BACKGROUND DOCUMENT RESOURCE CONSERVATION AND RECOVERY ACT SUBTITLE C - HAZARDOUS WASTE MANAGEMENT SECTION 3004 - STANDARDS APPLICABLE TO OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES Part 265 Subpart G - INTERIM STATUS STANDARDS FOR CLOSURE AND POST-CLOSURE CARE U.S. ENVIRONMENTAL PROTECTION AGENCY OFFICE OF SOLID WASTE April 1980 ------- TABLE OF CONTENTS I. INTRODUCTION 1 Key Definitions 3 II. RATIONAL FOR REGULATION 6 A. EPA Authority 6 B. Basis for Regulation and Damage Cases 7 C. State Precedents 13 III. ANALYSIS OF CLOSURE AND POST-CLOSURE COMMENTS AND REGULATORY SYNOPSES AND RATIONALE 15 Closure Performance Standard 16 - Closure and Post-Closure Plans 18 Close-out Requirements 25 - Time Allowed for Closure 27 Disposal or Decontamination of Equipment 29 - Close-out and Closure Notification 30 Closure and Post-Closure Certification 31 - Notification of New Owner or Operator 34 Post-Closure Care 36 Equipment and Provisions for Post-Closure Groundwater Monitoring 37 - Post-Closure Period and Effectiveness and Approach to Post Closure Regulation 38 Post-Closure Use of Property and Notice in Deed to Property 53 - Notice to Local Land Authority 57 Compliance with Financial Requirements 61 - Post-Closure Legislation 62 IV. FINAL INTERIM STATUS REGULATIONS 66 V. REFERENCES 72 iii ------- I. INTRODUCTION This is one of a set of background documents accompanying the first set of regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act. These regulations represent EPA's initial efforts to control hazardous waste generation, transporta- tion, treatment, storage and disposal. This document, and the other background documents, explains why EPA developed the regulations and why they are written as they are. In so doing, EPA addresses (1) the Congressional authority for regu- lations, (2) the need for the regulation based on common sense as well as threats to human health and the environment, (3) precedents set by State regulations, and perhaps more importantly, and (4) the many public comments on the proposed version of these regulations which were published in the Federal Register on December 18, 1978. This background document discusses only the non-technical as- pects of closure and post-closure for the Interim Status Standards. The Agency regulates technical requirements for closure and post- closure for interim status in §265.197 for tanks, §265.228 for sur- face impoundments, §265.280 for land treatment, §265.310 for land- fills, §265.351 for incinerators, §265.381 for thermal treatment, and §265.404 for other types of treatment facilities. The General Status Standards will be promulgated later in the year and are expected to be similar to these interim status regulations but will include ------- approval of the closure and post-closure plans by the Regional Administrator at the time of permitting. Many readers of the proposed regulations and the accompanying support documents reached a common misunderstanding concerning which facilities were subject to the closure and post-closure requirements. The Agency would like to clarify this at the outset of this document, to avoid further confusion. All treatment, storage, and disposal facilities managing hazardous wastes which are subject to the provisions of Part 265 are subject to the closure regulations. Only disposal facilities (those in which wastes will remain after closure) are subject to the post-closure requirements. The proposed regulation required that owners or operators monitor and maintain disposal facilities for 20 years after they completed closure. The Final Interim Status Standards requires 30 years of post-closure monitoring and maintenance. However, EPA provides exceptions if the owner or operator can demonstrate to the Regional Administrator that a shorter time period poses no danger to human health or the environment, or if an interested person can demonstrate to the Regional Administrator that the monitoring and maintenance period should be extended. The Regional Administrator can also extend the post-closure period on his own for cause. Generally, the Agenc, has avoided interim status procedures which require regulated parties to consult with or submit applica- tions to the Agency. (See the Preamble to the regulations for a ------- general discussion of interim status.) Because of the importance of closure and post-closure care in protecting human health and the environment, however, these interim status regulations require some interaction between EPA and the regulated community. Owners or operators who close during the interim status period must submit both the closure and post-closure plans to the Regional Administrator. During interim status, all operating facilities must have closure and post-closure plans but they need not submit them until just before closure. The interim status regulations also require that the owner or operator submit closure certification to the Regional Administra- tor, and survey plats to the Regional Administrator and the local land use authority. Key Definitions The following terms are pertinent to this regulation: "Closed Portion" means that portion of a facility which an owner or operator has closed in accordance with the facilitiy closure plan and all applicable closure requirements. This definition is the same as in the proposed regulation. "Close Out" means the time at which facility owners or operators discontinue operation by ceasing to accept hazardous waste treatment, storage, or disposal. This term is no longer used in the regulations. Many readers confused this term with "closure" and "post-closure." However, since it appeared in the proposed regulations, it was used in the comments and is thus used in this document. "Partial Closure" means the closure of a discrete part of a facility in accordance with the applicable closure requirements of 40 CFR Parts 264, 265, or 266. For example, partial closure ------- may include Che closure of a trench, a unit operation, a landfill cell, or a pit, while other portions of the same facility continue in operation or will be placed in operation in the future. This is a new definition. Several commenters stated that a definition for partial closure was needed. The Agency proposed a definition of "partial closure procedures" but it did not adequately address the meaning of partial closure. It has been deleted from the final regulation. An example of the difference between closure and partial closure would be the case of a secure landfill site where the owner or operator uses the trench method of disposal. The owner or operator may be disposing of waste in several trenches concurrently and may close individual trenches completely satisfying the closure requirements in Subpart G and the technical closure requirements for landfills. However, even though portions of the site are closed, the site is considered to be partially closed until such time as no waste is accepted at the site and the entire site has satisfied Subpart G and the technical landfill closure requirements. The 30 year post- closure care period does not begin to run for any part of a facility until it is completely closed. The concept of partial closure is important because the closure plan (and thus the closure cost estimate and the amount of financial assurance necessary) is based on closing the facility at its maximum extent of operation. As a result, an owner or operator may minimize the amount of financial assurance he needs by partially closing as he completes an area or trench. ------- The following definitions have been removed from the regula- tions: closure, closure procedures, and post-closure care. The Agency has concluded that these definitions added nothing to the meanings of the terms which are obvious from their use in the regula- tions. ------- II. RATIONALE FOR REGULATION A. EPA Authority The first sentence of Section 3004 authorizes EPA to issue treatment, storage, or disposal standards "as may be necessary to protect human health and the environment." These standards must include, but need not be limited to, requirements respecting moni- toring and maintenance of operation (§3004(2),(6)). Section 2002(a)(l) authorizes EPA to promulgate "such regulations as are necessary" to carry out its functions under the Act. As discussed below, and as is shown in the case studies outlined in this document, there is a significant risk that disposal facil- ities could harm human health or the environment after they have ceased operation, even many years after closure. There is also a significant risk that treatment and storage facilities could cause harm if they are not closed properly. EPA therefore feels that closure and post-closure standards are essential to assure that such facilities do not harm human health and the environment. The closure and post-closure standards which EPA has adopted are accordingly authorized by §§2002(a)(1), 3004 (first sentence), 3004(2) and 3004(6). Moreover, the Act defines "disposal" (§1004(3)) to include the placing of hazardous waste into land so that the waste "may enter the environment." Because waste may enter the environment (e.g., by air emissions or leaching to waters) from a disposal facility even after the facility has been closed, any "disposal" standard mandated under ------- §3004 must logically govern the time after a disposal facility is closed. The House Report accompanying the Act states: The overriding concern of the Committee, however, is the effect on the population and the environment of the disposal of discarded hazardous wastes — those which by virtue of their composition or longevity are harmful, toxic or lethal. Unless neutralized or properly managed in their disposal, hazardous wastes prevent a clear danger to the health and safety of the population and to'the quality of the environment. (HR. Rept. 94-1491, 94th Cong., 2nd Sess., 1976, p. 3, emphasis added.) In light of this strong expression of Congressional concern, particularly in relation to the length of time disposed wastes may be dangerous, EPA feels it should issue.regulations which provide adequate closure and post-closure protection. B. Basis for Regulation and Damage Cases EPA believes that closure is extremely important in protecting the public and the environment from contamination by hazardous sub- stances. Even when wastes are disposed of in a manner which appears proper at the time of disposal, failure to close a site properly in and of itself can cause harm. Proper final cover, for example, con- trols and greatly minimizes leaching by reducing the infiltration of liquids. For treatment and storage facilities one aspect of proper closure requires that all hazardous waste must be removed at closure, which also minimizes the threat of contamination from these facili- ties. In the past, proper closure and post-closure care has not usually been carried out, creating at least in part, the human health ------- and environmental impacts discussed later. Most often, the failure to close properly has been the result of poor planning, both finan- cial and technical. Facilities are frequently designed and operated in ways which make adequate closure difficult. Waste inventories (wastes awaiting processing or disposal) are often built to very large levels inconsistent with the owner's or operator's ability to manage them at closure. Such wastes often sit in corroding drums. Storage facilities are often designed to make waste removal difficult and costly. Closure and post-closure care are not cheap. Unless funds are set aside, many firms have been unable to fund adequate closure once revenue receipts stop. This problem is compounded in the facilities which go bankrupt or are otherwise abandoned before scheduled closure. The solution to these problems involves careful planning from the outset of design and operation of the facility. The financial requirements of closure and post-closure care must be planned for ahead of time, when revenues are being received. The financial requirements are being reproposed but will be covered in Subpart H. The amount of financial assurance required will be based on estimates of closure and post-closure costs, which in turn, must be based on a detailed closure plan which lays out how and when the facility will be closed and what post-closure activities will be conducted. This planning should also prevent many of the design and operating mistakes which lead to difficulties accomplishing adequate closure. 8 ------- The Subpart G regulations and this background document cover the general requirements of closure and post-closure care, including the very important planning aspect. The technical requirements are covered in the regulatory subparts dealing with specific technologies (landfills, surface impoundments, etc.). And, as previously mentioned, the financial requirements will be covered in Subpart H. The Agency has documented a number of examples of damage caused by the improper closure and post-closure care of hazardous waste treatment, storage, and disposal facilities. These damage incidents illustrate how human health and the environment may be affected by inadequate closure and post-closure care of hazardous waste treatment, storage, and disposal facilities. In these cases, damage might have been avoided or minimized if the owner or operator had followed proper closure and post-closure care and maintenance procedures. Damage incidents will almost certainly continue to occur unless closure and post-closure regulations are implemented. The Agency believes that regulations requiring planning are necessary. The following are summaries of some of the more graphic cases. • Beginning in the 1920's, a major chemical producer buried chemicals of unknown kind and quantity in a land'fill in Niagara Falls, New York. In 1953, the site owner covered the site with earth and sold it to the Niagara Falls Board of Education. They, in turn, sold a portion of the site to a private developer. In the late 1950's, homes were built directly adjacent to the former landfill site. State officials speculate that a portion of the landfill cover was removed during the 1950"s and that removal of the cover could have contributed to the flow of leachate from the landfill. ------- In August of 1978, the city of Niagara Falls declared a medical emergency after chemicals began infiltrating many homes near the former landfill. Chemical analyses showed that many of these chemicals were known or suspected carcinogens, and observers and residents noticed a high rate of birth defects, miscarriages and other adverse health effects. The State of New York subsequently ordered the evacuation of approximately 280 families in the area and promised to buy the homes of these residents at the fair market values. The cost of this program and of the remedial cleanup efforts may exceed $32 million. Damage claims totaling $2.5 billion have been filed in the case.