24401-37      -^j.,,

               t"                  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
  i
                  Parts 265 and 264 Subpart G -  INTERIM STATUS STANDARDS AMD
                  GENERAL STATUS STANDARDS FOR CLOSURE AND POST-CLOSURE CARE
                            U.S. ENVIRONMENTAL  PROTECTION AGENCY
                                   OFFICE OF  SOLID WASTE
                                     December 31,  1980
      EJBD
      ARCHIVE                              US EPA           _
      EPA                     Headquarters and Chemical Libraries
      530-                        EPA West Bldg Room 3340
      5;                                Mailcode 3404T
      °°7                          1301 Constitution Ave NW
      041                            Washington DC 20004
                                         202-566-0556

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                    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
 Parts 265 and 264 Subpart G - INTERIM STATUS STANDARDS AND
 GENERAL STATUS STANDARDS FOR CLOSURE AMD POST-CLOSURE CARE
            U.S. ENVIRONMENTAL PROTECTION AGENCY
                   OFFICE OF SOLID WASTE
                     December 31, 1980

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                            TABLE OF CONTENTS

I.    INTRODUCTION

      Key Definitions

II.    RATIONAL FOR  REGULATION

      A.   EPA Authority
      B.  . Basis for Regulation and  Damage Cases
      C.   State Precedents

III.  ANALYSIS OF CLOSURE AND  POST-CLOSURE COMMENTS AND
      REGULATORY SYNOPSES AND  RATIONALE

      - Closure Performance Standard
      - Closure and Post-Closure Plans
      - Close-out Requirements
      - Time Allowed for Closure
      - Disposal or Decontamination of Eauipment
      - Close-out and Closure  Notification
      - Closure and Post-Closure Certification
      - Notification of Mew Owner or Operator
      - Post-Closure Care
      - Equipment and Provisions for Post-Closure
        Grounwater Monitoring
      - Post-Closure Period and Effectiveness and Approach
        to Post Closure Regulation
      - Post-Closure Use of Property and Notice in Deed
        to Property
      - Notice to Local Land Authority
      - Compliance with Financial Reauirements
      - Post-Closure Legislation

IV.   ANALYSIS OF CLOSURE AND POST-CLOSURE COMMENTS FOR FINAL
     PART 265, AND REGULATORY  SYNOPSES AMD RATIONALE

 V.   RATIONALE FOR GENERAL STATUS STANDARDS

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j,
     Thf« fl 
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In 265.351 and 264.351, for thermal  treatment in 265.381  and  264.381,
264.381, and for other types of treatment facilities  in 265.404  and
264.404.
     The remainder of this document is divided into five chapters.  Chapter 2
presents the rationale for the regulation, addressing the Agency's  authority,
the need for the regulation, and precedents for it.   The remaining four
chapters provide analyses of the public comments received on  the various
regulations and the rationale and documentation for the Interim  Status  and
General Status Standards.
     The Agency received many public comments on the proposed version  of
                                                              •
these regulations published on December 18, 1978.  Chapter 3  provides  an
analysis of these oublic comments, and EPA's responses to these  comments.
The Agency promulgated the Interim Status Standards for closure  and post-
closure (Section 265, Subpart 6) on May 19, 1980.  These regulations
included both final Interim Status Standards and interim final Interim
Status Standards.
     Since the interim final portions of the regulations were substantially
different for the proposed regulations, the Agency invited the oublic  to
comment on these sections.  Chapter 4 presents the comments EPA  received
on the interim final sections of the regulation, an analysis  of  these  public
comments,  and the rationale for the final Interim Status Standards.
     Chapter 5 discusses the rationale for the General Status Standards
which are applicable to those owners or operators of facilities  who
have not complied with the requirements for interim status.   (See §264.3
and §265.1)  The closure and post-closure General Status Standards  are
similar to the final Interim Status Standards but include the approval

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of the plans as part of the permitting process  and  was based,  in  part,
on the public comments  received on previous versions  of the  regulations.
     The final  chapter, Chapter 6, provides a list  of references  for  the
entire document.
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  facility  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*1th "closure" and "post-closur.e." However, since it appeared
in £he nroposed 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 the 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 1n operation
     1n 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 nteaning
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

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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
retirements 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 Suboart  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
comoletely closed.
     The concept of partial closure is important because the closure  plan
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(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 nay 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 regulations
since they were originally proposed in December, 1978:   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 reaulatiofls.

