Congress, 1st Session, pp. 27-28, 1983.)
The performance criteria that were selected for this evaluation represent the
factors affecting migration: (1) when breakthrough will occur, (2) the maximum rate
of leakage, and (3) the drainage time factor. The first t>o factors consider the
ability of the design to contain wastes within the unit while the third criterion
primarily evaluates the efficiency of the leachate collection and removal system.
The three performance criteria were developed to establish a quantifiable
definition of "effectiveness" for each design. The CECOS Cell No. 9 design and
operation has to be at least as effective as the interim statutory design in terms
of these three performance criteria. The three performance criteria taken together
are conservative and will allow comparisons and ensure that the goals of the legis-
lation and regulations, primarily section 3004(o)(5)(B), are met.
Criterion I — Breakthrough Time: This is a measure of the time required for
leachate or hazardous constituents to migrate through the bottom (lower) liner,
following a failure of the primary (top) liner system. In the case of CECOS Cell
No. 9, the facility is located within a zone of saturation and, therefore, any
migration beyond the secondary liner is a release to the ground water. A section
3004(o)(2) waiver would require that this breakthrough time for the alternative
design and operating condition be equivalent to or greater than the breakthrough
time for the interim statutory design.
-------
Criterion II — Maximum Leakage Release Rate: The maxiiium leakage release rate
is the maximum daily rate that liquids are released from the bottom (lover) liner
en the sidewall. This naxinum rate is based on the "worst-case" condition where
the facility has developed a very large hydraulic head above the liner systems.
This worst-case condition could occur if the primary leachate collection system
became severely clogged (or was not operated) and the final cover system failed to
prevent infiltration of water into the unit (i.e., the "bath tub" effect). A
section 3004(o) (2) waiver requires that the alternative design along with operating
practices has a naxinum leakage release rate less than or equal to the interim
statutory design.
Criterion III — Drainage Time Factor: This is a measure of the time required
to empty from the unit the volume of leachate being modeled, utilizing the secondary
leachate collection systems. In this analysis the volume of leachate was assumed
to be one pore volume (i.e., the landfill waste is saturated with leachate).
While this analysis results in a measure of time, it is also a measure of the
effectiveness of the design to collect and remove leachate, which is dependent
on the rejection efficiency of the liner. The rejection efficiency is a measure
of the liner's ability to prevent migration into the liner. In this analysis,
the primary leachate collection and removal system was assumed to be non-functioning.
This criterion is a drainage time factor calculated by dividing the volume of
liquids stored in the unit by the removal rate of the secondary leachate collection
systems for the interim statutory design. For the CECOS design, the volume of
liquid is divided by the removal rate of both the secondary leachate collection
system on the bottom of the unit and the contingency leachate collection and -
removal system on the sidewalls. Therefore, the drainage time factor is an
evaluation of the efficiency of the drainage system to remove a given volume of
liquid. The greater the efficiency of the leachate collection system, the greater
the quantity of liquids that will be removed versus being absorbed into the
liner. As a result, the drainage time factor is the period of time that liquids
are potentially available for release'into the liner. Even if an alternative
design and operating practice has a longer breakthrough time (Criterion I) and a
smaller rate of release than the interim statutory design (Criterion II), a
larger total volume of hazardous constituents could be released to the environment
unless this third criterion is also considered. If the alternative design along
with operating practices has an equal or smaller value for this third criterion
when compared to the interim statutory design and meets the other two performance
criteria, it would provide an equivalent or better level of environmental protection.
3.2 FAILURE SCENARIOS
Failure scenarios were developed to provide conditions where the secondary
systems would be needed. Since the main issue with CECOS Cell No. 9 is the
sidewall, the failure scenarios focused on conditions in which liquids, hydraulic
head driving forces, and leaks through the top FML are present at the sidewalls.
The first failure assumption is that the primary leachate collection system on
the bottom of the cell does not function. The second assumption is that infiltra-
tion into the waste cell results in the unit filling with liquids. These two
assumptions allow liquids (hydraulic head) to build up in the unit. The
third assumption is that the top liner, an FML, does not prevent migration.
Three permeation rates (represented as effective hydraulic conductivities) are
assumed for the FML on the sidewalls: 1 x 10~9 cm/sec, 1 x 10"^ cm/sec, and
-------
1 x 10"* on/sec, which represent increasingly severe failures to the FML on
the sidewall. The hydraulic conductivity of the FML on the bottom of the unit
is assumed to have a very low hydraulic conductivity of 1 x 10~10 cm/sec.
An operational assunpticn in the failure scenarios is that the secondary
leachate collection systems are functional and operated at design capacity
for both the CEOOS and interim statutory designs. Corrective measures are triggered
by sane circumstance, such as the presence of leachate in the secondary leachate
collection systems, detection of leachate in the monitoring wells, or observation
of high head levels within the waste cell. In the event that corrective measures
have not been triggered and the secondary leachate collection systems are not
operated, then the CECC6 Cell No. 9 design would have a slightly smaller release
rate due to the thicker liner on the sidewall (assuming that the interim statutory
design has the same as-built soil liner properties as the CECOS Cell No. 9 soil
liner). An operational assumption for the CECOS Cell No. 9 includes cases with
and without the operation of the contingency leachate collection system above
the top liner on the sidewall of the cell.
Worst-case assumptions were established for the hydraulic head for the
failure scenarios. The head was held at 50 feet above the bottom of the secondary
clay liner. A 50-foot head was selected since this is the approximate depth of
the landfill cell. While the head is held at 50 feet, this head would not be
transmitted through the secondary drainage layer because of the greater hydraulic
conductivity of the drainage layer as compared to that of the waste. Therefore,
in the case of the interim statutory design, the bottom liner is not subjected
to the full head. However, for the CECOS design, if the contingency sidewall
collection system is not operated, the bottom liner en the sidewalls will be
subjected to the hydraulic head from the leachate in the landfill. The water
table was generally assumed to be 10 feet below the bottom of the secondary clay
liner except for one case where it was assumed to be 5 feet above the bottom of
the secondary clay liner.
These two cases (i.e., water table 10 feet below and 5 feet above the
bottom of the secondary clay liner) relate to CECOS Cell No. 9 (i.e., location
characteristics as required under Section 3004(o)(2)). During most of the active
life of the unit, the ground water is held below the unit by a dewatering system
operated outside the unit (i.e., the need to evaluate the design with the water
table 10 feet below the bottom of the secondary clay liner). After the unit
becomes sufficiently full to offset the hydrostatic pressure en the sidewalls,
the operation of the dewatering system will be stopped and the ground water will
be allowed to rise outside of the unit (i.e., the case where the water table
is 5 feet above the bottom of the secondary clay liner). The second case, where
the ground water is assumed to be above the bottom of the unit, was used to
demonstrate that the most critical period is while the ground water is at or
below the unit.
3.3 HYDRAULIC MDDELING METHODOLOGy
The performance of the CECOS Cell No. 9 and the interim statutory designs
can be effectively evaluated using two-dimensional (cross-section), saturated
ground-water flew, model analyses. Conceptually, each design is represented as
a saturated system, somewhat like a full bath tub with the same amount of water
flowing in as flowing out of the drain. The methodology and modeling approach
are discussed below.
-------
Engineered landfill facilities and failure scenarios are evaluated with CFEST
(Gupta et al.f 1962), a saturated ground-water flow model. CFEST is one of many
ground-water models that could be used to conduct this study. It was selected
because it is documented and has been tested. The authors also have experience
with the application of CFEST. The failure scenarios can be conservatively evaluated
using steady-state saturated flew analysis because the maximum amount of liquid
will be forced through the system under saturated conditions. Under unsaturated
conditions, hydraulic conductivities of the lower liner (including the sidewalls)
could be an order-of-magnitude smaller, therefore, allowing less flow through the
system. The landfill designs modeled all contain a lower liner that extends up
the sidewall that is compacted with hydraulic conductivities of 1 x 10"6 cm/sec
or 1 x 10~7 cm/sec. The materials overlying the lower liner are more permeable
with the exception of the FWL. The relatively "tight" lower soil liner, in contrast
to the "native material" that underlies it down to the water table, provides an
over-drained condition; therefore, the soil liner is the rate-limiting material at
the base of the engineered facilities. The failure scenarios assume a constant
saturated level in the waste cell. All failure scenarios presume some degree of
leakage through the top FWL and initial and steady-state saturated conditions.
The modeling analysis uses steady-state assumptions for material properties
and constant head conditions to determine how much flow will go to the operating
collection systems and how much flow will leak through the bottom soil liner. A
constant head condition (i.e., the landfill remains filled with leachate) is used
because there is an unlimited source of liquids to the overall system, so the
resulting release rates and leachate collection rates are essentially the worst-case
values. This methodology is conservative in that it will generally underestimate
the efficiency of each design because unsaturated flow analysis would have large
decreases in hydraulic conductivities of the various layers above the sidewall and
bottom soil liner. More detailed flew analyses could be conducted, such as unsaturated
flew analysis or transient saturated flow analysis, however, those modeling approaches
are nuch more susceptible to unknown errors in the determination of basic parameters
(e.g., unsaturated moisture characteristic curves).
' Breakthrough times are calculated with the Green-Ampt equation. The Green-Ampt
(Green and Anpt, 1911) equation can be used to estimate the time for a wetting
front to advance in a soil column. In this study, the Green-Ampt equation was
used to provide relative time estimates for water to pass through the bottom
soil liner on the sidewall.
This equation approximates the wetting front as a square wave to which
saturated Darcy flow analysis is applied. The equation captures the dynamics of
a wetting front and is a conservative method for estimating breakthrough times
(EPA, 1984). Heads above and below the soil liner on the sidewall (hip and
for this equation are determined from the CFEST model runs.
The Green-Ampt equation can be written as:
es - e^ ~~ h + Z -
t = "L_ - (bp - hg ) In
K
-------
8
where
t = time for the wetting frcnt to advance through the liner;
eg = saturated moisture content of the liner material (above
the wetting frcnt);
e^ = initial moisture content of the liner material (below
the wetting front);
K = hydraulic conductivity of the liner material at some
average moisture content (i.e., between es and e^);
Z = liner thickness
hj = head at the top of the liner; and
hg = head at the base of the liner.