* This case points out the need for regulations to ensure that the integrity of a facility will be maintained after its closure, and to ensure that subsequent purchasers are informed that the land was used as a hazardous waste disposal facility. It also demonstrates the need for records showing the type and location of the waste disposed of at the facility. Further, if appropriate monitoring had been .conducted after closure, it is likely that contamination would have been detected before the massive human health impacts actually occurred. In June 1973, a major chemical company in Virginia contracted with a processing firm in Alabama to pick up, haul, and dispose of its waste. The processing firm transported approximately 10,000 drums of waste to Alabama where it was stored in two open storage areas and in an enclosed warehouse. Unknown to the generator of the waste, the processing firm did not own a treatment facility and was merely stockpiling waste in anticipation of construction of a waste disposal facility. In October 1973, the processing firm contacted Alabama regulatory officials about plans to construct and operate a hazardous waste management facility. State officials requested that the firm submit engineering plans for the proposed facility. In April 1974, State regulatory officials noticed pollution problems at and around the two open storage areas. As a result of weathering, physical stress, and. the corrosive nature of the waste, many of the drums in the open areas had disintegrated, and their contents were strewn over the ground. State officials restricted additional stockpiling of waste at the site. In April 1975, the processing firm submitted an engineering plan to State officials. State officials rejected the plan as inadequate and ordered the processing firm to submit new plans and post a $250,000 10 ------- performance bond, both in accordance with an implementation schedule, or face legal action by the Alabama Attorney General. The processing firm failed to meet the deadlines of the implementation schedule, and was financially unable to post the performance bond. In February 1976, the waste generator in Virginia became aware of the problem in Alabama, and in April 1976, offered to pay for all costs of repacking, removing, and disposing of the waste in an environmentally acceptable manner. The wastes were removed from the site and disposed of at a cost of $650,000.2 This case points out the need for proper operating and closure planning before any wastes are actually received. It also points out the need for proper inventory control to be certain that all the wastes can adequately be disposed at any time should the need arise. Between 1917 and 1972, several creosote producing firms discharged creosote wastes into a lagoon in St. Louis Park, Minnesota. In 1972, the firms ceased operation after the Minnesota Pollution Control Agency filed complaints against them. The city of St. Louis Park, unaware of the pollution problems at the site, purchased the land from the firms, and signed an agreement freeing them from responsibility for any site cleanup. Contamination of water supplies for the city of St. Louis Park has been traced to the former creosote waste lagoon. Estimates of cleanup vary from $20 to $200 million.^ This case points out the need for regulations that will require that future property owners be notified that hazardous waste is stored on or in the land, and that monitoring of ground water be continued and the results reported for 30 years after closure. A landfill in Hyde Park, New York, used for the disposal of waste from pesticide and organic chemical manufacturing, closed in 1975 after over 20 years of operation. Pollution problems include contamination of ground and surface waters and contamination of soils and sediments around the site and in the surface drainage system to the Niagara River. According to the New York Department of Environmental Conservation, rupture of a protective berm at the facility, malfunction of the leachate collection system and the transport of pollutants from the site via the surface 11 ------- drainage system during the post-closure period aggravated these problems. Cleanup cost for the site may exceed $57 million.^ This case points out the need for regulations which will require adequate closure and post-closure procedures in order to prevent environmental damage from an inactive site. Specifically, it shows the need for maintaining a site following closure. In Lowell, Massachusetts, a chemical waste facility operated from 1971 to 1978. The corporation owning the facility de- clared bankruptcy in 1978 leaving an on-site inventory of 30,000 drums of chemical waste in storage. Waste seepage from deteriorating drums has contaminated soil at and around the facility and has threatened ground-water supplies. Run- off of waste via surface drainage has contaminated adjacent properties and has threatened surface waters in the area. Air quality on and near the site has deteriorated to the point that visitors must use organic vapor respirators due to the presence of volatile substances. Also, fire and ex- plosions threaten public health and welfare. The State of Massachusetts and EPA are currently involved in cleaning up the facility. This case illustrates the need for adequate closure plans which help ensure that all waste will be removed from a storage facility at closure.•* Since 1867, asbestos product manufacturers have accumulated nearly 2 million cubic yards of assorted industrial wastes in open piles in a small Pennsylvania town. The original generator of the wastes went out of business in 1962. Since then, two other companies have enlarged the spoils piles. Because of wind erosion, the atmosphere around the piles contained asbestos fibers. An air monitoring program EPA conducted in October 1973 indicated ambient background levels of asbestos to be 6 ng/m^. State officials found an asbestos level of 9.6 ng/nr* at a playground near the largest waste pile. Values obtained near active disposal piles ranged from 114 to 1745 ng/nP. A high pH level in a nearby stream has resulted from runoff from the piles.6 This case points out the need for regulations which will ensure proper closure by facility owners or operators. Specifically, it shows why closure plans for storage facilities must show how the owners or operators intend to dispose of the waste at closure. 12 ------- C. State Precedents A number of States regulate the closure and post-closure activi- ties of facilities in their jurisdiction in order to protect public health and the environment. Many of these States require closure plans. In developing its regulations, EPA utilized a number of the State's ideas and regulatory approaches. The following are summaries of the closure and post-closure regulations of several States: • Wisconsin requires all facility owners or operators to submit an operation plan for a proposed facility. This plan must include details on development, operation and final closure. Long-term care provisions are an intregal component of the plan. Long-term care may include routine maintenance, mon- itoring of ground water, collection and disposal of gas and leachate, and erosion control. Site owners are required to care for a site for 30 years after the site stops accepting waste for disposal, although the owner may opt for a 20-year period of responsibility in exchange for paying higher fees to a State Waste Management Fund. A site owner may apply to the Wisconsin Department of Natural Resources (DNR) to ter- minate long-term care responsibilities 10 years after a site has stopped accepting waste. If DNR denies the application, the owner or operator may renew the request at 5-year inter- vals. After the owner's responsibility for long-term care terminates, the State Waste Management Fund is used to pay the cost of any additional long-term care required.' • Minnesota requires facility owners or operators to submit a closure plan before closure. The hazardous waste regulations specify owner's or operator's duties and responsibilities during closure and post-closure periods (i.e., maintain liner and cover, control surface drainage, maintain ground-water monitoring system, etc.). Facility owners or operators must provide long-term care for as long as hazardous waste within a site poses a threat to the environment, unless the State of Minnesota or the United States agrees to assume responsibi- lity for long-term maintenance, monitoring and surveil- lance.8 • Kansas requires facility owners or operators to submit a closure and post-closure plan. The hazardous waste 13 ------- regulations specify owner or operator closure and post- closure duties and responsibilities. Owners or operators ara responsible for long-term care of a site for ten years after closure. The State may, however, extend the care period as necessary to protect the public health and safety of the en- vironment. A 1979 amendment set up a State-wide fund that would pay for additional care and/or monitoring at a site after the owner's or operator's responsibility has ended or for costs of repairing a site or repairing environmental dam- age caused by a site as a result of a post-closure occurrence not anticipated in the plan of operation.^ Oregon requires facility owners to deed disposal sites over to the State upon completion of disposal operations. .In ad- dition, the owner is required to carry a cash bond in the name of the State which will cover closure and post-closure monitoring and maintenance costs.10 14 ------- III. ANALYSIS OF CLOSURE AND POST-CLOSURE COMMENTS, AND REGULATORY SYNOPSES AND RATIONALE This section of the background document synopsizes the closure and post-closure regulation, by subsection, as proposed on December 18, 1978, together with the rationale for each subsection. The pub- lic comments for each subsection are then presented. Next, analysis of and response to these comments is provided along with the rationale for the interim status regulations. Finally, this document presents a synopsis of the interim status regulation. Before this section-by-section discussion, however, it is necessary to address the general question of whether closure and post-closure regulations should apply to on-site facilities. A gen- eral comment received on these regulations said that closure and post-closure rules should apply, and indeed Congress meant them to apply, only to facilities which offer hazardous waste treatment, storage or disposal services to others ("off-site" facilities). Common sense, however, dictates that closure and post-closure standards should apply to on-site, as well as off-site, facilities. At present, approximately 80 percent of all hazardous waste is dis- posed of on-site, and there is no reason to assume that post-closure damage from on-site facilities cannot represent just as grave a risk as damage from off-site facilities.^ Thus, if EPA is to protect human health and the environment under this Act, it must regulate the closure and post-closure of on-site facilities as well as off-site 15 ------- facilities. Furthermore, the Agency finds no Language in the Act or in the Legislative history to serve as a basis for a distinction between on-site and off-sice facilities. CLOSURE PERFORMANCE STANDARDS Synopsis of Proposed ReguLation and Rationale As proposed, the regulation, §250.43-7(i) required that after closure all facilities be secured to prevent human and animal life from contacting the waste. It further banned discharges harmful to the environment or human health. EPA felt that these provisions provided a broad operationaL definition of cLosure. Comments, Analysis, and Response Several commenters stated that the requirement was too broad. Insects, moles, and worms are animal life, and it would be virtually impossible to keep them from contact with hazardous waste. Some of these commenters suggested EPA delete the requirement; others sug- gested that it only proscribe humans from contact with hazardous waste; and others suggested that it proscribe contact for only highe: forms of animal life as well as humans. Another commenter said that neither this section nor any other section adequately described the objective of closure. It suggested that this subsection be deleted and that the subsection on cLosure pLans be rewritten to state objectives in terms of performance. 