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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 monitoring 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 1s shown in the case studies outlined in this
document, there 1s a significant risk that disposal facilities could harm
human health or the environment after they have ceased operation, even many
years after closure.  There 1s also a significant risk that treatment and
storage facilities could cause harm if they are not closed prooerly.  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)(l), 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

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          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  present
          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.
8.  Basis for Regulation and Damage Cases
     EPA believes that closure is extremely important in protecting the
public and the environment from contamination by hazardous  substances.
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, controls  and  greatly minimizes
leaching by reducing the infiltration of liquids.  For treatment and
storage facilities one aspect of prooer closure requires that all
hazardous waste must be removed at closure, which also minimizes the
threat of contamination from these facilities.
     In the past, prooer 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  financial and
technical.  Facilities are frequently designed and operated in ways which
make adequate closure difficult.  Waste inventories  (waste  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

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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
1n 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 beinq
reoroposed but will be covered in Subnart 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 adeauate closure.  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 treament,

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storage, and disposal  facilities.   These damage  incidents  illustrate how

hunan health and the environment may'he affected by  inadeauate 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 unlesss

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.

     0  Beginning in the 1920's, a major chemical  producer buried chemicals
        of unknown kind and quantity in a landfill  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 S32 million.   Damage
        claims totaling S2.5 billion have been filed in the caseJ  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.

     0  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

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 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 antici-
 pation 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 wathering,
 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  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  1n Virginia became aware  of
 the problem 1n 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  1n 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.3

 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 yearsrafter closure.

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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 drainage
system during the post-closure period aggravated these problems.
Cleanup cost for the site may exceed $57 nil lion.4

This case points out the need for regulations which will  reouire
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 declared
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 explosions 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 spils piles.  Because of wind erosion,
the atomosphere 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/n^.  State
officials found an asbestos level of 9.6 ng/m^ at a playground
near the largest waste  pile.  Values obtained near active disposal
piles ranged from 114 to 1745 ng/nv.  A high pH level in a nearby
stream has resulted from runoff from the piles.^

This case points out the need for regulations which will  ensure
proprer closure by facility owners or operators.  Specifically,
it shows why closure plans for storage facilities must show  how
the owners or operators intent to dispose of the waste at closure.
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C.  State Precedents

     A number of States  regulate  the closure and post-closure activities

of facilities 1n thefr jurisdiction 1n 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:

     0  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, monitoring 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 resoonsibility 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
        terminate 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 Intervals.  After
        the  owner's responsibility for long-term care terminates, the
        State Waste Management Fund 1s used to pay the cost of any
        additional  long-term care required.7

     0  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 responsibility for long-term maintenance,
        monitoring and surveillance.8

     0   Kansas  requires facility owners or operators to submit a closure
        and  post-closure plan.  The hazardous waste regulations specify
        owner or operator closure and post-clsorue duties and responsi-
        bilities.  Owners or operators are 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 environment.  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
                                   11