3.4 MODEL SIMULATION
The CEEST finite-element ground-water code was used to simulate CECOS Cell
Nt>. 9 and the interim statutory design under various failure scenarios. A finite
element grid was set up to represent each layer within each design case. For
all cases, the head at the top of the landfill was held at 50 feet above the ;
bottom of the secondary liner which corresponds to a worst-case hydraulic head
condition. By doing so, liquids are always available at the top to replace
liquids that are removed by the leachate collection systems. The water table at
the bottom of the region was held at either 10 feet below the secondary liner or
5 feet above the secondary liner, depending on the failure scenarios. Liquids
flow from a higher to a lower head (i.e., from 50 feet to 5 feet or to -10 feet
relative to the bottom of the secondary liner). The hydraulic conductivity (K)
for all the materials simulated are shown in Table 1.
Table 1. Hydraulic Conductivities of the Materials
Material K (cm/sec)
Waste 1 x 10~5
Sand (Leachate Collection Layers) 1 x 10~2
Compacted Soil* 1 x lO"6 and 1 x 10~7
FML (Sidewall)** 1 x KT4, 1 x KT7, and 1 x 10~9
FML (Bottom)** 1 x 10~10
Native Material 1 x 10~3
*CECOS Cell No. 9 is evaluated with both K values
**EML leaks are simulated using equivalent K values
-------
Two values of hydraulic conductivity for CECOS Cell No. 9 conpacted soil
liner were used because of uncertainty in the as-built field hydraulic conductivity.
However, the soil utilized on the sidewalls is a silty till material that has
laboratory K values less than 1 x 10~7 cm/sec. In the construction of Cell No. 9,
CECOS used what was considered at the time to be good quality control to assure
that the unit was constructed as designed (i.e., hydraulic conductivity of the
soil liner of less than 1 x 10""? cm/sec). A complete description of the model
input data in each case is shown in Table 2.
Five failure scenarios were evaluated for the interim statutory design and
two versions of CECOS cell No. 9 design, version A with a soil liner K of 1 x
cm/sec and version B with a soil liner K of 1 x 10~7 cm/sec. A description of
each case is as follows:
Case 1 - Severe failure of the sidewall FML (K = 1 x HT4 cm/sec).
Water table below the cell.
Case 2 - Moderate failure of the sidewall FML (K = 1 x 10~7 cm/sec). Water
table below the cell.
Case 3 - Severe failure of the sidewall FML (K = 1 x 10~4 cm/sec).
Water table above the cell bottom.
r
Case 4 - Severe failure of the sidewall FML (K = 1 x 10"4 cm/sec).
Water table be lew the cell. Contingency leachate collection '
system operating in CECOS Cell No. 9.
Case 5 - Minor failure of the sidewall FML (K = 1 x 10~^ cm/sec). Water
table below the cell.
In all cases the primary leachate collection system on the bottom unit
is not operating, the secondary leachate collection system is operating, and the
hydraulic head in the waste is held at 50 feet above the bottom of the cell.
The letter A designates CECOS Cell No. 9 with a sidewall soil liner K of 1 x 10"6
on/sec, the letter B designates CECOS Cell No. 9 with a sidewall soil liner K of
1 x 10~7 cm/sec, and the letter S designated the interim statutory design with a
sidewall soil liner K of 1 x 10"' cm/sec.
Cases 1, 2, and 5 demonstrate the effects of different leakage rates through
the top liner (FML). Case 1 versus Case 3 demonstrates the effect of different
assumptions of the location of the water table under the worst-case FML failure
condition. Case 1 versus Case 4 demonstrates the effect of operating the contingency
leachate collection system in CECOS Cell No. 9 under the worst case FML failure
condition. Cases 1 and 4 represent the most severe cases.
4.0 MODEL RESULTS
The model results are presented in Tables 3 and 4. Graphical comparisons of
the three performance criteria for the failure scenarios are also presented in
Figures 3, 4, and 5. Table 3 shows the distribution of flow within the sidewall
region. Flow rates are expressed in units of ft^/day/ft (rate of flow in cubic
-------
10
Table 2. Sunraiy of Model Input Data
Design
Case
1A
IB
IS
2A
2B
25
t
3A
3B
3S
4A
43
4S
5A
5B
5S
Sidewall Compacted Water Table*
FML K Soil K Elevation
(cm/sec) (cm/sec) (ft)
1 x 10"4 1 x HT6 -10.0
1 x 10~7
n n ii
1 x 10'7 1 x 10"6
1 x 10~7
n n I*
1 x KT4 1 x 10"6 5.0
1 x 10~7
n n . "
•
1 x KT4 1 x 10~6 -10.0
1 x 10~7 " .
n n ii
1 x 10~9 1 x ID"6
1 x 10~7
M n ii
Contingency Leachate
Collection System
Not Operated
n n
N/A
Not Operated
ii n
N/A
Not Operated
• n ii
N/A
Operated
n
N/A
Not Operated
n n
N/A
Cases 1A-5A and 1B-5B are CEOOS Cell No. 9 sinulations
Cases 1S-5S are Interim Statutory Design simulations
* Relative to the bottom of the secondary liner.
-------
11
Table 3. Flow Distribution Within the Sidewall Region
(all values are in units of ft3/d/ft)*
Design Maximum Release Rate Flow Rate Through Flow Rate Through
Case Through Sidewall Secondary Leachate Contingency Leachate
Collection System Collection System
1A 1.91 0.54 N/A
IB 0.23 0.07 N/A
IS 0.07 4.98 N/A
2A 1.79 0.41 N/A
2B 0.23 0.07 N/A
2S 0.07 3.67 N/A
3A 1.33 0.53 N/A
3B 0.16 0.07 N/A
3S . 0.06 2.76 N/A
4A ' 0.43 -0- 9.73
4B 0.05 -0- 10.03
4S 0.07 4.98 N/A
5A 0.16 0.02 N/A
5B 0.10 0.01 N/A
5S 0.004 0.178 N/A
Rate of flow in cubic feet per day from a one-foot slice of the landfill
sidewall from top to bottom.
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12
Table 4.
Design
Case
Drainage Time Factor (Volume of Liquids in the Landfill
Divided by Leachate Collection Rate), Volume Exiting Sidewall
During Drainage Time, and Breakthrough Tine
Drainage Time
(days)
Volume Exiting
Sidewall During
Drainage Time
(ft3/ft)
Breakthrough
Time
(days)
1A
IB
IS
2A
2B
2S
3A
3B
3S
4A
4B
4S
5A
5B
5S
876
7,045
390
974
7,158
525
1,151
9,231
700
211
213
390
12,596
19,391
10,808
1,672
1,637
27
1,744
1,640
37
1,535
1,509
42
91
10
27
1,950
1,894
43
19
157
253
20
170
312
25
204
372
98
947
253
81
234
899
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Figure 3. Maximum Release Rates
O
-i->
o
a:
o
(0
o
a:
x
o
2
1,9 -
1,8 -
1.7 -
1.6 -
1.5 -
1,4 -
1,3 -
1.2 -
1,1 -
1 -
0.9 -
O.8 -
0.7 -
0.6 -
O.5 -
O.4 -
0.3 -
O.2 -
O.1
O
u>
Case A
allure Scenarios
Case B
Case S
-------
Figure 4. Drainage Time (days)
o
o
20
19 -
18 -
17 -
16 -
15 -
14 -
13 -
12 -
1 1 -
1O -
9 -
8 -
7 -
6 -
5 -
4 -
3 -
2 -
1 -
O
Case A
allure Scenarios
Case B
Case S
-------
Figure 5. Breakthrough Times (days)
o
J)
m
0.9 -
O.8 -
0.7 -
O.6 -
M O.5 -
O.4 -
O.3 -
0.2 -
O.1 -
O
i
2
\7~7\ Case A
i
3
allure Scenarios
Cage B
C/l
Case S
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16
feet per day fron a one-foot slice of the landfill sidewall from top to bottom)
because the CFEST model analysis is based on a cross-section of each design.
Flows at or near the sidewall are either released through the sidewall (i.e.,
maximum release rate through sidewall) or collected by the secondary or contingency
leachate collection systems. These rates are maximum values because of the high
constant head conditions assumed in this analysis. Because CBCOS' Cell No. 9
only has a secondary leachate collection system on the bottom of the oell (i.e.,
no sidewall secondary leachate collection system), very little flow from the
sidewall reaches the secondary leachate collection system.
The drainage times presented in Table 4 and Figure 4 are calculated by
dividing the total amount of liquids within each design by the flow rate through
the secondary and/or contingency leachate collection systems. The drainage time
factor relates directly to the length of time a release could occur given that
the secondary or contingency leachate collection systems were being operated to
remove all liquids from the landfill. Remember, however, that this analysis has
a constant head, while under normal field conditions, the head would be declining
eventually to zero if all liquid input into the cell were eliminated. Table 4
also contains the volume exiting the sidewall during the drainage time. These
values are determined by multiplying the maximum release rates by the drainage
time. These volumes are another measure of the effectiveness of each design.
The physical significance of these volumes is that while liquids are being removed
by the secondary or contingency leachate collection systems, releases through
the sidewall will occur; thus, more effective collection systems will reduce the
volume of liquids released to the environment.
Breakthrough times are presented in Table 4 and Figure 5. Breakthrough
times represent another measure of performance of each design but because of the
drastic head conditions and conservative breakthrough equation, these values have
little resemblance to breakthrough times that would occur under less severe conditions
(i.e., normal field conditions). The relative relationship between breakthrough
times for various designs and operating conditions should, however, be similar
with the smaller heads that are more likely to occur in an actual landfill.
The results generally indicate that the interim statutory design is not
significantly affected by various failure scenarios. Cases 1S-4S all have almost
identical maximum release rates through the sidewall. This result is due to the
secondary leachate collection system's ability to reduce the head on the sidewall
soil liner to a very small value. Case 5S has a nuch smaller release rate because
the moderate failure of the sidewall FML still significantly reduces the flow of
liquids into the secondary collection system. The drainage time factor, and
breakthrough times are also similar for each statutory case (except case 5S).