16 ------- The Agency has concluded that this entire paragraph was overly broad, vague, and redundant. The Agency has adopted specific re- quirements in this section and in the technical sections (landfill, tanks, etc.) to ensure what this paragraph broadly required. Thus, the Agency deleted this paragraph, and wrote a new, more descriptive paragraph on closure objectives (§265.111). Other commenters stated that this paragraph should apply only to disposal sites, where waste remains following closure. EPA deleted the paragraph and thus the comment is no longer relevent. The com- ment illustrates, however, a common misunderstanding of the proposed regulations. Many commenters did not understand that post-closure requirements pertained only to disposal facilities, while closure requirements pertain to all facilities. The final regulations make this point explicitly. One comment on the definition of "active portion" stated that people disposing of utility wastes in strip mines should meet the Office of Surface Mining closure regulations instead of the RCRA requirements. EPA has deferred regulation of the disposal of coal mining wastes, if hazardous, to the Office of Surface Mining. However, the disposal of other hazardous mining wastes or of other hazardous wastes (non-mining) in strip mines has not been deferred. Thus, these wastes, unless exempted elsewhere in the Part 260 or 261 regulations, are subject to the full RCRA requirements, including 17 ------- those for closure and post-closure. The Office of Surface Mining regulations were written to address coal mining wastes. The Agency has no justification to defer regulation of other hazardous wastes to regulations written specifically for coal mining wastes. The defer- ral of hazardous coal mining waste is temporary, pending agreement between EPA and the Office of Surface Mining, that OSM's regulations provide equivalent control to the RCRA program and thus the RCRA mandate is met. Synopsis of the Interim Status Regulations (§2'65.111) The performance standard requires that the facility be closed so that the potential for the facility to pollute the environment or threaten human health is controlled, minimized, or eliminated. This is the primary purpose for adequately closing a facility. Second- arily, it requires that it be closed in such a way as to minimize the need for future maintenance, e.g., from erosion. CLOSURE AND POST-CLOSURE PLANS Synopsis of Proposed Regulation The proposed regulations, §250.43-7(c), required owners or operators of treatment, storage, and disposal facilities to submit closure plans to EPA. The plans were to state (1) how the facility would be closed, (2) a description of possible uses of the land after closure, and (3) anticipated site life and schedules for final closure, and partial closures. 18 ------- Rationale for the.Proposed Regulation EPA believes that closure is extremely important in protecting the public and the environment from contamination by hazardous sub- stances. As previously discussed, the Agency believes that advance planning is necessary to ensure that adequate preparations and re- sources are on hand to accomplish closure properly. Therefore, the preparation of closure and post-closure plans is required. Comments, Response, and Rationale for Final Regulation One concern was that complying with the proposed regulation re- quired a crystal ball, since waste streams, technology, and site operation would surely change during the life of a site, and these changes would affect closure requirements. One commenter suggested that EPA should allow for amendments to closure plans to account for the possibility of change. Another suggested EPA should require from owners or operators semi-annual updates and comparisons of estimates to actual use. EPA agrees that the proposed regulation required precognition far exceeding that usually demanded of a regulated community. Faci- lities will probably change the wastes they accept, adding some and dropping others. (Adding wastes will require modifications of the permit.) Methods of operations might also change, as will technolo- gies. Such changes will require changes in the closure plan, and the final regulations allow for revisions of the closure plan. EPA, however, does not agree that a facility should conduct semi-annual 19 ------- updates or comparisons of actual to projected facility usage. The Agency sees no benefit from requiring amendments at set intervals. The plan should be amended whenever operating conditions or long-term plans change. Another general area of comment concerned the applicability of the regulations. One commenter stated that closure plans should be necessary only for facilities where hazardous waste remains after closure. Another commenter said that EPA should distinguish between the operation of a processing facility and a permanent landfill. EPA believes that closure plans must apply to treatment and storage facilities, as well as disposal facilities. Both the Lowell, Massachusetts, damage case5 and common sense show that proper closure for a treatment or storage facility is just as necessary as it is for a disposal facility. If treatment and storage facilities, during closure, do not properly dispose of on-hand waste inventories and residues and decontaminate equipment, they can clearly endanger public health and the environment.^ An EPA approved closure plan will increase the probability of an adequate closure. On the question of the applicability of the proposed regula- tions, EPA intended that while closure plans should apply to treat- ment and storage facilities as well as to disposal facilities, post-closure requirements should apply only to disposal facilities. The language of the final regulations makes this clear. If hazardous waste is removed during closure, as is required for treatment and 20 ------- storage facilities, there is no reason to submit post-closure plans for these facilities or to monitor and maintain them. By definition, since no hazardous waste remains and the area is decontaminated during closure, there is no potential for post-closure difficulties. A third area of comment said that the closure requirement does not adequately state the objective of the closure requirements. The commenter provided specific language to describe the objective. On reviewing the proposed regulation, EPA agrees that the objec- tive of closure is not adequately addressed. The final regulations borrowed much suggested language from this comment, and revised §265.111 now furnishes an operational definition of closure. Basi- cally, the objective is to cause facilities to close so as to con- trol, minimize, or eliminate the escape of pollutants to the extent necessary to protect human health and the environment as well as to minimize the need for maintenance activities to ensure that waste is isolated. Another comment was that the regulatory closure requirements should be used as a guide in reviewing permit applications, and that closure and post-closure requirements should be specified in facility permits. The Agency believes that the proposed regulations contained these provisions and will probably incorporate the same requirements in the general status regulations. Each site is responsible for developing and maintaining a closure plan, and disposal facilities must develop post-closure plans. It is intended that these will be evaluated by EPA on a site-by-site basis. When approved, the closure 21 ------- plans will likely then become part of the permit conditions. When closure is completed each faciiicy must submit a certification by both a registered professional engineer and the owner or operator that the site was closed in accordance with the plan. There is a great deal of flexibility in this approach, in that the closure and post-closure plans are developed on a facility-specific basis. Another commenter noted that closure and post-closure require- ments should reflect segmented operations. EPA intended that the proposed regulation do so and has revised the regulations. The final regulation (§265,112(a)) states that a closure plan "must identify the maximum extent of the operation which will be unclosed during the life of the facility." Furthermore, the same section says a plan must include "a description of how and when the facility will be partially closed, if applicable . . . ." A commenter noted that closure plans should be submitted to State closure authorities and local authorities, as well as to EPA. EPA sees no need to require that a closure plan be submitted to State closure authorities and local authorities. Any State that wishes to receive the closure plan may require this under State law. Simi- larily, local authorities who want to receive plans can require submission under local law. The Agency sees no reason to require that plans be sent to them. Furthermore, EPA is willing to provide the plans to any State or local authority who requests them. 22 ------- Finally, one commenter suggested that the closure plan should include information on post-closure security for the facility. The Agency disagrees. The Agency intends for the technical closure requirements for surface impoundments, land treatment facilities, and landfills to ensure that no hazard would befall an unknowing intruder to a closed site, unless that intruder tried to dig through the cap—a possibility the Agency thinks remote. In fact, the Agency hopes that completed sites will be opened to the public for use as parks and other recreational uses. Synopsis of Interim Status Standards (§265.112) In interim status, in accordance with §265.111, all facilities must be closed to (1) minimize further maintenance and (2) control, minimize, or eliminate the discharge of wastes, constituents, leach- ate, contaminated rainfall or waste decomposition products to the environment to the extent necessary to protect human health and the environment. In interim status, owners or operators must develop closure plans. The plans must include (1) descriptions of how the facilities will meet technical closure requirements, (2) maximum waste inventor- ies during site life, (3) an identification of steps for decontami- nating equipment during closure, and (4) a schedule for closure show- ing the anticipated date of final closure and intervening milestones to allow tracking progress. In interim status, this closure plan must be developed, but need not be submitted to EPA until 180 days 23 ------- before the owner or operator anticipates beginning closure; then, within 90 days, EPA will either approve or modify the plan. It is anticipated that during general status, the closure plans will be submitted along with the Part B permit application. The Regional Administrator will approve or modify the plans, and the plan will be incorporated into the conditions of the permit. The owner or operator may modify or amend his closure plan. He must modify his plan if changes in operating conditions or facility design would affect closure. In interim status, the owner or operator need only modify the plan; during general status it is anticipated that the owner or operator will submit each amended closure plan to the Regional Administrator for approval. Post-closure requirements apply only to disposal facilities. Post-closure care consists of at least (1) monitoring and reporting, and (2) maintaining monitoring and waste containment systems. In interim status the owner or operator of a disposal facility must develop a post-closure plan. The plan must include (1) monitoring activities and frequencies, and (2) maintenance activities and frequencies relating to the cap and final cover, or other con- tainment systems, and, .where applicable, to the monitoring equip- ment. In interim status, the owner or operator must develop this plan and maintain it on the premises, but he need not submit it to EPA until 180 days before he anticipates beginning closure. The Regional Administrator will approve or modify the plan within 90 days. During general status, the Agency intends to require that 24 ------- owners or operators submit this plan to the Regional Administrator along with Part B of the permit application. The Regional Admin- istrator would then approve or modify the post-closure plan. Once approved, the plan would be incorporated into the permit conditions. Owners or operators may amend post-closure plans. EPA requires amendments if changes in operating plans or facility designs would affect post-closure plans. During interim status amendments need not be submitted to EPA. During general status the Agency anticipates that the owner or operator will be required to submit each amendment to the Regional Administrator for approval. CLOSE-OUT REQUIREMENTS Synopsis of Proposed Regulations and Rationale According to the proposed regulation, §250.43-7(f), all haz- ardous waste was to be removed from storage and treatment and properly disposed of within 90 days after close-out. All disposal operations were also to be finished in that time. EPA required that wastes be removed and properly disposed of quickly, because it fe1 ". that after close-out, facilities are particularly susceptible to problems. Management tends to lose interest in a facility that no longer generates revenues, and may substantially reduce the staff. Having untreated or undisposed waste in an ir-ctive facility presents an unnecessary hazard. Furthermore, closure cannot begin until the owner or operator removes the inventory, and the Agency wants closure to be completed and the site secured as soon as possible. 25 ------- Comments, Analysis, and Response One commenter said that after 30 days, waste should be contained to ensure environmental protection. Another commenter said that al- lowing 90 days after close-out for disposing of inventory and remov- ing inventory allows inadequate time to remove and dispose of wastes from storage and treatment facilities. EPA thinks that 90 days is adequate time. EPA feels that a well-run operation should have little trouble meeting chis require- ment, since an owner or operator should not wait until the facility receives the final volume of waste to locate disposal sites or to dispose of the waste inventory. Furthermore, EPA sees no reason why it should be necessary to keep waste inventories above a 90-day supply. If this is necessary, then the facility should plan to cease operations in a way that allows it to work off its inventory. Finally, the final regulations require the closure plan to include the estimate of the time that will be required to dispose of inven- tories. Owners or operators must dispose of inventories within this time, or be in violation of their permit. Synopsis of Interim Status Regulations (§265.113(a)) The final regulation is the same as the proposed regulation, ex- cept that the words "close-out" have been replaced. EPA no longer uses these words in the final regulations, since they confused many readers. 