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ended or for costs of repairing a site or repairing environnental
damage 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 addition, 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.
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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 public 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 and the
text of each subsection of the interim status regulation.
     Before this sectlon-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 general 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 disposed 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.ii  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  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-site facilities.
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CLOSURE PERFORMANCE STANDARDS
Synopsis of Proposed Regulation and Rationale
     As proposed, the regulation, §250.43-7(1)  required that after closure
all facilities be secured to prevent human and animal  life from contacting
the waste.  It further banned discharges hamful 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 requirenent was too broad.  Insects,
moles, and worms are animal life, and 1t would be virtually impossible to
keep them from contact with hazardous waste.  Some of these commenters
suggested EPA delete the requirement; others suggested that 1t only proscribe
humans from contact with hazardous waste; and others suqgested that it
proscribe contact  for only higher 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 terns of performance.
     The Agency  has concluded that this entire paragraph was overly broad,
vague, and redundant.  The Agency has adooted specific requirements 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).
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     Other commenters  stated  that thfs  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 comment
illustrates,  however,  a common misunderstanding of  the  proposed  regulations.
Many commenters  did not understand that post-closure retirements 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 those  for closure and post-closure.   The  Office of Surface
Mining regulations were written to address coal mining  wa-stes.   The
Agency has no justification to defer regulation of  other hazardous  wastes
to regulations written specifically  for coal mining wastes.   The deferral
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 §265.111 of the Interim  Status Regulations
                                          •
     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
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primary purpose for adeauately closing a facility.   Secondarily,  It
requires that 1t be closed In such a way as  to minimize  the  need  for
future maintenance, e.g., from erosion.
Text of §265.111 of the Interim Status Regulation
§265.111  Closure performance standard
     The owner or operator must close his facility  in a  manner that:
(1) minimizes the need for *urther 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.
CLOSURE AND POST-CLOSURE PLANS
Synopsis of Proposed Regulation and Rationale
     The proposed regulation, §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 thfe land after closure,  and (3) anticipated
site life and schedules for final closure, and partial closures.
     EPA believes that closure 1s extremely Important in protecting  the
public and the environment from contamination by hazardous substances.
As previously discussed, the Agency believes that advance planning is
necessary to ensure that adequate preparations and  resources are on  hand
to accomplish closure properly.  Therefore,  the preparation of closure  and
post-closure plans is required.
Comments, Analysis, and Response
     One concern was that complying with the proposed regulation  required a
crystal ball, since waste streams, technology, and  site  operation would
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surely change during the life  of  a site,  and  these changes  would affect
closure retirements.   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.   Facilities
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  technologies.  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  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 case^ and common sense  show that proper  closure for a treatment
or  storage facility 1s just as necessary  as it  1s for a disposal facility.
If  treatment and storage facilities,  during closure, do not properly disoose
                                    17

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of on-hand waste Inventories and residues and decontaminate equipment,  they
can clearly endanger public health and the environment.5  An EPA  approved
closure plan will  increase the probability of an adequate closure.
     On the question of the applicability of the proposed regulations,  EPA
intended that while closure plans should apply to treatment and storage
facilities as well as to disposal facilities, post-closure retirements
should apply only to disoosal facilities.  The language of the final
regulations makes this clear.  If hazardous waste is removed durinq closure,
as is required for treatment and 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 1s
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 comme'nter
provided specific language to describe the objective.
                                                                     V
     On reviewing the proposed regulation, EPA agrees that the objective
of closure is not adequately addressed.  T^e final regulations borrowed
much suggested language from this comment, and revised §265.111 now
furnishes an operational definition of closure.  Basically, the objective
is to cause facilities to close  so as to control, 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 .
                                    18

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post-closure requirements should he 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 1s 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-slte basis.
When approved, the closure plans will likely then become part of the pemit
conditions.  When closure Is completed each facility must submit a certi-
fication 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 requirements
should reflect segmented operations.  EPA Intended that the proposed
regulation do so and has revised the regulations.  The final  regulation
(S265.112(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.  Slmllarily,  local  authorities who want
to receive plans can require submission under local  law.   The Agency sees
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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.
     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 §265.111 of the Interim Status Standards
     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, leachate, 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 Inventories during site
life, (3) an  identification of steps for decontaminating equipment during
closure, and  (4) a schedule for closure showing the anticipated date of
final closure and intervening milestones to allow tracking progress.  In
interim status, this closure plan must be developed, hut need not he
submitted to EPA until 180 days before the owner or operator anticipates
                                    20

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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 containment systems, and,
where applicable,  to the  monitoring equipment.   In interim status, the
owner or operator must develop this plan  and maintain  1t 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 owners or operators  submit this plan to the Regional  Administrator
along with Part B  of the  permit application.   The  Regional  Administrator
would then approve  or modify  the post-closure plan.  Once approved,  the
                                   21

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plan would be Incorporated into the permit conditions.