A comparison of A and B cases shows that different assumed hydraulic
conductivity values for the sidewall in Cell No. 9 have a major effect on
performance of this design. Maximum release rates are about a factor of 8 higher
in Cases 1A-4A than Cases 1B-4B while drainage times and breakthrough times are
about a factor of 8 lower for Cases 1A-4A than Cases 1B-4B. Cases 5A and 5B are
not as different because flow rates are restricted by the top FML.
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17
Cases 1A, IB, and IS versus 3A, 3B, and 3S indicate the effects of water
table location. Because the location of the water table affects the net head
gradient on the sidewall, a lower water table gives more conservative results
(i.e., a worst case). CECOS Cell No. 9, after carp let ion, will have a water table
located above the cell bottom along the sidewall, so Cases 3A, 3B, and 38 are more
representative of this situation. However, a lower water table assumption, such
as during the construction of Cell No. 9, gives more conservative results. The
lower water table assunption was preferred in the modeling analysis because a
small amount of liquid could enter the secondary leachate collection system from
outside of the cell (i.e., ground water) in several cases. This ground water
could not be distinguished from liquids entering the collection system from within
the cell (i.e., leachates) by this modeling analysis.
A comparison of Cases 1B-3B and 5B with Cases 1S-3S and 5S illustrate that
CECOS Cell No. 9 is not equivalent to the interim statutory design when the
contingency leachate collection system is not operated, teximum release rates
are about a factor of 3 higher in Cases 1B-3B as compared to 1S-3S and a factor
of 25 higher in Cases 5B than interim statutory case 5S. Drainage times and
volumes exiting the sidewall during drainage times are drastically higher in the
CECOS Cases 1-3 and 5 versus the interim statutory design cases 1-3 and 5.
Cases 4A and 4B illustrate the effect of operating the contingency leachate
collection system. Case 4B demonstrates that the CECOS Cell No. 9 is more
effective, by all three criteria, than the interim statutory design when the
contingency leachate collection system is operated and the sidewall soil liner
hydraulic conductivity is at least 1 x 10~' cm/sec. The maximum release rate
through the sidewall is 0.05 ft3/day/ft for Case 4B versus 0.07 ft3/day/ft for
Case 4S. The drainage time and volume exiting the sidewall during the drainage
time are smaller for Case 4B than Case 4S. The breakthrough time is larger for
Case 4B than Case 4S.
Since the CECOS Cell No. 9 design and operation (Case 4B) is better than the
interim statutory design under catastrophic failure conditions for all three
performance criteria (i.e., breakthrough time, maxirtum release rate through the
sidewall, and drainage time), the CECOS Cell No. 9 design and operation will be
more effective than the interim statutory design for the other failure conditions.
For example, under a moderate failure mode of the FML, the CECOS design would
exceed the performance of Case 5S if the contingency leachate collection system
is operated.
5.0 CONCLUSION
The results of Section 4 demonstrate that the CECOS Cell No. 9 design and
operation can be considered to be as effective as the interim statutory design
ONLY WITH THE OPERATION OF THE CONTINGENCY LEACHATE COLLECTION SYSTEM.
6.0 FINDINGS AND RECOMMENDATIONS
The modeling evaluation was based on properties of various materials as
reported by CECOS. CECOS implemented a construction quality assurance program
to assure that the compacted soil liner was constructed as designed. EPA
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18
used the 1 x 10~7 cm/sec hydraulic conductivity value for the sidewall comparison
based on the demonstration by CECOS that they conplied with regulations and
guidance available at the time of construction.
If CEOOS is granted a waiver for Cell No. 9, it is strongly recommended, based
on this analysis, that leachate heads within the cell be keep to an absolute
miniirum at all times by operating the primary leachate collection system and the
contingency leachate collection system to keep leachate away from the sidewalls.
Future placement of the one-foot sand layer above the top liner on the sidewalls
should be inspected during placement in accordance with current EPA guidance.
During the post-closure care period the head levels should be monitored very
frequently on the sidewalls. The permit should have provisions for immediate
response to any head build-up in the cell.
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19
REFERENCES
Green, W.H. and G.A. Anpt. Studies in Soil Physics I: The Flow of Air
and Water Through Soils, Journal of Agricultural Science 4, 1911.
Gupta, S.K., C.T. Kincaid, P.R. Meyer, C.A. Ne>toill, and C.R. Cole. A
Multi-Dimensional Finite-Element Code for the Analysis of Coupled Fluid
Energy and Solute Transport (CFEST), PNL-426, Pacific Northwest
Laboratories, Richland, WA, 1982.
U.S.EPA, Procedures for Modeling Flow Through Clay Liners to Determine
Required Liner Thickness, EPA/530-SW-84-002, OSW, Washington, D.C.
-------
Appendix 1
DEFENDANT'S/RESPONDENT'S FACILITIES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
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Appendix 2
PENALTY SCHEDULE
RCRA Violation
I. Groundwater Monitoring
40 C.F.R. §§ 264.91 and
265.91
II. Unsaturated Zone Monitoring
40 C.F.R. §§ 264.97 through
264.100 and 265.92 through
265.94
III. Waste Analysis Plans:
Content and Implementation
40 C.F.R. §§ 264.13(a) and (b),
and 265.13(a) and (b)
IV. Bulk Liauids in Landfill
40 C.F.R. §§ 264.314(a)
and 265.314(a)
V. Containerized Liquids
Disposal in Landfill
40 C.F.R. §§ 264.314(b)
and 265.314(b)
VI. Waste Tracking within
TSD facility
40 C.F.R. § 264.222
VII. Maintenance of Minimum
Freeboard level for
Surface Impoundment
40 C.F.P. § 264.226(c)
VIII. Ignitable/Reactive -
Disposal in Landfill
40 C.F.R. §§ 264.312
and 265.312
IX. Land Disposal (direct
application to unlined
surface soils) of non-
biodegradeable wastes
40 C.F.R. §§ 264.272(a)
and 265.272U)
Penalty
$22,500.00
per missed sampling event
$22,500.00
per missed sampling event
$25,000.00
$22,500
per day of occurrence
$22,500.00
per day of occurrence
$25,500.00
$6,500.00
per freeboard violation
$9,500.00
per cell, per day
$22,500.00
per day
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-2-
RCRA Violation
X. Trial test of waste
compatibility prior
to discharge into
surface impoundment
40 C.F.R. § 265.225
XI. Trial test of waste
solidification process
prior to landfill
40 C.F.R. §265.402
XII. Failure to control wind
dispersal of land treatment
waste disposal zones
40 C.F.R. S§ 264.272(e)
and 265.273(f)
XIII. Incompatible wastes placed
into surface impoundment
40 C.F.R. §§ 264.230
and 265.230
XIV. Unauthorized .expansion of
TSD facility during
Interim status
40 C.F.R. §270.72
XV. Closure of Units w/o
demonstration of
compliance with facility
closure plan
40 C.F.R. §§ 264.113
and 265.113
XVI. Inadequate closure/
post-closure inspec-
tion/maintenance plans
40 C.F.R. §§ 264.112
and 265.112
XVII. Absence of post-closure
groundwater monitoring
program
40 C.F.R. §§ 264.117(a)(1)
and §265.117(a)(2)
Penalty
$22,500.00
per day of event
$22,500,00
per day
$22,500.00
per unit
$22,500.00
per day
$20,000.00
per day or as
needed to recapture
all profits gained
$25,000.00
per unit
$15,000.00 per unit
$22,500.00 per day
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-3-
RCRA Violation
XVIII. Failure to update closure/
post closure plan cost
estimates
40 C.F.R. §§ 264.144(c)
and 265.114(c)
XIX. No schedule included
for closure activities
40 C.F.R. §§ 264.112(a)
and 265.112(a)
XX. Inadequate Part A
Applications, absence
of identified operating
units
40 C.F.R. §270.13
XXI. Inadequate Part B
Application
40 C.F.R. §270.14
XXII. Absence of complete
facility Inspection
Plan, units omitted
40 C.F.R. §§ 264.15(b)
and 265.15(b)
XXIII. Failure to record
on facility inspections
reports repairs or
remedial measures taken
• 40 C.F.R. §§ 264.15(b)
and 265.15(d)
XXIV. Failure to inspect
freeboard levels
of surface impoundments
40 C.F.R. §§ 264.226(b),
(c) and 265.226(a)
XXV. Operating Record
Omissions failure
complete grid maps
of landfilled lifts
of waste
40 C.F.R. §§ 264.309
and 265.309
Penalty
$3,000.00 per day
$6,500.00 per plan
milestone omitted
$9,500.00 per unit
not properly identified
$9,500.00 per unit
not properly identified
$2,250.00
per unit emitted,
per day
$2,250.00
per omission
$2,250.00
per occurrence
$2,250.00
per omission
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-4-
RCRA Violation
XXVI. Failure to record on-site
generated hazardous wastes
i.e. truck washing facility
40 C.F.R. § 262.4Kb)
XXVII. No training provided
to employee assigned to
do waste analyses
40 C.F.R. §§ 264.16
and 265.16
XXVIII. No analyses performed
on materials added to
on-site waste piles
40 C.F.R. § 265.252
XXIX. Records not provided
to Agency
within 48 hours of request.
40 C.F.P. §§ 264.74
and 265.74
XXX. Fence not installed
around all operating
areas of TSD facility
40 C.F.R. §§ 264.14
and 265.14
XXXI. Emergency Contingency
Plan Inadequacies
40 C.F.R. §§ 264.52
and 265.52
XXXII. Failure to Meet
Financial Responsibility
Requirements
40 C.F.R. Part 264, Subpt. H
and Part 265, Subpt. H
Penalty
$9,500.00
per unrecorded event
$3,000.00
per untrained
employee
$22,500.00
per event
$6,500.00 per day
of delay
$1,000.00
$2,225.00
per component
deficiency
$25,000.00
per day of delay
TSCA Violation
Penalty
XXXIII. Improper Disposal of PCBs
40 C.F.R. §§ 761.60 (a)-(d)
—1,100 or more gallons
or 750 or more cubic
feet of PCS contaminated
material.
$25,000.00 per day,
per violation
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-5-
TSCA Violation
—220-1,000 gallons or
150-750 cubic feet of
PCB contaminated
material
—less than 220 gallons or
150 cubic feet of PCB
contaminated material
XXXIV. Failure to Dispose of PCBs
by Jan. 1, 1984.