26 ------- In the Interim Status Standards, an owner or operator must dis- pose of (on- or off-site) or treat all wastes in storage or in pro- cess within 90 days after the facility receives its final shipment of waste. TIME ALLOWED FOR CLOSURE Synopsis of Proposed Regulation and Rationale The proposed regulation, §250.43-7(g) , required that closure be completed within three years of close-out. EPA picked a three year maximum because it felt that any facility could be successfully closed in this time period. Comments, Analysis, Response, and Rationale for Final Regulation Some commenters thought a three year period was too short, and others thought it was too long. Other commenters noted that the length of time necessary for closure will depend on the size and type of facility. EPA concurs with this last view. It should certainly take longer to close a large surface impoundment where dewatering is part of the closure procedure than it will to close a small storage facility. While the proposed regulation permitted closure to take up to three years, in most cases it should take less time. The final regulation reflects this. In the final regulation closure must be completed within six months, unless the owner or operator can demonstrate that closure cannot be completed within this time span, and that the inactive but unclosed facility represents no threat to 27 ------- public health and the environment. If the owner or operator makes such a demonstration, the Regional Administrator may allow a longer period of time for closure. EPA feels the flexibility of this provision is a reasonable solution to the problem. Another commenter stated that closure should be performed in ac- cordance with the closure plan. EPA agrees. This was the intention of the proposed regulations. EPA requires closure plans, and con- siders them instrumental to an adequate closure. This requirement is explicit in the final regulations. Finally, commenters said that if a site were abandoned before the end of the three year closure period, the Regional Administrator would be unable to reach the closure fund monies until the end of the three year period. These commenters suggested that EPA should speci- fically state that closure should be completed within the time speci- fied in the approved closure plan. This was intended in the proposed regulation and is clarified in these regulations. At any point in the closure schedule that there is a default, the Regional Adminis- *rator could resort to the financial assurance instruments (trust fund, bond, etc.) to ensure closure. These requirements are being reproposed. The Regional Administrator could also bring suit to compel the owner or operator to perform. It is not necessary for the Agency to wait until the end of the allowable closure period to declare the owner or operator to be in default. 28 ------- Synopsis of Interim Status Regulations (§265.113(b)) In the interim status regulations, the owner or operator must follow the approved plan, and ordinarily close within six months of the final shipment of waste. The Regional Administrator may allow a longer closure period if the owner or operator can show that it will take longer than six months to close the facility and that the longer period poses no threat to human health or the environment. DISPOSAL OR DECONTAMINATION OF EQUIPMENT Synopsis of the Proposed Regulation and Rationale The proposed regulation, §250.43-7(h), required operating equip- ment to be decontaminated or disposed of as part of closure. This was required so that contaminated equipment would not be allowed to stand idle and accessible. EPA hazardous waste regulations require Section 3004 practices for Section 3001 wastes because they are potentially hazardous. It makes little sense to mandate treatment for the waste, and not remove the residues from the treatment and disposal equipment when they are no longer used. Comments and Response The commenter on this subsection stated that the regulation and the Preamble were inconsistent. The regulation said that equipment must be disposed of or decontaminated, while the Preamble said dis- mantled and decontaminated. EPA agrees that dismantling is expensive and unnecessary. The final Preamble is consistent with the reg- ulations . 29 ------- Synopsis of Interim Status Regulations (§265.114) The interim status regulations require that facility equipment be properly disposed of or decontaminated by removing hazardous wastes and residues during closure. CLOSE-OUT AND CLOSURE NOTIFICATION Synopsis of Proposed Regulations and Rationale The proposed regulations, §250.43-7(d) and (e), required facili- ties to notify EPA 15 days before partial closure or close-out. Owners or operators of facilities other than landfills were required to notify EPA of the expected date of completion of closure at least 90 days before it was completed and landfill operators 180 days before completion. EPA required these notifications because of the extreme impor- tance of closure to the safety of the site. For example, notifying EPA of closure would allow EPA to inspect landfills before they were covered with liners and clay, and thus enable the facility to rectify any improper or incomplete procedures. Comments and Response Several commenters stated that EPA need not be notified before closure. EPA disagrees, because proper closure is extremely impor- tant to minimize future environmental problems; the Regional Adminis- trator should be able to inspect the site before and during closure. If he is notified following closure, there is little he can do to assure proper closure. Furthermore, notification should precede 30 ------- closure so that EPA can expedite the release of the closure trust funds or other financial requirements. EPA has concluded that it is not necessary to require, in the Interim Status Standards, that owners or operators notify EPA before they anticipate completing closure. Since the owner or operator must tender his closure plan for approval just prior to closing anyway, the receipt of the plan will provide adequate notice to the Agency during interim status. One commenter said that disposers, treaters, and storers should be required to notify the generators they serve six months in advance of close-out, in order to give generators time to find alternatives. EPA does not agree that this should be required as a matter of Federal law. If generators need this lead time to find alternatives, they can include this, lead time in the contracts they sign with haz- ardous waste facilities. CLOSURE AND POST-CLOSURE CERTIFICATION Synopsis of Regulations and Rationale The proposed regulations, §250.43-7(k), required the owner or operator of a hazardous waste facility to submit certification by a registered professional engineer to the Regional Administrator that the site was closed in accordance with the closure regulations. For landfills and other facilities where hazardous waste is not removed during closure, EPA also required certification after the post- closure period. 31 ------- EPA required that an engineer certify closure to help ensure that closure complied with the closure regulations. Closure and post-closure certification were to serve as the trigger mechanisms for the release of closure and post-closure trust funds. They were therefore instrumental in the financial requirements. Comments, Response and Rationale One commenter suggested that certification after post-closure was unnecessary. EPA agrees, and has deleted the requirement for post-closure certification. EPA feels that any advantage gained by requiring post-closure certification is overshadowed by the paper- work. Furthermore, since the post-closure regulations require moni- toring and routine maintenance, EPA should know if a site is not properly closed at the end of the period, and could take whatever action might be appropriate. Another commenter stated that the regulation should also require certification of closure in accordance with the closure plans. This was the intent of the proposed regulation; EPA has made this require- ment explicit in the final regulations. Another commenter said that certification should also be submit- ted to the State closure authority as well as to EPA. EPA sees no reason to compel this activity, since such States who wish to receive certification can require this under their own authority. Finally, one commenter said that it is hard to determine the overall scope the professional certification would need to address. 32 ------- Since the time period for closure can be lengthy, and since the cer- tifier would likely have little first-hand knowledge of previous operations, certification would require a long investigation by the engineer. EPA does not agree with these conclusions. In the final regula- tion, the engineer must certify closure in accordance with the regu- lation and.permit conditions. To do so, the engineer need not be present at the site for the entire closure period, nor must he be intimately familiar with prior operating practices. He must only inspect closure plans and procedures and be satisfied that the clo- sure was performed according to these plans. This would require a final inspection, and might require several interim inspections during closure to make sure work is proceeding according to plan. The Agency made one additional change to this section which re- quires that the registered professional engineer be independent of the owner or operator; that is to say that he not be in the direct employ (on the payroll) of the owner or operator. The Agency real- izes that some owners or operators have registered professional en- gineers on their staffs. And in cases where there is doubt, their objectivity may be unconsciously colored by their loyalty to their employer. Since the Agency is relying to a fair extent.on this certification for assurance that closure has been conducted properly, it seems prudent to ensure his objectivity in so far as is practical. The Agency believes that this change will impact primarily the larger 33 ------- companies who are the ones most likely to have registered profes- sional engineers on their staff. Smaller firms, in most cases, would have had to contract with a registered professional engineer in any case. Synopsis of Interim Status Standards (§265.115) After closure, the owner or operator and an independent regis- tered professional engineer must certify that the facility has been closed in accordance with the closure plan. The owner or operator must submit these certifications to the Regional Administrator. NOTIFICATION TO NEW OWNER OR OPERATOR Synopsis of Proposed Regulations and Rationale If a new owner or operator acquires a facility during the post- closure period, subsection §250.437(o) required the new owner or operator to comply with the closure and post-closure regulations. This provision prevented closure and post-closure requirements from being circumvented by property transfers. If closure and post- closure requirements could be circumvented by a property trans- fer, many closed sites would be transferred to avoid both the expense and work required by the regulation. Comments, Response, and Rationale for Final Regulation One commenter pointed out that the proposed regulations read, in part, "If the owner/operator of a facility transfers the ownership . . . ." He pointed out that operators have no authority to transfer 34 ------- ownership. EPA concurs, and has reworded the regulation so that it covers operators who might transfer their interest, for example, through transfer of a leasehold. The Agency has also added the requirement that the owner or operator of a facility notify the new owner or operator, in writing, of the post-closure requirements. This was done to ensure that the new owner is aware of the responsibilities he is assuming, so there would be no interruption in carrying out these responsibilities. The requirement has been relocated to §265.12(b), Required Notice, under the General Facility Standards. Another commenter said that the 20 year post-closure period should track with the amount of time required for post-closure care. The Agency agrees. Thus, if the property is sold after 10 years of post-closure care, the new owner need provide only an additional 20 years to cover the now required total of 30 years. If ownership is transferred after 30 years, the new owner or operator need only comply with §265.117(c) of the final regulation, unless the Regional Administrator has determined that a post-closure period longer than 30 years is required. This section (265.117(c)) limits post-closure uses to those that do not disturb the site except with the Agency's approval. Synopsis of Interim Status Regulations (§265.12(b)) During interim status, prior to transfer of ownership or opera- tion, an owner or operator must notify in writing a new owner or operator of the requirements of post-closure care. 35 ------- POST-CLOSURE CARE Synopsis of Proposed Regulations and Rationale The proposed regulations, §250.43-7(n), required post-closure care. This consisted of monitoring and reporting, and maintaining facility security and waste containment devices. The rationale for post-closure care is discussed in the previous two sections. Comments, Analysis, and Response Many commenters said that special wastes, as defined in the pro- posed regulations, should be exempt from post-closure requirements. These commenters claimed that the special wastes are inert, and that special wastes might be deemed