40 C.F.R. § 761.65(a)
—1,100 or more gallons
or 750 or more cubic
feet of PCB contaminated
material.
--220-1,100 gallons or
150-750 cubic feet of
PCB contaminated
material.
—less than 220 gallons or
150 cubic feet of PCB
contaminated material.
Failure to Dispose of PCBs
within one year of removal
from service.
40 C.F.R. § 761.65(a)
—1,100 or more gallons
or 750 or more cubic
feet of PCB contaminated
material.
—220-1,100 gallons or
150-750 cubic feet of
PCB contaminated
material.
—less than 220 gallons or
150 cubic feet of PCB
contaminated material.
Improper Processing of PCBs
40 C.F.R. § 761.20(a)
XXXV.
Penalty
$17,000.00 per day,
per violation
$5,000.00 per day,
per violation
$25,000.00 per day,
per violation
$17,000.00 per day,
per violation
$5,000.00 per day,
per violation
XXXVI,
$25,000.00 per day,
per violation
$17,000.00 per day,
per violation
$5,000.00 per day,
per violation
$20,000.00 per day,
per violation
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-6-
TSCA Violation
XXXVII. Improper Distribution of
PCBs (sale) in commerce.
40 C.F.R. S 761.20(a)
XXXVIII. Improper treatment and
testing of waste oils.
40 C.F.R. SS 761.60(g)(2)(i)
and (ii)
XXXIX. Improper Use of PCBs
40 C.F.R. § 761.20(a)
XXXX. Improper use of PCBs
(road oiling; dust
control; sealants)
40 C.F.R. § 761.20(d)
XXXXI. Improper use of PCBs
- Transformers
40 C.F.R. § 761.30U)
- Capacitors
40 C.F.R. § 761.30(1)
- Heat transfer systems
40 C.F.R. § 761.30(d)
XXXXII. PCB Storage Violations
- 40 C.F.R. § 761.65(b)
(facility criteria)
- 40 C.F.R. § 761.65(c)(7)(ii)
(spill plan development)
- 40 C.F.R. § 761.65(c)(8)
(management of liquids
in storage)
XXXXIII. Recordkeeping Violations
(storage for disposal)
40 C.F.R. § 761.180(a)
XXXIV. Recordkeeping violations
(disposal facilities)
Incinerators
40 C.F.R. § 761.180(c)
Chemical waste landfills
40 C.F.R. § 761.180(d)
Penalty
$20,000.00 per day,
per violation
$25,000.00 per day,
per violation
$25,000.00 per day,
per violation
$25,000.00 per day,
per .violation
$20,000.00 per day,
per violation
$15,000.00 per day,
per violation
$10,000.00 per day,
per violation
$15,000.00 per day,
per violation
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-7-
xxxxv.
TSCA Violation
Marking Violations
40 C.F.R. § 761.40(a)
Penalty
$15,000.00 per day,
per violation
XXXXVI. Failure to Date PCB Items
placed into storage
40 C.F.R. § 761.180(a)
$5,000.00 per day,
per violation
XXXXVII. Viol3tion of any condition
of a PCB chemical waste
landfill (40 C.F.R. S 761.75)
or incinerator (40 C.F.R.
S 761.70) application approval
$25,000.00 per day,
per violation
XXXXVIII. Failure to decontaminste
PCB container, tanker
trucks, etc.
40 C.F.R. § 761.79
$25,000.00 per day,
per violation
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Appendix 3
CORPORATE MANAGEMENT SYSTEMS REPORT PROTOCOL
The Corporate Management Systems Report shall:
(1) Identify and describe the existing facility waste manage-
ment operations and the Environmental Management Department's
systems, policies and prevailing practices as they affect
Defendant's/Respondent's corporate compliance with RCRA and
TSCA.
(2) Evaluate such operations, systems, practices, and policies
and identify and describe fully the perceived weaknesses in
such operations, systems, practices, and policies by comparing
them, to the extent practicable, to the existing practices,
programs and policies of other RCRA and TSCA waste management
corporations operating within the continental United States and
to generally accepted corporate management practices.
(3) Based on the evaluation required in paragraphs (1) and (2)
above, the consultant shall identify and describe fully with
supporting rationales the perceived areas, if any, where Defen-
dant's/Respondent's inter- and intra-facility waste management
operations and corporate to operating level environmental
management systems, practices and policies may be improved.
The Corporate Management Systems Report shall list specific
options for improvements in the following areas:
(a) Corporate data management practices pertaining
to the following items:
i. compliance budgets;
ii. staffing;
iii. training;
iv. auditing;
v. incident reporting, including but not limited to
manifest exception reports and any unpermitted
disposal, release, or discharge;
vi. quality assurance test reporting;
vii. quality control reporting;
viii. generator waste profile reports, facility pre-
acceptance reports, and acceptance analysis as
these items compare to each facility's stated
basis for accepting or rejecting individual
waste loads; and
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-2-
ix. facility mass balance records reflecting the
internal disposition of all wastes received
for final disposal.
(b) Corporate data evaluation practices/ capabilities
and policies pertaining to reports to and from compliance
officers, internal and external environmental audits, regulatory
agency notices of violation and all other compliance data
documents which when evaluated may lead to changes in TSD
operating procedures or directives by corporate management to
modify any individual or multi-facility TSD facility operating
procedures.
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Attachment G
MODEL EMERGENCY ENVIRONMENTAL MANAGEMENT REORGANIZATION PROVISION
FOR CONSENT DECREES OR AGREEMENTS
E.I. The objective of this provision is to provide a manage-
ment structure at the corporate headquarters level that will
ensure that comprehensive environmental policies and procedures
are developed by top management and fully implemented company-wide
at all facilities.
2. Defendant/Respondent shall propose to EPA's [name of
EPA office overseeing compliance with Decree/Agreement] by
written submittal to [name of Agency contact] within thirty
(30)'days of the effective date of this Decree/Agreement, a
plan for reorganization of the corporate management structure
with respect to environmental affairs. This reorganization
proposal shall be agreed upon by EPA and Defendant/Respondent
in writing/ prior to implementation of the reorganization.
a. The management plan shall provide for the creation of
a new position of Director, Environmental Affairs [or other
appropriate title] to exercise the responsibilities set forth
herein. The Director, Environmental Affairs shall report
directly to [a corporate Vice President or other appropriate
top management official not directly responsible for manufacturing/
production activities]. The position shall at all times be
filled by an experienced executive with a background in [approp-
riate industrial field] and in environmental management and
compliance.
b. It shall be the responsibility of the Director,
Environmental Affairs to develop appropriate corporate environ-
mental policies and procedures and to oversee their implementation
at all company facilities to ensure compliance with applicable
Federal, State and local environmental statutes and regulations.
In the development of such policies and procedures, the recom-
mendations of the environmental audit conducted at the [facility]
by an outside consultant as described herein shall be given
full consideration.
c. Defendant/Respondent shall also establish such addi-
tional technical and support positions reporting directly to
the Director, Environmental Affairs as are necessary to meet
the objective of this provision. Neither the Director.nor
staff shall be assignee additional responsibilities not related
to environmental compliance. Defendant/Respondent shall provide
adequate budgetary support to the environmental staff.
3. Within ninety (90) days of EPA's approval of the environ-
mental management plan, the company shall appoint the Director,
Environmental Affairs and appropriately qualified staff.
4. Within two hundred seventy (270) days of EPA's approval of
the environmental management plan, the Director, Environmental
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-2-
Affairs shall complete development and begin the implementation
of appropriate corporate environmental policies and procedures
to meet the objective of this provision.
5. Within eighteen (18) months of the effective date of
this Decree/Agreement, Defendant/Respondent shall fully implement
the corporate environmental policies and procedures at all
company facilities. This shall include any necessary organiza-
tional or personnel changes at the individual facility level.
6. Recognizing the corporate responsibility to maintain
compliance with all applicable environmental statutes and
regulations, Defendant/Respondent agrees to maintain a permanent
corporate environmental management staff. The organization,
makeup and functions of this staff may be modified from time
to time as dictated by changes in corporate facilities or
operations or the requirements of environmental statutes and
regulations.
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Attachment C
MODEL ENVIRONMENTAL COMPLIANCE AUDIT PROVISION FOR CONSENT
DECREES OR AGREEMENTS
A.I. Defendant/Respondent shall, within sixty days after
the effective date of this Decree/Agreement [and where a contin-
uing audit requirement is appropriate, add: and not less often
than annually thereafter for a five-year period], audit the
status of [applicable statutory] compliance at the [site of
facility(ies)] and take prompt remedial action against all
violations found.
A.2. Defendant/Respondent shall, within sixty days after
completion of the compliance audit required by paragraph 1,
submit to EPA's [name of EPA office overseeing compliance with
Decree/Agreement] a certification that, to the best of its
knowledge, Defendant/Respondent is in compliance with all
[applicable statutory and regulatory] requirements or has
developed a schedule for achieving compliance subject to EPA
approval.
A.3. Nothing in this Decree/Agreement shall preclude EPA
from instituting enforcement actions against Defendant/Respon-
dent for any violations of [applicable statutory and regulatory]
requirements which are not cited within the Complaint giving
rise to this Decree/Agreement.
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Attachment D
MODEL ENVIRONMENTAL MANAGEMENT AUDIT PROVISION FOR CONSENT
DECREES OR AGREEMENTS
B.I. Defendant/Respondent shall propose to EPA's [name of
EPA office overseeing compliance with Decree/Agreement] by
written submittal to [name of Agency contact] within thirty (30)
days of the effective date of this Decree/Agreement, the scope
of work for the services of a [third party or internal] auditor
who shall be expert in environmental auditing, environmental
management systems and [applicable statutory program(s)] management
operations. Such auditor shall be independent of and in no way
responsible to production management. This scope of work and
auditor shall be agreed upon by EPA and Defendant/Respondent in
writing, prior to the auditor's commencing the performance of
the professional services more fully set forth below. The
auditor will be retained and the scope of work will be designed
to review and make recommendations regarding the improvement of
Defendant's/Respondent's environmental compliance and management
policies, practices, and systems at the [site of facility(ies)]
and in the Defendant's/Respondent's corporate offices having
responsibility for supervision of compliance activities at such
facility(ies).
2. Within one hundred twenty (120) days after agreement-
upon the scope of work and the auditor, the auditor shall
submit a written Environmental Audit Report to the Defendant/
Respondent. This Report shall:
a. Identify and describe the existing facility
environmental management operations and the corporate offices
responsible for overall company-wide environmental compliance
and management systems, policies and prevailing practices as
they affect [applicable statutory and regulatory] compliance
at the [site of facility?ies)].
b. Evaluate such operations and systems, practices
and policies and identify and describe fully the perceived
weaknesses in such operations and systems, practices and policies
by comparing them., to the extent practicable, to:
i. their ability to promote compliance with
[applicable statutory and regulatory] requirements;
ii. the existing practices, programs and policies
of other [applicable industry] corporations operating within
the continental United States, including consideration of the
available literature and consultant's experience pertinent to
regulatory compliance programs, practices and policies currently
operative in the [applicable industry] in the continental
United States;
iii. the history of [facility] operations in terms
of the facility1s(ies1) compliance programs, 'compliance record
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-2-
and environmental management practices over the previous five
years [or longer if necessary or relevant].
The auditor shall apply its expertise and judgment
to the foregoing information, using such factors as the auditor
believes to be relevant and appropriate, which factors shall
be stated in the report.
c. Based on the evaluation required in paragraphs
2.a. and b. above, the auditor shall identify and describe
fully with supporting rationales the perceived areas, if any,
where Defendant's/Respondent's environmental management systems,
practices and policies may be improved as they affect the
[facility(ies)] regarding [applicable statutory] compliance
obligations, listing specific options for any improvements at
the [facility(ies)] in the following areas:
i. environmental compliance program management
operation, staffing, education and experience requirements.
ii. compliance management budget, lines of authority
to Defendant's/Respondent's corporate offices responsible for
overall company-wide environmental compliance and management
systems, policies, and practices, and relationship to the
operating facility(ies) manager.
iii. personnel training for individual employee
compliance obligations and [applicable medium-specific
activities].
iv. Operations and Maintenance (O&M) procedures for
[applicable medium-specific pollution control] equipment.
v. evaluation of [applicable industry] operations
and pollution control equipment in terms of adequacy of
design and compatibility with [applicable medium-specific
substances] being passed through such equipment.
vi. quality and thoroughness of implementation of
all waste and wastewater" [or other pollutant source] analysis
plans for both incoming and outgoing waste [or other pollutant]
streams, whether directly discharged, emitted, released to the
ambient environment, or conveyed off-site in bulk shipments.
vii. preparation of Quality Assurance and
Quality Control programs for sampling and analysis and
for environmental testing procedures, including [facility(ies)]
laboratories and contract laboratories for [facility(ies)].
viii. preparation of records needed to provide the
[facility(ies)] management with an adequate data base to accurately
determine compliance with all applicable statutory and regulatory
requirements, with particular attention to waste [or other
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-3-
pollutant] generation (including quantity and chemical composi-
tion), movements, treatment, and ultimate disposition by location
of waste [or other pollutant] source, handling points and final
disposition. This evaluation shall encompass proposals for
state-of-the-art data management systems providing timely
access to all of the above records to be maintained by an
onsite computer.
ix. preparation of self-monitoring reports required
to be filed with the State and EPA.
x. preparation and review of Incident Reports
evaluating causes of [applicable medium-specific pollution
control] equipment malfunctions, improper [applicable medium-
specific substances] handling, or breakdowns, with specific
recommendations for corrective steps and preventive O&M, along
with procedures for reporting these recommendations to corporate
headquarters.
3. Within 30 days after Defendant's/Respondent's receipt
of the Audit Report, Defendant/Respondent shall submit to EPA
.that portion of the Audit Report which contains the recommenda-
tions of the auditor, together with a report of Defendant's/
Respondent's good faith evaluation of each option it has selected
for adoption and the reasons for rejecting other options. The
report by Defendant/Respondent shall set forth the specific
actions the company shall take and a schedule, not to exceed
sixty (60) days [or longer if necessary] from the date that EPA
receives and evaluates the schedule, for implementation of the
recommendations adopted by Defendant/Respondent.
4. Any failure by Defendant/Respondent to meet the schedule
for implementing the audit program set forth in this Decree/
Agreement shall result in stipulated penalties of [$ ] (in
addition to whatever sanctions the court/ALJ may impose for
contempt), payable by Defendant/Respondent to the U.S. Treasury,
for each day such schedule is not met.
B. Nothing in this Decree/Agreement shall preclude EPA from
instituting enforcement actions against Defendant/Respondent
for any violations of [applicable statutory and regulatory]
requirements which are not cited within the Complaint giving
rise to this Decree/Agreement.
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Attachment E
MODEL ENVIRONMENTAL COMPLIANCE AND MANAGEMENT AUDIT PROVISION
FOR CONSENT DECREES AND AGREEMENTS
C.I. Defendant/Respondent shall conduct environmental
audits of its facility(ies) [of appropriate frequency and
duration] in accordance with the Audit Workplan attached hereto
as Exhibit B [company specific; not included]. The first such
audit shall commence on or about three months from the effective
date of this Decree/Agreement. Each of the audits shall be
completed in accordance with the schedule set forth in the
Audit Workplan.
2. The performance standard of each such audit is to
complete a detailed and professional investigation as set forth
in the Audit Workplan of the facility's recordkeeping practices
and environmental management operations during the [applicable
period]. In accordance with the Audit Workplan, the following
audit reports shall be prepared and submitted, with copies of
supporting documentation, to EPA within thirty days following
the initiation of each such audit:
a. A report on all [pollutants] whose locations (as
reported in the facility records) differ from their observed
physical location or whose physical locations cannot be corrob-
orated by existing records kept at the facility.
b. A report of all quantity variations (of 10% or more
by volume or weight, or any variation in piece count) between
[pollutants] received and [pollutants] disposed of at the
facility.
c. A report on Defendant's/Respondent's activities at
the facility in terms of whether or not they comply with the
procedures required under the [Pollutant] Analysis Plan for
[pollutant] acceptance. Defendant/Respondent shall include
with this report the results of a minimum of three laboratory
(including Defendant's/Respondent's laboratory) analyses of
blind standards (i.e., pre-analyzed samples whose concentrations
are unknown to the laboratories participating in the audit) to
be provided by the audit team to evaluate Defendant's/Respondent's
ability to quantify representative hazardous constituents In
various media.
d. A report of any observed deviations from Defendant's/
Respondent's written operating procedures, including documentation
on any untimely response to the repair and/or replacement of
deteriorating or malfunctioning [pollutant] containers, structures,
or equipment.
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-2-
e. Recommendations as to potential significant improve-
ments and/or modifications which should be made to Defendant's/
Respondent's operating procedures to achieve compliance with
[applicable statutory and regulatory] requirements.
3. Nothing in this Decree/Agreement shall preclude EPA
from instituting enforcement actions against Defendant/Respondent
for any violations of [applicable statutory and regulatory]
requirements which are not cited within the Complaint giving
rise to this Decree/Agreement.
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Attachment F
MODEL ENVIRONMENTAL COMPLIANCE AND MANAGEMENT AUDIT PROVISION
FOR CONSENT DECREES AND AGREEMENTS*
TABLE OF CONTENTS
Paqe
I. PRELIMINARY STATEMENT
Purposes of Consent Decree/Agreement 1
II. DEFINITIONS 1
III. GENERAL AUDIT PROCEDURES
Preliminary Matters
Scope of Work 6
Establishment of Trust . 6
Selection of Audit Firm 7
Audit Seminar 7
Observation of EPA Protocols 7
Review of Work Plan 7
Facilities to be Audited 8
IV. FACILITY COMPLIANCE AUDITS
Records to be Examined 9
Records Relevant to Compliance
with RCRA , 9
Records Relevant to Compliance
with TSCA 9
Records to be Examined by the
Audit Firm .. 9
Access to Documents ... * . • 10
* This provision is only appropriate for a party with an exten-
sive history of noncompliance. It requires a high level of
Agency oversight. As an internally developed document that
has not been subjected to the negotiation process, the provi-
sion is more susceptible than other model provisions to the
give and take of negotiation. While the provision only
addresses requirements under RCRA and TSCA, audit provisions
under other statutes may be crafted by using as a framework
the headings contained in this provision.
-------
o
TABLE OF CONTENTS (Continued)
Page
Tentative Observance of CBI Claims 11
Preservation of Records 11
Examination of Groundwater Monitoring
Information 11
Audit Schedule/Agency Access to
Defendant' a Facilities 11
Facility Audit Reports 11
Correction of Violations/Submission of
Compliance Plans 12
V. PENALTIES AND CORRECTIVE ACTION
For Missed Audit Deadlines. .. 12
For Violations of RCRA/TSCA
Payment of Penalties 12
Unlisted Violations 13
Uncorrected or New
Violations 13
VI. RESERVATION OF RIGHTS
Reservation of States' and Local Govern-
ments'1 Right to Inspect 13
Reservation of Agency's Right
to Relief 14
VII. MANAGEMENT SYSTEMS AUDIT
Corporate Management Systems Report 14
Corporate Management Report and Plan 14
VIII. MISCELLANEOUS TERMS
Submission of Reports 14
Effective Date of Decree/Agreement........ 15
ii
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TABLE OF CONTENTS (Continued)
Page
Notice 15
Modification 15
Dispute Resolution 15
Continuing Jurisdiction of the District
Court/Administrative Law Judgs 15
Relation to RCRA Permitting Process 15
Violations Not Covered by RCRA or TSCA.... 16
Continuing Audit Requirement .... 16
DEFENDANT'S/RESPONDENT'S FACILITIES Appendix 1
PENALTY SCHEDULE Append ix 2
CORPORATE MANAGEMENT SYSTEMS REPORT
PROTOCOL Appendix 3
111
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Attachment F
MODEL ENVIRONMENTAL COMPLIANCE AND MANAGEMENT AUDIT PROVISION
FOR CONSENT DECREES AND AGREEMENTS7
TABLE OF CONTENTS
Page
I. PRELIMINARY STATEMENT
Purposes of Consent Decree/Agreement 1
II. DEFINITIONS 1
III. GENERAL AUDIT PROCEDURES
Preliminary Matters
Scope of Work 6
Establishment of Trust 6
Selection of Audit Firm 1
Audit Seminar 7
Observation of EPA Protocols 7
Review of Work Plan 7
Facilities to be Audited 8
IV. FACILITY COMPLIANCE AUDITS
Records to be Examined 9
Records Relevant to Compliance
with RCRA 9
Records Relevant to Compliance
with TSCA 9
Records to be Examined by the
Audit Firm 9
Access to Documents 10
* This provision is only appropriate for a party with an exten-
sive history of noncompliance. It requires a high level of
Agency oversight. Based on a draft settlement document, the
provision reflects a pro-Agency bias and thus is more suscep-
tible than other model provisions to the give and take of
the negotiation process. While the provision only addresses
requirements under RCRA and TSCA, audit provisions under
other statutes may be crafted by using as a framework the
headings contained in this provision.