non-hazardous pending further study. For reasons indicated in the Preamble discussion of "Special Wastes"; the "special wastes" category is being deleted from the final regula- tions. All wastes, if hazardous under Part 261 if land disposed, must be managed in accordance with these post-closure care require- ments . Another commenter said that this paragraph could be interpreted to require a watchman for 20 years as a part of post-closure secur- ity. A variation to this theme suggested that EPA's regulations should be more specific and require, for example, fences or guards in the post-closure period. A third comment on the post-closure security theme said that "potential use of the site would be severely restricted if all security devices must be maintained post-closure as 36 ------- per this subpart." The commenter suggested "allowing security de- vices to be discontinued after closure of the site if approved by the Regional Administrator for compatibility with future site usage." EPA agrees that potential use of the site would be restricted if security had to be maintained following post-closure. As previously discussed, the specific technical closure requirements should ade- quately protect the public even where access is openly allowed. Thus, control of access is not normally needed after closure. There- fore, the Agency has modified the regulation to require security pro- visions only when the Regional Administrator determines that casual access by an uninformed public could subject them to a significant health risk or where the wastes remain exposed after closure. Synopsis of Interim Status Regulation (§265.117(a)(b)) During interim status, owners or operators must provide post-closure care. This care consists of (1) monitoring and report- ing and (2) maintaining monitoring and waste containment systems. Maintenance of security systems is at the discretion of the Regional Administrator. EQUIPMENT AND PROVISIONS FOR POST-CLOSURE GROUND-WATER MONITORING Synopsis of Regulation and Rationale This subsection, §250.43-7(j), required that monitoring equip- ment and arrangements for post-closure monitoring be available at the completion of closure. EPA originally felt this was necessary to en- sure that monitoring could begin without delay. 37 ------- Comments, Analysis, and Response One commenter, who suggested that perpetual monitoring was necessary for facilities, suggested that this subsection be modified to reflect a perpeptual monitoring period. This background document discusses the length of the post-closure period later. However, in considering this comment, the Agency has concluded that this para- graph is redundant. In the proposed regulation, paragraph (n) requires post-closure monitoring. In the final interim status regulations, §265.117(a)(1) requires post-closure monitoring. The Agency does not feel it necessary to explicitly require equipment and arrangements, in an additional paragraph, as these requirements are clearly mandated in §265.117(a)(1). Further, facilities are required to conduct much the same monitoring during site life as during post-closure. Thus the equipment will already be in place. POST-CLOSURE PERIOD AND EFFECTIVENESS AND APPROACH TO POST-CLOSURE REGULATION Synopsis of Proposed Regulation The proposed regulation, §250.4°-7(m), required 20 years of post-closure monitoring and maintenance for landfills and all other facilities where hazardous waste remained after closure. A note (variance) to this paragraph permitted the Regional Administrator to shorten the time period if the owner or operator could demonstrate that the 20-year period was unnecessary. 38 ------- Rationale for the Proposed Regulation The Agency selected a 20-year period for post-closure monitoring and maintenance for both practical and technical reasons. The choice of an appropriate post-closure care period is a decision which, of necessity, depends on the Agency's philosophy and strategy relative to control of ground-water pollution from land disposal facilities. Initially, the Agency decided that the appropriate approach would be to set ambient limits on pollutants in the ground water. Then, modeling wastes movement through the soil could predict whether leaching from a landfill of given design containing specific wastes would exceed these limits. Design and permitting could then be based on these calculations. A study performed in 1976 and 1977 showed that the modeling, particularly of the unsaturated soil regime, was not sufficiently advanced to enable the EPA to use this ap- proach. 12 Since predicting pollutant migration was not yet practical, the Agency concluded that the.next best control strategy would be to max- imize containment, limiting the release rate of contaminants to neg- ligible levels. In the proposed regulations, §250.45-2, the Agency developed several landfill design alternatives which it believed theoretically provided more than 100 years of containment before release to the soil regime of any contaminants. The Agency further believed that once contaminants did escape, the release rate to the ground water would be so low that dilution would be adequate to pre- vent buildup of measurable concentrations.^ 39 ------- Based on these theoretical designs, the Agency determined two needs or reasons for Long-term monitoring: (1) to determine the sufficiency of the designs, i.e., whether they in fact would prove as protective as the Agency be- lieved, and (2) to ensure that no construction or operating errors were made which could cause measurable release of pollutants. Examples of errors include tearing of liners or caps and disposing of wastes which are incompatible with the con- tainment system. To satisfy the first need, one would prefer monitoring ad infinitum or at least for more than 100 years. The second need could presuma- bly be satisfied in a much shorter period. As a practical matter monitoring and care could not be carried out for extended periods, particularly by the smaller private oper- ations. Once revenues cease at closure, there is often no source of funds to discharge post-closure responsibilities. Many of these firms simply cease to exist. The Agency also found it economically impractical to require these facilities to put away sufficient funds during the operating life of the site so that interest on the princi- pal would be sufficient to cover annual monitoring and maintenance expenses for extended periods after closure. Even to assure funds sufficient to cover post-closure responsibilities for 50 years re- quires accumulation of principals so large as to be impractical in the Agency's view. Thus, the Agency concluded that 20 years was about the maximum post-closure care period which could be ensured by the financial responsibility requirements. (See the background docu- ment on financial responsibility for a further discussion.) 40 ------- The choice of 20 years as the post-closure monitoring period also satisfies the second need or reason for this monitoring. The proposed ground-water and leachate monitoring requirements (§250.43- 8(b)) called for installing a leachate monitoring system as an early warning safeguard within the zone of aeration (unsaturated zone) directly under the landfill or surface impoundment. The Agency believed that if the containment system had been breached during operation or closure, then pollutants would have been detected in the leachate monitoring system well within the 20-year period. Thus, while not completely satisfying the Agency's desires for complete certainty, 20 years was proposed as the maximum practical post- closure monitoring period. Comments, Analysis, and Response on the Length of the Post-Closure Care Period The length of the post-closure period was the major issue eliciting comment in this section of the regulations. Many commen- ters thought the 20-year period was too short; others thought it was too long. Some thought that the period should be linked to the con- tents of the disposal facility, while others felt that the post- closure period should be linked to performance standards. One group of commenters suggested that the post-closure period for disposal facilities should continue perpetually. They pointed out that some wastes, like heavy metals, are toxic forever, while others, like some organics, break down or detoxify very slowly, if at all. Since the contents of the disposal facility may be hazardous 41 ------- forever, these commenters argue that the site must be monitored and maintained forever. Most commenters of this persuasion thought the owner or operator of the facility should be the responsible party. One commenter, however, suggested that at the end of the 20 year period, a State authority could assume responsibility and liability for the site. Another group of commenters, although not arguing for perpetual care, suggested that the 20 year period of post-closure care is too short. Again the argument was raised that many wastes are toxic for more than 20 years. One commenter in this group pointed out that "Dioxin with a supposed half life of one to two years was in the leachate from the Love Canal area." Another said that "evidence has shown that the greatest hazard occurs after the 20 year proposed limit. One supporting example occurred in Perham, Minnesota, when arsenic which had been buried for over 30 years leached into a nearby well. Several individuals who had consumed the contaminated water were hospitalized." Some commenters indicated technical reasons why they believe containment systems will fail over time. One said, "Even the best surface water diversion structures deteriorate with time . . . the same is true for leachate collection systems and liners." Another commenter said that "A recent report we have indicates that the syn- thetic liners have a maximum life of 25 to 30 years." 42 ------- Other commenters advanced additional reasons for lengthening the post-closure period past 20 years. One commenter pointed out that lengthening the time period from 20 years should induce more technol- ogy changes in the containment and treatment areas. Another commen- ter pointed out that generators and operators will make sites secure only for the period of time during which they are responsible. That being the case, longer is better. Another group of commenters argued that the 20-year period was adequate. They argued that if no problems occur in the 20-year post- closure period, "the site can reasonably be considered secure and in need of no future monitoring." Many of these commenters also felt that EPA should permit a shorter post-closure period, if the owner or operator could demonstrate continued post-closure care unnecessary. Others thought that 20 years should be the maximum period, and less time should be permitted if the owner or operator "can demonstrate that less time is sufficient and there is no pending danger to the public." Finally, some commenters thought that the 20 year period was generally too long. One argued that the post-closure period could even result in less environmental protection since "lengthy post- closure work may simply force closure of many otherwise acceptable sites and thus defeat the intent of better hazardous waste manage- ment." Another said that "some types of waste are not subject to leakage and would not require a 20 year monitoring period after site closure." One commenter felt that the Agency should adopt a 10 year 43 ------- monitoring and maintenance period to be consistent with the Depart- ment of the Interior Office of Surface Mining's 10 year requirement for strip mines. Several commenters thought the post-closure period should depend on a variable other than elapsed time. One argued that "if we must insist on burial then there is no alternative to the monitoring of the site for the lifetime of the longest lasting component." An- other commenter phrased it slightly differently: "EPA should require the post-closure care specified in §250.43-7(n) for as long as the site contains hazardous materials." Another commenter thought that "The post-closure care period should be governed by performance criteria as well as minimum time standards." As a result of the extensive comment, the Agency has reevaluated the post-closure care issue, and has decided to extend the post- closure period from 20 to 30 years. EPA believes that its decision to delete the proposed leachate monitoring requirements makes it necessary to monitor ground water for a longer period of time, and that further analysis of financial requirements, as well as proposed changes in these regulations, makes it practical to do so. Public comment persuaded EPA.(see background document on ground- water monitoring) that existing leachate monitoring techniques are impractical except at land treatment facilities. Thus, EPA has deleted the leachate monitoring requirements for landfills and surface impoundments. EPA had believed that leachate monitoring 44 ------- systems would act as early warning systems. Since it will take longer for contamination migration to reach ground-water monitoring points than it would have taken to reach leachate detection moni- toring points, it is necessary to monitor for a longer period. EPA is now convinced that it is economically practical to moni- tor and maintain closed disposal facilities for 30 years. Because EPA no longer requires leachate and air monitoring, owners or opera- tors need not provide the money for these activities. In the pro- posed regulation, leachate monitoring represented 14% and air moni- toring 57% of the cost of post-closure monitoring. Further- more, proposed changes in the financial regulations will make all financial requirements less costly. In the proposed regulations, EPA required owners or operators of disposal facilities to establish trust funds for both closure and post-closure. The Agency is now / proposing that owners or operators satisfy closure and post-closure responsibilities through one of a number of financial mechanisms, many of which are substantially less expensive than trust funds. [For a complete description of the proposed financial mechanisms, see the proposal section of this Federal Register and the background document on financial responsibility.] Also, in these proposed financial regulations for interim status, owners or operators may build closure trust funds during the expected site life, rather than by advancing all the money initially. This alternative will make trust funds less expensive. As a result, EPA is convinced that 45 ------- owners or operators will be able to maintain and monitor disposal sites for 30 years. However, because of the uncertainty caused by the lack of ex- tensive experience with properly designed disposal operations, the Agency does not feel comfortable with an unalterable national rule. The Interim Status Standards permit EPA to shorten or lengthen the 30-year post-closure period as appropriate on a case-by-case basis. Thus, for example, if an owner or operator can demonstrate to the Regional Administrator that there is no need to monitor and maintain his closed disposal facility for the entire 30 year period, the peri- od could be shortened. Representatives of the public, on the other hand, could also petition to have the monitoring period extended for cause. EPA agrees that the longer site owners or operators are re- sponsible for their operations, the more incentive they will have to find new containment technologies. Thus, requiring 30 years of post-closure care as a general rule should be an incentive to better technology and encourage alternatives to land disposal. EPA agrees with those cotnmenters who pointed out that risks from .some wastes persist for long periods of time. For organic wastes disposed of in an anaerobic environment, the decomposition to non- toxic products is very slow.^' Similarly, heavy metals remain tox- ic forever, and may be mobilized unless carefully managed. Because of the extreme persistence of some waste, EPA is considering asking Congress for some type of national insurance, funded by waste 46 ------- disposers, that would pay for routine monitoring and maintenance past the time required by EPA. The fund could also cover these activities in the case of default by the owner or operator, and could be de- signed to cover remedial activity where the owner or operator is not solvent. Given the authority under RCRA, EPA believes its regu- lations provide the maximum practical protection for the public while allowing flexibility to either shorten or lengthen the post-closure period for cause. Comments, Analysis, and Response on the Effectiveness and Approach to Post-Closure Regulations In addition to the specific comments on the length of the post- closure period, there were a number of other miscellaneous comments dealing with the concept and approach to the proposed post-closure regulations. Several commenters were afraid that the proposed regulations limited "post-closure responsibility to an arbitrary time period of 20 years and could result in transfer of unsolved problems to regu- latory agencies." Although EPA does not agree that the proposed regulations would allow this "transfer of unsolved problems," the final regulations certainly will not. If there is an unsolved problem at the end of the post-closure period, the final regulations will allow the Regional Administrator to lengthen the time period. Many commenters also felt that "reliance on the concept of post- closure maintenance conflicts with the function of closure, i.e., to achieve a permanently secure facility . . . facilities necessitating 47 ------- post-closure maintenance should not be authorized." EPA believes that the post-closure monitoring and maintenance period is necessary for two reasons. First, for sites which have been properly operated and closed, post-closure maintenance is necessary to assure that the site stays properly closed. If the original vegetation dies 5 years after closure, it must be replanted or the likelihood of erosion, possibly leading to increased water infiltration, increases. It is also possible that an unusually severe storm could cause erosion problems even for a site that was properly closed. To maintain the integrity of the landfills, regrading may be necessary if erosion occurs. Second, the post-closure requirements provide insurance. Mistakes and accidents do happen. In the event that a site has a defect, the Agency expects that the problem would become apparent in the post-closure care period. It would be irresponsible of EPA to count on proper operation and closure and not require a post-closure period. This period provides needed insurance against mistakes in facility design and construction as well as mistakes in these regulations. Another commenter requested clarification on closure, asking, "Where one portion of the facility may be closed long before others, when does 'closure1 per se occur?" The Agency thinks that the pro- posed regulation was ambiguous. In the final regulation, EPA has operationally defined the end of closure to be the point at which the owner or operator submits the registered engineer's closure 48 ------- certification for the entire facility. This certification marks the beginning of the post-closure period. Several other commenters suggested differing solutions to the problems of long term hazard of disposed wastes. One such commenter said that "certain types of hazardous wastes simply cannot be dis- posed of in landfills" because of the long-term threat they pose. Another said that "landfilling of chemical wastes with perpetual care programs represents only an interim solution to the problem of chemi- cal waste management" and suggested that "well funded and innovative programs . . . must be implemented to assure deployment of proper waste destruction facilities, capable of eliminating the specter of repeated Love Canal . disasters in the future." The Agency agrees, in principle, that some wastes should be prescribed from landfills. EPA is making an effort to limit the wastes which are placed in landfills. At present, EPA bans ignit- ables, react ives, and liquids from landfills on the grounds that under normal conditions they cannot be suitably managed. (Readers should see the background document on landfills for further dis- On the issue of funding of destruction facilities, EPA believes that the private sector is fully capable of establishing these pro- grams. The Agency does support, however, development work in these areas through its Office of Research and Development. 49 ------- One commenter stated that protection under these regulations is contingent on the existence of a financially viable owner or operator during the post-closure period. EPA agrees that this comment is a fair characterization of both the proposed and final regulations. The Agency intends to remedy this situation by requesting from Con- gress legislation that will provide for remedial action in the event that an owner or operator is not financially viable. The Agency is considering extending this request to provide for closure and post- closure monitoring and maintenance in the event an owner dissolves, declares bankruptcy or is otherwise not available to comply (under law) with the regulations. The issue of ensuring funding for closure and post-closure requirements is discussed in detail in the back- ground document on financial requirements. Another commenter questioned the legality of requiring future owners of property upon which a storage facility has been located to commit themselves to preserving the integrity of the facility for an unspecified number of years. This commenter also said .that inserting such a clause into the land records appears to be a matter of local concern and jurisdiction and not a matter for Federal concern. The first part of the comment reflects the general confusion over the applicability of closure and post-closure requirements. Closure re- quirements apply to all facilities, while post-closure requirements apply to only disposal facilities. . Second, although solid waste has traditionally been a State and local problem, Congress has deemed it necessary to create a major Federal regulatory program to protect 50 ------- health and the environment from hazardous waste. Because EPA has found that a notice in the land records will materially assist in protecting the integrity of hazardous waste containment systems, a notice requirement is properly a matter of Federal concern. Also, these final regulations allow disturbance of site integrity for cause, with the Agency's approval. Another commenter argued similarly that EPA lacks authority to "hinder transfer of land" through closure and post-closure require- ments. These regulations do not seek to place impediments on the right to transfer ownership. Rather, they seek to assure that a person who purchases or leases land on which hazardous wastes are being or have been disposed will have full knowledge of this fact and will be 'aware of the attendent legal requirements. This will prevent him from unknowingly disturbing a site with, perhaps, tragic conse- quences. While the purchaser's use of the land might be restricted in some respect, such restrictions are fully authorized by the Act. Nothing in the Acf or the legislative history indicates that Congress intended to remove controls from hazardous waste disposal sites when- ever ownership of a site changed hands. As discussed earlier, §§2002(a)(l) and 3004 (first sentence) authorize EPA to issue such standards as may be necessary to protect human health and the environment. From the standpoint of hazards, the identity of the landowner is irrelevant. It is evident, there- fore, that rules governing hazardous waste disposal sites must apply 51 ------- regardless of who owns the land. It is also evident that persons buying land on which hazardous wastes have been disposed must be made aware of this fact. Otherwise, a new owner might innocently engage in activities (such as drilling, excavating, etc.) which could have disastrous consequences to human health and the environment. Another commenter argued that the regulations are unfair. An owner or operator could run the site properly, close it properly and follow post-closure regulations and still be responsible for problems on the site. The commenter said that responsibility should end after 5 years if everything has been done right. Risk, however, is an ordinary part of any business operation. This is especially the case for hazardous waste disposal sites. A person engaging in this busi- ness should realize that he may be held strictly liable for the harm which may be caused by his operations, regardless of whether he was willful or negligent. This "strict liability" for hazardous activi- ties has long been recognized in the law and is not being newly cre- ated by these regulations. It should be pointed out, however, that the Agency's policy is not to penalize facilities which have acted responsibly and. in accord with these regulations by imposing puni- tive measures (fines, etc.) where problems have arisen which could not have been predicted. Synopsis of Interim Status Regulations (§265.117(d)) The interim status regulations require owners or operators of disposal facilities to provide 30 years of post-closure care. The 52 ------- owner or operator may request the Regional Administrator to shorten the time period, or modify the requirements for cause. The Regional Administrator can also, for cause, require that all or part of post- closure care requirements be continued for a specified time period past 30 years. An owner or operator or the public may request an extension or reduction of the post-closure care period, not more often than once every five years. This last provision has been added to limit the frequency and thus the proliferation of similar peti- tions. An early decision to reduce the period, where cause can be shown, would reduce the economic impact of the financial regulations. POST-CLOSURE USE OF PROPERTY AND NOTICE IN DEED TO PROPERTY Synopsis of Proposed Regulations and Rationale The proposed regulations, §250.43-7(b), required owners or operators of disposal sites to record a stipulation on the deed of property. The stipulation stated that future use of the property cannot disturb the final cover, the liner, or the monitoring system of the facility. EPA required the deed stipulation so that any future prospective purchaser would know that he was obtaining a hazardous waste facility or a closed hazardous waste facility. Without this knowledge, a new purchaser might unknowingly seek to use the property in a way that would endanger public health or the environment. Moreover, the stip- ulation would limit future use of disposal facilities, to prevent any 53 ------- disturbance of the site which could cause contaminants to be re- leased. For example, disturbing the cap of a landfill allows liquid to infiltrate the landfill and the liquid increases leachate genera- tion. The Love Canal incident cited earlier in this background docu- ment shows that disturbing the final cover of a site can lead to disastrous results. Comments, Response, and Rationale for Interim Status and Full Status Regulations One commenter noted that an operator who does not have legal title to a hazardous waste facility may be legally unable to record anything in the land records. EPA has accordingly revised the pro- posed language to make it clear that the owner must record the re- quired notice. If such notice is not recorded, the operator will not receive a permit. Another commenter said that a deed stipulation is not an ade- quate method of controlling future use of a site, and that some other method should be used. EPA, on reflection, agrees and feels that a more direct and more readily enforceable method of controlling future land use is preferable. As a