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TABLE OF CONTENTS (Continued)
Page
Public Access to Records 10
Assertion of Confidential Business
Information Claims 10
Tentative Observance of CBI Claims 11
Preservation of Records. 11
Examination of Groundwater Monitoring
Information 11
Audit Schedule/Agency Access to
Defendant' s Facilities 11
Facility Audit Reports 11
Correction of Violations/Submission of
Compliance Plans 12
V. PENALTIES AND CORRECTIVE ACTION
For Missed Audit Deadlines 12
For Violations of RCRA/TSCA
Payment of Penalties 12
Unlisted Violations 13
Uncorrected or New
.Violations 13
VI. RESERVATION OF RIGHTS
Reservation of States' and Local Govern-
ments ' Right to Inspect 13
Reservation of Agency's Right
to Relief 14
VII. MANAGEMENT SYSTEMS AUDIT
Corporate Management Systems Report 14
Corporate Management Report and Plan 14
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TABLE OF CONTENTS (Continued)
Paqe
VIII. MISCELLANEOUS TERMS
Submission of Reports 14
Effective Date of Decree/Agreement 15
Notice 15
Modification 15
Dispute Resolution 15
Continuing Jurisdiction of the District
Court/Administrative Law Judge 15
Relation to RCRA Permitting Process 15
Violations Not Covered by RCRA or TSCA.... 16
Continuing Audit Requirement 16
DEFENDANT ' S/RESPONDENT ' S FACILITIES Appendix 1
PENALTY SCHEDULE Appendix 2
CORPORATE MANAGEMENT SYSTEMS REPORT
PROTOCOL Appendix 3
ill
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1. Purposes of Consent Decree/Agreement. In order to
achieve the mutual goal of ensuring full compliance with applicable
environmental laws, regulations, and permits by Defendant's/
Respondent's active facilities in an efficient and coordinated
manner, Defendant/Respondent and EPA hereby enter into a Consent
Decree/Agreement under which:
(1) independent auditors to be retained by EPA and
paid for by Defendant/Respondent shall, subject to EPA
oversight, audit each facility and report to both
parties on their assessment of Defendant's/Respondent's
compliance with RCRA and TSCA and their implementing
permits, rules and regulations;
(2) the independent auditors shall perform an analysis
of Defendant's/Respondent's environmental management
systems, practices and policies, as they affect inter-
facility and intra-facility transactions (as defined
in Paragraphs 5(11) and 5(12) of this Decree/Agreement);
(3) Defendant/Respondent shall pay penalties for
violations of the aforementioned statutes, permits,
rules and regulations according to the Penalty ScheduLe
set forth as Appendix 2 to this Decree/Agreement; and
(4) EPA shall accept the penalties provided in Appendix
2 as full and complete settlement and satisfaction of
any of its civil claims for violations detected by
the audit firm (with certain exceptions as set forth
in Paragraphs 23, 24, and 25 of this Decree/Agreement).
TERMS OF SETTLEMENT
DEFINITIONS
5. Whenever the following terms are used in this Decree/
Agreement, the definitions specified herein shall apply:
(1) Compliance Report and Plan: A document to be
submitted by Defendant/Respondent to EPA, pursuant to
Paragraph 19 of this Decree/Agreement, which:
(a) describes in full detail every corrective
action taken in response to a Facility
Audit Report?
(b) in the case of violations which are not
corrected within 60 days of submittal of
the Facility Audit Report, describes every
action to be taken in response to any
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violatipns or findings in the Facility
Audit Report; and
(c) certifies under oath the accuracy of
information contained in the Compliance
Report and Plan.
(2) Confidential Business Information (CBI)
(a) Information/Documents Determined Not to Be
Entitled to CBI Protection. It is agreed
between the parties that portions of docu-
ments containing the following information
shall not be eligible for CBI treatment:
(i) The fact that any chemical waste was
disposed of at any Defendant/Respondent
facility.
(ii) The location of disposal of any chemical
waste at any Defendant/Respondent facility.
(iii) Any information contained or referred
to in any manifest for any chemical
waste disposed of at any Defendant/
Respondent facility.
(iv) The identity and quantity of any chemical
waste disposed of at any Defendant/Respondent
facility.
(v) Any monitoring data or analysis of
monitoring data pertaining to disposal
activities at any Defendant/Respondent
facility, including monitoring data
from any well, whether or not installed
pursuant to 40 C.F.R. Part 265, Subpart
F, or 40 C.F.R. Part 254, Subpart F
(-RCRA Groundwater Monitoring Requirements) .
(iv) Any permit applications submitted to
EPA or to any state pursuant to federal
or state statute or regulation.
(vii) Any information regarding planned im-
provements in the treatment, storage or
disposal of chemical wastes at any
Defendant/Respondent facility.
(viii) Any hydrogeologic or geologic data.
(ix) Any groundwater monitoring data.
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(x) Any contingency plans, closure plans,
or post-closure plans.
(xi) Any waste analysis plans.
(xii) Any training and/or inspection manuals
and schedules.
(xiii) Any point source discharge or receiving
water monitoring data.
(b) The status of information .not listed in Section
(a) above shall be determined in accordance with
40 CFR Part 2, which provides for CBI treatment of
information where:
(i) Defendant/Respondent has taken reasonable
measures through the issuance and
observance of companywide policies and
procedures to protect the confidentiality
of the information, and that it intends
to continue to take such measures;
(ii) The information is not, and has .not been,
reasonably obtainable without Defendant's/
Respondent's consent by other persons
(other than governmental bodies which
are bound by and observing Defendant's/
Respondent's claims of CBI as to that
information) by use of legitimate means
(other than discovery based on a showing
of special need in a judicial or quasi-
judicial proceeding);
(iii) Disclosure of the information is likely
to cause substantial harm to Defendant's/
Respondent's competitive position.
(3) Corporate Management Report and Plan; A document
submitted by Defendant/Respondent to EPA, pursuant to
Paragraph 27 of this Decree/Agreement, describing in
full detail what actions Defendant/Respondent has
taken or will take to implement the findings of the
Corporate Management Systems Report.
(4) Corporate Management Systems Report; A fully
integrated separate report prepared pursuant to the
Corporate Management Systems Report Protocol set
forth in Appendix 3 of this Decree/Agreement and
submitted by Defendant/Respondent to EPA pursuant
to Paragraph 26 of this Decree/Agreement.
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(5) Corrective Action; Any action taken by Defendant/
Respondent in order to come into compliance with any
federal, state or local statutory or regulatory
requirement for the treatment, storage, or disposal
of any Hazardous Substance.
(6) Facility Audit Reports: Reports to be submitted
by the Audit Firm to EPA, pursuant to Paragraph 19
of this Decree/Agreement, which:
(a) describe in detail the procedures followed
in the facility audit, the facility itself,
the regulatory history of the facility,
and the facility's current compliance
status;
(b) describe in detail each violation detected
during the audit;
(c) provide any other information which, in
the judgment of the Audit Firm, merits
Agency review;
(d) for each violation reported, provide the
relevant statutory or regulatory section;
the particular area of the facility where
the violation was found (if appropriate);
the dates during which the violation
occurred or existed (if it can reasonably
be determined); and any other relevant or
appropriate information.
(7) Hazardous Substances; Those materials meeting
the definition contained in the Comprehensive
Environmental Response, Compensation, and Liability
Act ("CERCLA"), 42 U.S.C. §§9601 et £6£. , §9601(14).
(8) -Hazardous Wastes: Those materials meeting the
definition contained in 42 U.S.C. §6903(5) and the
regulations promulgated at 40 C.F.R. Part 261.
(9) Independent Audit Firm ("Audit Firm"): A firm
selected by EPA, pursuant to Paragraph 6 of this
Decree/Agreement, for the purpose of performing the
Facility Compliance and Management Systems Audits
described herein. For the purpose of this Decree/
Agreement, the Independent Audit Firm must exercise
the same independent judgment that a Certified Public
Accounting firm would be expected to exercise in
auditing a publicly held corporation. In addition,
the Independent Audit Firm must:
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(a) not own stock in Defendant/Respondent
or any parent, subsidiary, or affiliated
corporation;
(b) have no history of participation in any
previous contractual agreement with .
Defendant/Respondent or any parent, subsidiary,
or affiliated corporation; and
(c) have no other direct- financial stake in
the outcome of the Facility Compliance or
Management Systems Audits outlined in
this Decree/Agreement.
(10) Inter-facility Transactions; Any letters,
contracts, memoranda, or other communications between
two or more offices or facilities owned or operated
by Defendant/Respondent.
(11) Intra-facility Transactions; Any letters,
contracts, memoranda, or other communications between
two or more locations or offices at a single Defendant/
Respondent Facility.
(12) Manifest; The shipping document EPA form
8700-22 and, if necessary, EPA form 8700-22A (as
required by 40 C.F.R. Part 262) or equivalent.
(13) New Violation; Any statutory or regulatory
violation not reported in the Facility Inspection
Report.
(14) Plaintiff; The United States of America, for
the Administrator of the United States Environmental
Protection Agency (collectively, "the Agency" or
"EPA").
(151 Records; Any Defendant/Respondent or consultant
report, document,, writing, photograph, tape recording
or other electronic means of data collection and
retention which bears upon Defendant's/Respondent's
compliance with EPA, state and local rules and regulations,
(16) Facility; Any facility which treats, stores, or
disposes of hazardous waste as those terms are defined
at 42 U.S.C. §§6903(3), 6903(33), and 6903(34).