result, a new regulation has been in- corporated which precludes future uses which disturb the containment or monitoring systems unless the disturbance is necessary to clean up a problem or it can be shown that any potential hazard will not be increased. The deed stipulation has therefore been changed to a notice on the deed (or other instrument which will appear in a title 54 ------- search) Chat the property contains a hazardous waste site, -and that Federal regulations (the stipulations mentioned above) govern the use of this site. During interim status the owner must record the stipulation on the deed, but need not show EPA that he has done so. This follows the general rule that owner or operator interaction with EPA will be held to a minimum during interim status. A general area of comment was future use of sites. One commen- ter on this subject said that hazardous waste facilities should be permanently secured, and not considered for any future land use. Other commenters said that the non-disturbance provisions foreclosed possible productive future uses, and were not a good idea. They added that not allowing the containment or monitoring system to be disturbed could make remedial action at a closed facility impossible. At the very least, they argued that EPA should "establish procedures for an EPA hearing whereupon the future owner or operator could demonstrate that the need for the cover or liner is unnecessary due to changed conditions since he has cleared up the situation that necessitated its existence initially, or that the cover or liner must be disturbed in light of changed conditions." EPA agrees that possible productive future uses should not be precluded so long as these uses do not endanger health or the envi- ronment. Thus, the final regulations permit disturbing the cover, liner, containment system, and monitoring system if the owner or 55 ------- operator can demonstrate that it is essential to the proposed use ofthe property and will not endanger human health or the environment, or that the disturbance is necessary to reduce environmental contam- ination or a threat to public health. Once the owner or operator has demonstrated these conditions to the Regional Administrator, it will be possible for him to mine a closed site, remove the waste and use the site for another purpose, or disturb liners, covers, etc., to take remedial action. Another commenter stated that "specific approval by the EPA Re- gional Administrator of a new use should be required." EPA does not agree that in all cases the Regional Administrator should have to ap- prove a new land use. If the new land use does not disturb the in- tegrity of the facility, EPA need not approve the new use. The Agency, for example, does not care if a golf course is converted to a botanical garden. If the new use disturbs the final cover, liner(s), containment system, or monitoring system, then the interim status regulations require the Regional Administrator to approve the disturbance. Synopsis of Interim Status Regulations (§265.117(c), .120) The interim status regulations require that post-closure use of disposal facilities may not ordinarily disturb the final cover, liner(s), or other components of the containment or monitoring system. However, post-closure use may disturb the cover, etc., if the disturbance is both necessary to the property use and will not 56 ------- result in an increase in the potential for a human health incident or environmental degradation. The cover, etc., may also be disturbed if the disturbance is necessary for remedial action. During interim status, owners of disposal facilities must record on their deed, or other instrument normally examined during a title search, a notation indicating that the property was used as a hazard- ous waste disposal facility and that land use restrictions apply. NOTICE TO LOCAL LAND AUTHORITY Synopsis of the Proposed Regulation and Rationale The proposed version §250.43-7(1) required owners or operators of disposal facilities to file survey plats with the Regional Admini- strator and the local land authority within 180 days of the comple- tion of closure. These plats were to be certified by a professional land surveyor, and show the type and location of hazardous waste disposed of in the facility. There were three separate reasons for requiring the information on the plat. In the event of a problem after post-closure, remedial action becomes much easier if the responsible party knows the loca- tion of the different wastes. If, for example, ground-water monitor- ing during the post-closure period detects heavy metals,.and if the site accepted limited quantities of heavy metals, knowing the loca- tion of these wastes makes cleanup easier. The location and nature of wastes could also be useful in determining where to sink 57 ------- additional monitoring wells, what substances to test for during chemical analyses, what protective equipment to bring for remedial work, etc. The possibility of future resource recovery presents another potential need for a permanent record of waste location. If tech- nology develops and costs become economical, portions of disposal facilities might be "mined" to recover previously abandoned sub- stances. In this event, the plat will provide the information on where the mining should occur. Finally, the information on the plat is important for local land use. Utility companies routinely inspect plats when locating rights- of-way, and highway departments inspect plats before building roads. Also, in future years, current or future site owners may find it necessary to locate the buried waste accurately. These plats should be filed with both EPA and the local land use authority. In the event of a problem, EPA or other emergency re- sponse officials may need to know the location of the wastes. For rights-of-way, easements, and similar situations, the company that wants the right-of-way routinely searches the local land use author- ity files. This search would reveal that the land had been used for disposing of hazardous waste. Moreover, future owners may want this information as well in the event they need to excavate in the area. 58 ------- Comments, Response, and Rationale for Final Regulation One commenter pointed out that the owner or operator could not prepare the plat, nor could the surveyor certify the type of hazard- ous waste in each cell or trench. EPA agrees that the proposed language was slightly ambiguous. It is clear that only the owner or operator can provide the informa- tion regarding waste type and location while only the surveyor can prepare the plat and relate it to permanent benchmarks. The final regulations clearly express this division of these requirements. Another commenter argued that it is difficult to justify the need for having an engineer certify proper closure in addition to re- cording the certified survey plat. EPA feels that both are necessary as each serves a separate pur- pose. Certification of closure helps ensure that the closure is proper; it is the final, and probably the most important, action in the design of the site. The survey plat, on the other hand, repre- sents the first step in the post-closure phase. The purpose of the plat is to provide information if problems arise after the operating period, if resources are to be recovered, or '.f it is necessary to locate water mains, power lines, etc. One commenter also raised the argument that in order to certify the plat, the surveyor would have to be present at the site con- stantly. In the final regulation, the surveyor is responsible only for preparing and certifying the plat, which indicates the location 59 ------- and dimensions of cells or trenches. This plat can be prepared from the operating log of the facility, so the surveyor would not always have to be present at the facility. One commenter suggested that the survey plat filed with local authorities should identify the post-closure requirements of these regulations. EPA does not see the advantage of such a requirement. The Agency foresees that the plats will be examined only in the event of problems, resource recovery operation, or in conjunction with easements. EPA is requiring, however, that a note be placed on the plat warning that Federal regulations control disturbance of the s ite. . Another commenter argued that the survey plat should indicate only .the location of the primary hazardous wastes. The Agency dis- agrees. Because the plats will be useful in taking remedial actions and in resource recovery, they should contain the location of all hazardous waste. Furthermore, the Agency does not have criteria to distinguish between primary hazardous wastes and other hazardous wastes. Synopsis of Interim S.tatus Regulations (§265.119) In interim status, the owner or operator of a disposal facility must submit to the Regional Administrator and the local land authority a survey plat indicating the location and dimension of cells, trenches, etc. The plat must be prepared by a professional land surveyor, and contain a note that Federal regulations apply to 60 ------- the land which limit its use. The owner or operator must also submit to the Regional Administrator and the local land authority the type and location of waste disposed of in each cell, trench, etc. The owner or operator must submit the certification and type and location records to the Regional Administrator and the land authority within 90 days after completing closure. During interim status, the owner or operator must also submit records showing type and location of waste disposed of prior to the promulgation of these regulations to the degree that his records and memory allow. Although no comments were received on the subject, the time al- lowed for filing of the documents has been decreased from 180 to 90 days after completion of closure. Small-scale surveys of this type can be performed quickly and the records of waste .location are sup- posed to be maintained during site life. Therefore, a 90 day filing rule should present no difficulties. The Agency is concerned that the longer the period allowed, the more likely is the possibility of records getting lost or vegetation obscuring waste locations. Fur- ther, it is possible that someone might need to use the information, even within the first six months. COMPLIANCE WITH FINANCIAL REQUIREMENTS Synopsis of Proposed Regulation The proposed regulations, §250.43-7(a), required that owners or operators of hazardous waste facilities comply with the financial requirements of §250.43-9. 61 ------- Comments EPA received no comments on this paragraph in the closure regu- lations . Rationale for Interim Status and General Status Final Regulations In the interim status regulations, EPA deleted this section of the closure and post-closure regulations. Compliance with financial requirements is mandated by .the financial requirements section. There is no reason for closure and post-closure regulations to repeat these requirements. POST-CLOSURE LEGISLATION Comments and Response Although it is not relevant to the adequacy of these regula- tions, one commenter suggested that EPA seek legislation to require deeding permitted hazardous waste landfills to the Federal Government or an appropriate State agency at the end of closure, before the post-closure period begins. The commenter felt that this would (1) provide credibility to the sites, (2) provide better control of waste disposal practices, and (3) settle the question of who is liable after post-closure. EPA is not currently considering recommending such legislation. However, a State with an authorized program could follow such an ap- proach on its own. In fact, Oregon does require deeding of the facility to the State.10 One general principle EPA has followed in developing hazardous waste regulations is that the beneficiaries of 62 ------- activities should bear the full social cost of these activities. Deeding facilities to the Federal Government would violate this principle. For a company that disposes of waste, providing for safe and secure disposal even after the disposal site closes is part of the cost of business. Since the owner or operator of disposal sites must maintain the sites after closure, disposal costs will be higher than if sites were deeded to the government at closure. The disposer passes on some of this increased cost to the waste generating company, which in turn passes on some portion of the cost to the consumer. Those who benefit from the production of the waste (disposers, consumers, and generators) bear the cost, rather than the society at large. This would not be true if the disposer deeded the site to the Federal Government at closure. Furthermore, if the disposer keeps control of the site following closure, he has a stronger incentive to operate and close the site properly than he would if the site were deeded to the Federal Govern- ment following closure. Responsibility for one's actions is a strong incentive to proper performance. Finally, EPA does not agree with the three reasons for deeding sites to the Federal Government. The entire purpose of the hazardous waste regulations is to provide better control of waste disposal practices. Assuming these regulations are fully effective as the Ag- ency intended, then deeding closed sites to the Federal Government 63 ------- will not significantly improve this control. Furthermore, EPA be- lieves that promulgating regulations designed specifically to protect the public health provides the necessary credibility to sites meeting these requirements. Finally, deeding sites to the Federal Government settles the question of liability only if the Federal Government be- comes liable for the sites. The Agency currently thinks responsibil- ity is better settled, for the reasons discussed above, if the disposer remains responsible during the post-closure period. One commenter suggested that all post-closure care should be the responsibility of the Federal Government, if closure were satisfactory to EPA. A national fund, raised "by a disposal fee commensurate with the type and quantity of wastes deposited and the estimated cost of post-closure care," would pay for any necessary remedial actions. As previously discussed, the Agency is in favor of such a fund since it would allow an extended period of post-closure monitoring and maintenance. As the Agency envisions it, owners or operators would be required to conduct post-closure activities ad infinitum or for an extended period. Trust funds would not be required, so owners could fund these activities from revenues from other sites or other assets. In addition, each disposer would pay a small annual fee to the "national fund." The "fund" would then cover post-closure activities for those owners which dissolve, go bankrupt, or are not otherwise reachable by legal suit to carry out these 64 ------- responsibilities. The Agency does not have the authority to imple- ment such a fund under RCRA but is considering asking Congress for this authority. The Agency does not now agree, however, that post-closure care should be the responsibility of EPA, for reasons previously discussed. The Agency considers that its role is to ensure that necessary post-closure care is accomplished where the private sector fails in its responsibilities. 65 ------- IV. FINAL INTERIM STATUS REGULATIONS Subpart G - Closure and Post-closure §265.110 Applicability Except as §265.1 provides otherwise: (a) Sections 265.111-265.115 (which concern closure) apply to the owners and operators of all hazardous waste facilities; and (b) Sections 265.117-265.120 (which concern post-closure care) apply to the owners and operators of all disposal facilities. §265.111 Closure performance standard The owner or operator must close his facility in a manner that: (1) minimizes the need for further maintenance and (2) controls, minimizes, or eliminates to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous waste constituents, leachate, contaminated rainfall, or waste decomposition products to the ground water, or surface waters, or to the atmosphere. §265.112 Closure plan; amendment of plan (a) On the effective date of these regulations, the owner or operator must have a written closure plan. He must keep this plan at the facility. This plan must identify the steps necessary to completely close the facility at any point during its intended life and at the end of its intended life. The closure plan must include, at least: (1) A description of how and when the facility will be partially closed, if applicable, and ultimately closed. The description must identify the maximum extent of the operation which will be unclosed during the life of the facility, and how the requirements of §265.111 and the applicable closure requirements of §§265.197, 265.228, 265.280, 265.310, 265.351, 265.381, and 265.404 will be met; 66 ------- (2) An estimate of the maximum inventory of wastes in storage or in treatment at any given time during the life of the facility; (3) A description of the steps needed to decontaminate facility equipment during closure; and (4) A schedule for final closure which must include, as a minimum, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates which will allow tracking of the progress of closure. (For example, the expected date for completing treatment or disposal of waste inventory must be included, as must the planned date for removing any residual wastes from storage facilities and treatment processes.) (b) The owner or operator may amend his closure plan at any time during the active life of the facility. (The active life of the facility is that period during which wastes are periodically received.) The owner or operator must amend his plan any time changes in operating plans or facility design affect the closure plan. (c) The owner or operator must submit his closure plan to the Regional Administrator at least 180 days before the date he expects to begin closure. The Regional Administrator will modify, approve or disapprove the plan within 90 days of receipt and after providing the owner or operator and the affected public (through a newspaper notice) the opportu- nity to submit written comments. If an owner or operator plans to begin closure within 180 days after the effective date of these regulations, he must submit the necessary plans on the effective date of these regulations. §265.113 Time allowed for closure (a) Within 90 days after receiving the final volume of hazard- ous wastes, the owner or operator must treat all hazardous wastes in. storage or in treatment, or remove them from the site, or dispose of them on-site, in accordance with the approved closure plan. (b) The owner or operator must complete closure activities in accordance with the approved closure plan and within six months after receiving the final volume of wastes. The 67 ------- Regional Administrator may approve a longer closure period under §265.112(c) if the owner or operator can demonstrate that: (1) the required or planned closure activities will, of necessity, take him longer than six months to complete, and (2) that he has taken all steps to eliminate any sig- nificant threat to human health and the environment from the unclosed but inactive facility. §265.114 Disposal or decontamination of equipment When closure is completed, all facility equipment and structures must have been properly disposed of, or decontaminated by removing all hazardous waste and residues. §265.115 Certification of closure When closure is completed, the owner or operator must submit to the Regional Administrator certification both by the owner or opera- tor and by an independent registered professional engineer that the facility has been closed in accordance with the specifications in the approved closure plan. [§265.116 Reserved] §265.117 Post-closure care and use of property; period of care (a) Post-closure care must consist of at least: (1) Ground-water monitoring and reporting in accordance with the requirements of Subpart F; and (2) Maintenance of monitoring and waste containment systems as specified in §§265.91, 265.223, 265.228, 265.280, and 265.310, where applicable. (b) The Regional Administrator may require maintenance of any or all of the security requirements of §265.14 during the post-closure period, when: (1) Wastes may remain exposed after completion of closure; or 68 ------- (2) Short term, incidental access by the public or domestic livestock may pose a hazard to human health. (c) Post-closure use of property on or in which hazardous waste remains after closure must never be allowed to disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the facility's monitoring systems, unless the owner or operator can demonstrate to the Regional Administrator, either in the post-closure plan or by petition, that the disturbance: (1) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or (2) Is necessary to reduce a threat to human health or the environment. (d) The owner or operator of a disposal facility must provide post-closure care in accordance with the approved post-closure care plan for at least 30 years after the date of completing closure. However, the owner or operator may petition the Regional Administrator to allow some or all of the requirements for post-closure care to be discontinued or altered before the end of the 30-year period. The petition must include evidence demonstrating the secure nature of the facility that makes continuing the specified post-closure requirement(s) unnecessary—e.g., no detected leaks arid none likely to occur, characteristics of the waste, application of advanced technology, or alternative disposal, treatment, or reuse techniques. Alternately, the Regional Administrator may require the owner or operator to continue one or more of the post-closure care and mainte- nance requirements contained in the facility's post-closure plan for a specified period of time. The Regional Adminis- trator may do this if he finds there has been noncompliance with any applicable standards or requirements, or that such continuation is necessary to protect human health or the environment. At the end of the specified period of time, the Regional Administrator will determine whether to continue or terminate post-closure care and maintenance at the facility. Anyone (a member of the public as well as the owner or operator) may petition the Regional Adminis- trator for an extension or reduction of the post-closure care period based on cause. These petitions will be considered by the Regional Administrator at the time the post-closure plan is submitted and at five-year intervals after the completion of closure. 69 ------- §265.118 Post-closure plan; amendment of plan (a) On the effective date of these regulations, the owner or operator of a disposal facility must have a written post-closure plan. He must keep this plan at the facility. This plan must identify the activities which will be carried on after final closure and the frequency of those activities. The post-closure plan must include at least: (1) Ground-water monitoring activities and frequencies as specified in Subpart F for the post-closure period; and (2) Maintenance activities and frequencies to ensure: (1) the integrity of the cap and final cover or other containment structures as specified in §§265.223, 265.228, 265.280, and 265.310, where applicable, and (2) the function of the facility's monitoring equipment as specified in §265.91. (b) The owner or operator may amend his post-closure plan at any time during the active life of the disposal facility or during the post-closure care period. The owner or operator must amend his plan any time changes in operating plans or facility design affect his post-closure plan. (c) The owner or operator of a disposal facility must submit his post-closure plan to the Regional Administrator at least 180 days before the date he expects to begin closure. The Regional Administrator must modify or approve the plan within 90 days of receipt and after providing the owner or operator and the affected public (through a newspaper not- ice) the opportunity to submit written comments. The plan may be modified to include security equipment maintenance under §265.117(b). If an owner or operator of a disposal facility plans to begin closure within 180 days after the effective date of these regulations, he must submit the necessary plans on the effective date of these regulations. Any amendments to the plan under paragraph (b) of this Sec- tion which occur after approval of the plan, must also be approved by the Regional Administrator before they may be implemented. §265.119 Notice to local land authority Within 90 days after closure is completed, the owner or operator of a disposal facility must submit to the local land authority and to 70 ------- the Regional Administrator a survey plat indicating the location anddimensions of landfill cells or other disposal areas with respect to permanently surveyed benchmarks. This plat must be prepared and certified by a professional land surveyor. The plat filed with the local land authority must contain a note, prominently displayed, which states the owner's or operator's obligation to restrict distur- bance of the site as specified in §265.117(c). In addition, the owner or operator must submit to the Regional Administrator and to the local land authority a record of the type, location, and quantity of hazardous wastes disposed of within each cell or area of the facility. For wastes disposed of before these regulations were promulgated, the owner or operator must identify the type, location, and quantity of. the wastes to the best of his knowledge and in accor- dance with any records he has kept. §265.120 Notice in deed to property The owner of the property on which a disposal facility is located must record, in accordance with State law, a notation on the deed to the facility property—or on some other instrument which is normally examined during title search—that will in perpetuity notify any potential purchaser of the property that: (1) the land has been used to manage hazardous waste, and (2) its use is restricted under §265.117(c). [§§265.121 - 265.139 Reserved] 71 ------- V. REFERENCES 1. "Analysis of a Groundwater Contamination Incident in Niagara Falls, N.Y.," Fred C. Hart Associates, Inc. July 18, 1978, unpublished report and "Cost of Proper Design and Closure, and Maintenance at Love Canel," Steve Caldwell, U.S.E.P.A., unpublished report, 1979. Memorandum - Dave Huber, U.S.E.P.A. to docket, 1/15/80. 2. "Analysis of a Land Disposal Damage Incident Involving Hazardous Waste in Anniston, Alabama," M. Ghassemi, TRW. March 1977. 3. "Draft Hazardous Waste Disposal Damage Reports, St. Louis Park, Minnesota and Louisville Sewer System," Steve Caldwell, U.S.E.P.A. August 4, 1978 (unpublished report). 4. "Assessment of the Extent of Environmental Problems posed by Hooker Chemical Dump in Niagara Falls, New York and Estimated Cleanup Costs," Fred C. Hart Associates, Inc. December 11, 1978 (unpublished report). 5. "Hazardous Waste Cleanup: Silresium Site in Lowell, Massachusetts," MITRE Corp., June 1979 (unpublished report). 6. Memorandum - Cynthia Giansante, U.S.E.P.A. to Alfred Lindsey, U.S.E.P.A. - 12/27/79. 7. Wisconsin Solid Waste and Hazardous Waste Management Program - Chap 337 - (Assembly Bill 1024) (includes Wis. HW Mgt. Act; Wis. Stat. Ann Sec 144.60 et seq). 8. Minnesota Hazardous Waste Regulations - 1979- 6MCAR §4.900. 9. Kan. Stat. Sec. 65-3401 et seq - a 1979 Solid Waste Management Act (SB#170). 10. Oregon Solid Waste Control Law; Oregon Revised Statutes, 1977 Replacement, Chapter 459. 11. "Potential for Capacity Creation in the Hazardous Waste Ma^gement Service Industry," Foster D. Snell, Inc. 1976, p. 14. 12. "Pollution Prediction Techniques for Waste Disposal Siting", EPA Report No. 68-01-4368, 1978. 72 ------- |