(17) Uncorrected Violation; Any violation reported
in a Facility Inspection Report which remains
uncorrected for 60 days or more after the completion
and submission of the Facility Inspection Report
pursuant to Paragraph 19 of this Decree/Agreement.
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GENERAL AUDIT PROCEDURES
6. Preliminary Matters
(1) Scope of Work
(a) Defendant/Respondent shall submit to the Agency
within thirty (30) days of the effective date of this
Decree/Agreement the Scope of Work for audits of the
Defendant/Respondent facilities listed in Appendix
1 for RCRA and TSCA violations. EPA shall have
thirty (30) days from the date of receipt of this
Scope of Work and proposed Audit Firm to submit to
Defendant/Respondent in writing any proposed modifi-
cations in the scope of work.
(b) Defendant/Respondent shall have fifteen (15)
days from the date of receipt of EPA's proposed modifi-
cations within which to submit in writing its comments
upon those proposed modifications.
(b) Within ten (10) days of receipt of Defendant's/
Respondent's comments, the Agency shall issue its
final decision as to the Scope of Work, which shall
be binding upon Defendant/Respondent.
(2) Establishment of Trust
(a) Within thirty (30) days of the date of this
Decree/Agreement, Defendant/Respondent shall establish
an irrevocable trust fund ("Trust"), the form and
text of which shall be approved by EPA. If no fund
is approved by EPA within thirty (30) days of the
date of this Decree/Agreement, a form supplied by EPA
shall be used. The Trustee shall be a bank selected
by Defendant/Respondent, which must be approved by EPA.
(b) .The Administrator of EPA shall have special
power of appointment (and the only power of appoint-
ment) over all income and all assets of the Trust.
That power may be exercised only to make appointments
of funds in accordance with this Decree/Agreement.
If, at the conclusion of all tasks set forth in this
Decree/Agreement, there remains trust income or
assets which have not been appointed by exercise of
such special power, then all such remaining unappointed
assets shall be delivered forthwith to Defendant/
Respondent. Defendant/Respondent shall fund the
Trust by placing $ in the hands of the
Trustee within forty-five (45) days after the date of
this Decree/Agreement.
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(3) Selection of Audit Firm
(a) Within forty-five (45) days after the date of
this Decree/Agreement, EPA shall notify Defendant/
Respondent of its selection of a proposed Audit Firm.
Defendant/Respondent shall have fifteen (15) days from
the date of receipt of EPA's proposed Audit Firm to
accept, reject, or comment upon this selection.
Reasons for which Defendant/Respondent may reject the
proposed Audit Firm are limited to lack of sufficient
national reputation; inexperience in performing
environmental compliance and management audits;
inadequate staffing levels; and failure to qualify as
an Independent Audit Firm as defined in Paragraph
5(10) of this Decree/Agreement.
(b) In the event EPA and Defendant/Respondent are
unable to agree on selection of an Audit Firm, the
parties shall submit to Dispute Resolution as set
forth in Paragraph 32 of this Decree/Agreement.
7. Audit Seminar. Before the Audit Firm begins the
audits, and within 60 days of the date EPA and Defendant/
Respondent agree upon the Scope of Work and Audit Firm as
described above, the Agency shall conduct a seminar for
employees of the Audit Firm who are to conduct the audits.
This seminar shall serve the purpose of assuring that the Audit
Firm employees who will be conducting the audits are familiar
with all protocols required by Agency policies and procedures
to be utilized in conducting compliance audits. The Agency
may conduct the audit seminar at the National Enforcement
Investigations Center (NEIC) near Denver, Colorado or at the
Audit Firm's office. The Agency shall not be responsible for
transportation, lodging or other costs associated with attendance
by the audit firm employees at the seminar.
8. Observation of EPA Protocols. The Audit Firm shall
be required by-contract with Defendant/Respondent to observe
the protocols presented at. the audit seminar. Such protocols
include but are not limited to: (1) NEIC's Multi-Media Com-
pliance Audit Procedures; (2) the EPA Office of Administration's
Environmental Auditing Protocol; (3) the NEIC Policy and Procedure
Manual; and (4) the Corporate Management Systems Report Protocol
provide3 in Appendix 3 of this Decree/Agreement (See Paragraph
26 below).
9. Review of Work Plan.
(1) Within 30 days of the Audit Seminar, the Audit
Firm shall submit to Defendant/Respondent and EPA a
proposed Work Plan which shall specify the Audit
Firm's plan for implementing the Scope of Work. Said
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Work Plan shall include the auditing protocols to be
used by the Audit Firm; a schedule for conducting
facility audits and completion of all other tasks
set forth in the Scope of Work; and the names and
resumes of those Audit Firm employees who will be
primarily responsible for performance of the tasks
set forth in the Scope of Work. The proposed Work
Plan shall not specify the order of audits or otherwise
provide Defendant/Respondent with advance notice of
specific audits.
(2) EPA and Defendant/Respondent shall have 30 days
from the date of receipt of the proposed Work Plan to
submit in writing any proposed revisions to the proposed
Work Plan.
(3) The Audit Firm shall have fifteen (15) days from
the date of receipt of these revisions within which
to submit in writing its comments on these proposed
revisions.
(4) Within ten (10) days of receipt of the Audit
Firm's comments, EPA shall issue its final decision
as to the work plan, which shall be binding on both
Defendant/Respondent and the Audit Firm.
(5) The provisions of this Paragraph shall also be
set forth as provisions of the contract between
Defendant/Respondent and the Audit Firm for the
performance of the subject audits.
10. Facilities to be Audited. The Audit Firm shall,
subject to the provisions set forth herein, conduct comprehensive
RCRA/TSCA Compliance Audits (see Paragraphs 11 through 25) and
a Management Systems Audit (see Paragraphs 26 and 27) of the
facilities listed in Appendix 1 of this Decree/Agreement.
The designation of RCRA/TSCA as the primary areas of audits
shall not prohibit the Audit Firm from auditing and reporting
violations of any other environmental statutes or regulations
should those violations come to the attention of the Audit Firm
audit team during the inspections. Notice of individual
facility audits shall be provided to NEIC at least thirty (30)
days prior to scheduled visits. Advance notice of individual
facility inspections shall not be provided to Defendant/Respondent.
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FACILITY COMPLIANCE AUDITS
Review of Records
11. Records to be Examined.
a. Records Relevant to Compliance with RCRA.
Facility audits may include a review of any facility
record of Defendant/Respondent or its predecessors
from November 1980* Other records pre-dating
November 1980 which bear on the facility's compliance
after November 1980 may also be examined, but
only to the extent that they are necessary to
render judgment regarding any event occurring
after November 1980.
b. Records Relevant to Compliance with TSCA.
Facility audits may include a review of any facility
record of Defendant/Respondent or its predecessors
from April 1978 which is relevant to compliance
with TSCA and its implementing regulations.
Other records pre-dating April 1978 which bear on "
the facility's compliance after April 1978 may
also be examined, but only to the extent that they
are necessary to render judgment regarding any
event occurring after April 1978.
c. Records to be Examined by the Audit Firm. Records
to be examined include but are not limited to:
(1) all records required by federal, state or
local law to be maintained by Defendant/Respondent.
(2) facility operating records, including but not
limited to waste profile sheets, containing waste
pre-acceptance data, receiving logs, analytical
verification data, waste tracking data for intra-
facility movement of received wastes or wastes
generated on-site, waste storage data, waste
treatment data, and data reflecting the disposition
of received wastes.
(3) corporate and facility guidelines, policies
and internal operating rules pertaining to facility
operations, inspections, personnel training, and
recordkeeping procedures.
(4) corporate guidelines, policies and internal
operating rules pertaining to emergency response,
site closure, and postclosure activities.
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(5) applications, licenses, permits and approvals
(including state permits and approvals), RCRA opera-
tion plans, or other regulatory documents pertaining
to on-site activities at the facility.
(6) environmental monitoring plans for the facility.
(7) waste treatability studies.
(8) PCS operations plans, letters of approval,
pumping logs, and records pertaining to the processing
or handling of transformers, capacitors, and/or
any other PCS articles, items and containers.
(9) manifests for wastes entering or leaving any
Defendant/Respondent facility.
(10) records of use, maintenance and decommissioning
of vehicles used on-site and/or off-site for the
transportation of RCRA/TSCA wastes to, from, and
within any Defendant/Respondent facility.
(11) vehicle washing records.
(12) any effluent data, including data on any direct
discharge to surface water or any discharge to a
publicly owned treatment facility, which Defendant/
Respondent is required to keep pursuant to any
federal, state, or local permit or regulation.
12. Access to Documents. The Audit Firm and representatives
of the Agency, including contractors, shall have full, unfettered
access to all documents bearing upon compliance with RCRA or TSCA
kept at each facility or at Defendant's/Respondent's corporate
headquarters, regardless of whether these records are deemed
by Defendant/Respondent to constitute CBI or deemed by the
Audit Firm to indicate or- support a violation. The Defendant/
Respondent shall retain and make available to EPA copies of
any Defendant/Respondent document(s) examined by the Audit Firm
which indicate or support 'any violation detected during the
audit program. The Audit Firm shall prepare and provide to EPA
a full and complete index of all documents that it examines to
ensure that the Defendant/Respondent retains these records for
subsequent EPA inspection.
13. Public Access to Records. Each document submitted
by Defendant/Respondent to the Audit Firm or EPA pursuant to
this Decree/Agreement shall be subject to public inspection
unless it is determined by EPA (following a claim made by Defendant/
Respondent) to be CBI in accordance with Paragraphs 5(2) and
14 of this Decree/Agreement.
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14. Assertion of Confidential Business Information Claims.
a. Defendant/Respondent recognizes that EPA will
treat as TSCA CBI only that information claimed confidential
which EPA uses for purposes related to TSCA.
b. Claims that information is CBI shall be made on
or before the date on which such information is provided to
the Audit Firm or EPA.
15. Tentative Observance of CBI Claims. Any information
claimed by Defendant/Respondent and asserted to meet the criteria
set forth in Paragraph 5(2) will be treated by EPA as confidential
in accordance with 40 C.F.R. §§2.201 through 2.215 and any
relevant special confidentiality regulations at 40 C.F.R. §§2.301
et seq. pending any final determination that the information is
not CBI.
16. Preservation of Records. Defendant/Respondent shall
preserve all Records examined by the Audit Firm for three years
after submission of its Corporate Management Report and Plan to
EPA (See Paragraph 27 below). Nothing in this provision shall-
authorize destruction of any document required by law or regula-
tion to be preserved for any period of time in excess of three
years.
17. Examination of Groundwater Monitoring Information.
The Audit Firm shall be required to examine and submit to EPA
groundwater monitoring plans and data for each Defendant/Respon-
dent facility listed in Appendix 1 of this Decree/Agreement.
18. Audit Schedule/Agency Access to Defendant's/
Respondent's Facilities.All audits by the Audit Firm of the
sites listed in Appendix 1 of this Decree/Agreement shall be
completed within 180 days of EPA approval of the Work Plan as
described in Paragraph 9 above. Representatives of the Agency,
including contractors, may accompany audit teams from the
Audit Firm on site audits" performed by the Audit Firm and
oversee the performance of the audits by the audit teams for
the purpose of ensuring that the audit procedures and protocols
required by the contract are followed.
19. Facility Audit Reports. As each separate facility
audit is completed, the Audit Firm shall, no later than 30
days thereafter, simultaneously submit to Defendant/Respondent
and the Agency a copy of a Facility Audit Report as defined in
Paragraph 5(7). The failure of the Facility Audit Report to
include all of the required information for any violation
specified in the report shall not be grounds for avoidance of
any penalty which is payable under the Penalty Schedule set
forth in Appendix 2. The Agency shall not be bound by any
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determination of the Audit Firm indicating that Defendant/
Respondent is in compliance with any applicable statutory or
regulatory requirement.
20. Correction of Violations/Submission of Compliance Plans.
In addition to pacing the penalties set forth in the Penalty
Schedule below, Defendant/Respondent shall:
(1) correct any violation indicated within a Facility
Audit Report as soon as is physically possible.
(2) No later than 60 days after it has received an
individual Facility Audit Report, submit to the Agency
a Compliance Report and Plan.
The Agency shall not be bound by any Defendant/Respondent
determination that it has achieved compliance, that the compliance
was physically impossible to achieve, or that the times for correc-
tive actions proposed by Defendant/Respondent to achieve compliance
are reasonable. All corrective actions mandated by this Decree/
Agreement shall be undertaken in accordance with applicable
federal, state and local law.
PENALTIES AND CORRECTIVE ACTION
21. For .Missed Audit Deadlines. Defendant/Respondent shall
pay the following stipulated penalties for any failure by Defendant/
Respondent to comply with any time requirement set forth in this
Decree/Agreement:
Period of Failure to Comply Penalty per Day of Delay
1st day through 14th day $ 5,000.00
15th day through 44th day $10,000.00
45th day and beyond $15,000.00
For Violations'of RCRA/TSCA
22. Payment of Penalties. For every violation of RCRA
or TSCA reported in each Facility Audit Report, Defendant/
Respondent shall pay a penalty based on the Penalty Schedule
provided as Appendix 2 of this Decree/Agreement. The listing
of the violation in a Facility Audit Report shall be conclusive
and binding on Defendant/Respondent, and the amount set forth in
the Penalty Schedule shall be due and payable by certified check
to the "Treasurer of the United States." The check shall be
remitted to:
[appropriate EPA lockbox address]
within 30 days of receipt of the applicable Facility Inspection
Report. Penalties shall accrue from the date the violation is
determined to have begun to the date such violation is corrected
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or abated. Subject to the rights reserved in Paragraph 25
below, EPA will not take further enforcement action on those
violations for which penalties are paid and corrective action
taken in compliance with this Decree/Agreement.
23. Unlisted Violations. In the event that the audit
firm reports statutory or regulatory violations other than those
listed in Appendix 2, Defendant/Respondent shall correct such
violations as soon as is physically possible. In addition, the
parties will, for a period of 60 days following receipt of the
Facility Audit Report in which such unlisted violations are
contained, attempt to settle by negotiation the appropriate
remedy and penalties Defendant/Respondent shall pay for such
unlisted violations. In such negotiations, the parties will
compare each unlisted violation to the most similar listed
violation, if possible. In the event of failure of the parties
to achieve settlement of unlisted violations within 60 days,
EPA shall be free to take any enforcement measure authorized
by law.
24. Uncorrected or New Violations. Beginning on the date
EPA receives a Facility Audit Report, Defendant/Respondent
shall have sixty (60) days to correct violations cited therein.
For any previously reported violation discovered to be uncorrected
at the end of such sixty (60)-day-period, Defendant/Respondent
shall pay a civil penalty of $25,000 per day for each day of
continued noncompliance unless, within sixty (60) days,
Defendant/Respondent has notified the Agency in accordance
with Paragraph 20 that compliance is physically impossible and
has obtained a final decision from the Agency verifying such
physical impossibility. If, during the audit period or during
the first post-audit inspection, the Agency discovers violations
which were not reported to the Agency by the Audit Firm, for
such violations Defendant/Respondent shall pay a civil penalty
as set forth in the Penalty Schedule (Appendix 2). In addition,
the Agency reserves the right to initiate civil or criminal
action (or both) with regard to any previously reported and
uncorrected violation and any violation not previously reported.
25. Reservation of Rights.
a. Reservation of States' and Local Governments'
Right to Inspect Defendant's/Respondent's Facilities.
Nothing in this Decree/Agreement shall limit the
authority of EPA or any state or local government
to enter and inspect any Defendant/Respondent
facility.
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b. Reservation of Agency's Right to Seek Relief.
Except as provided in Sections 21 through
24 above, nothing in this Decree/Agreement shall
be construed to limit the ability of the United
States to take any enforcement action authorized
by law.
MANAGEMENT SYSTEMS AUDIT
26. Corporate Management Systems Report. No later than
60 days after the last Facility Audit Report is submitted to
Defendant/Respondent and EPA, the Audit Firm shall submit to
Defendant/Respondent and EPA a Corporate Management Systems
Report as defined in Paragraph 5(4) of this Decree/Agreement.
27. Corporate Management Report and Plan. No later than
90 days after it has received the Corporate Management Systems
Report, Defendant/Respondent shall submit to the Agency its own
Corporate Management Report and Plan describing in full detail
what actions it has taken or will take to implement the findings
of the Corporate Management Systems Report.
MISCELLANEOUS TERMS
28. Submission of Reports. Any reports produced by the
Audit Firm, including Facility Audit Reports and the Corporate
Management Systems Report, shall be submitted simultaneously
to EPA and Defendant/Respondent. The Audit Firm shall not
share draft copies of such reports with Defendant/Respondent
unless such drafts are simultaneously submitted to EPA. The
requirements of this Paragraph shall be set forth as a requirement
in the contract between Defendant/Respondent and the Audit Firm
for the performance of the audits described herein.
29. Effective Date of Decree/Agreement. This Decree/
Agreement shall be considered binding and in full effect upon
approval by the Federal district court judge/administrative
law judge to whom this matter has been assigned.
30. Notice. All submissions and notices required by this
Order shall be sent to the following address(es):
[insert address(es> of EPA office(s) overseeing Decree/Agreement]
31. Modification. This Decree/Agreement may be modified
upon written approval of all parties hereto, and concurrence of
the Federal District Court Judge/administrative law judge
assigned to this matter.
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32. Dispute Resolution.
(1) The parties recognize that a dispute may arise
between Defendant/Respondent and EPA regarding plans,
proposals or implementation schedules required to be
submitted, regarding tasks required to be performed
by Defendant/Respondent pursuant to the terms and
provisions of this Decree/Agreement, or regarding
whether Defendant/Respondent has incurred liability
to pay stipulated penalties under Paragraphs 19
through 24. If such a dispute arises, the parties
will endeavor to settle it by good faith negotiations
among themselves. If the parties cannot resolve the
issue within a reasonable time, not to exceed thirty
(30) calendar days, the position of EPA shall prevail
unless Defendant/Respondent files a petition with the
court/administrative law judge setting forth the
matter in dispute. The filing of a petition asking
the court/administrative law judge to resolve a
dispute shall not extend or postpone Defendant's/
Respondent's obligations under this Decree/Agreement
with respect to the disputed issue.
(2) In presenting any matter in dispute to the court/
administrative law judge, Defendant/Respondent shall
have the burden of proving that EPA's interpretation
of the requirements of this Decree/Agreement are arbi-
trary, capricidus, or otherwise not in accordance with
the law.
33. Continuing Jurisdiction of the District Court/Adminis-
trative Law Judge.The district court/administrative forum in
which this Decree/Agreement is entered shall retain jurisdiction
until all obligations set forth herein are satisfied.
34. Relation to RCRA Permitting Process. Notwithstanding
any other provision of this Decree/Agreement, EPA hereby reserves
all of its rights, powers and authorities pursuant to the
provisions of 42 U.S.C. §§6901 ejt seq. (RCRA) governing permits
for facilities, and the regulations promulgated thereunder.
35. Violations Not Covered by RCRA or TSCA. No stipulated
penalty or other remedy agreed to shall cover or apply to
non-RCRA, non-TSCA violations. The parties shall be left to
their respective rights, liabilities and defenses with regard
to these matters.
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36. Continuing Audit Requirement. For the five-year-period
beginning on the date that Defendant/Respondent submits to the
Agency the Corporate Management Report and Plan required by
Paragraph VII. 27. of this Decree/Agreement, Defendant/Respondent
shall conduct comprehensive audits not less often than annually
of the compliance of its facilities with [applicable statutory
and regulatory requirements]. After the initial audit by a
third party consultant (as required by this Decree/Agreement),
such audits may be conducted by such a consultant or by an
independent audit staff of the company not responsible to
production management. Reports of the results of such audits
shall be furnished to the [appropriate corporate environmental
official and plant manager]. Within thirty (30) days after
completion of each final annual audit report, Defendant/Respondent
shall submit to EPA a report of incidents of noncompliance
identified by the audit and steps that will be taken to correct
any continuing noncompliance and prevent future incidents of
noncompliance.
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