     Owners or operators my amend post-closure plans.   EPA  requires

amendments If changes 1n 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 P>eg1onal

Administrator for approval.

Text of §265.112 of the Interim Status Regulations

§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 Hfe of the facility, and how the
               requirements of §265.197, 265.228, 265.280,  265.310,  265.351,
               265.381, and 265.404 will be met;

          (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 competing treatment or disposal  of
               waste inventory must be  included, as must the planned date
               for removing any residual wastes from  storage facilities
               land 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 1s 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.
                                    22

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     (c)   The  owner  or operator roust submit hfs closure plan to the
          Regional Administrator at least 180 days before the date he
          expects  to begin closure,  The Regional Administrator wm
          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 opportunity 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.

Test of $265.118 of  the Interim Status Standards

§265.113  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 1n Subpart F for the post-closure period; and

          (2)   Maintenance activities and frequencies to ensure:
               (I) the Integrity of the cap and final cover or other
               containment structures as specified 1n $$265.223, 265,228,
               265.280, and 265.310, where appHcabale, and (2) the function
               of  the facility's monitoring equipment as .specified 1n $285,91.

     (b)   The  owner  or operator may amend his post-closure plan at any time
          during the active Hfe of the disposal facility or during the post-
          closure  care period.  The owner or operator must amend his plan any
          time changes 1n 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 notice) the opportunity to submit written
          comments.   The plan may be modified to Include security equipment
          maintenance under $265.117(b).  If any 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 Section which
          occur after approval of the plan, must also be approved by the
          Regional Administrator before they may be Implemented.
                                   23

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CLOSE-OUT REQUIREMENTS
Synopsis of Proposed Regulation and Rationale
     According to the proposed regulation, §250.43-7(f),  all  hazardous
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 1n that time.  EPA required that wastes be removed and properly
disposed of quickly, because 1t felt that after close-out, facilities are
particularly susceptible to problems.  Management tends to lose Interest
In a facility that no longer generates revenues, and nay substantially
reduce the staff.  Having untreated or undisposed waste in an inactive
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.
Comments. Analysis, and Response
     One coimnenter said that after 30 days, waste should be contained to
ensure environmental protection.  Another commenter said that allowing 90
days after close-out for disposing of inventory and removing inventory
allows inadequate time to remove and dispose of wastes from storage
and treatment facilities.
     EPA thinks that 90 days 1s adequate time.  EPA feels that a well-run
operation should have little trouble meeting this requirement, 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 ceaase operations in a way that allows
                                    24

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It to work off fts Inventory.   Finally,  the ftnal  regulations require the
closure plan tp Include the estimate of  the time that will  be required to
dispose of Inventories*  Owners or operators must dispose of inventories
within this tin*, or be 1n violation at  their permit.
Synopsis of §265.U3(a) of the Interim Status Regulations
     The Interim status regulation Is the  same as  the proposed regulation,
except that the words "close-out" have been replaced.   EPA  no longer uses
these words 1n the regulations, since they confused many readers.
     In the Interim Status Standards, an owner or operator  must dispose
of (on- or off-site) or treat  all wastes in storage or 1n process  within
90 days after the facility receives its  final  shipment of waste.
Text of §265.113 fa)  of tha Interim Status  Standards
§265.113  Time allowed foreclosure
              '**>m~m -   -    £^^*m^*m^^-m
     (a)  Within 90 days after receiving the final  volume of hazardous
          wastes, the ownei- or operator  must treat all  hazardous wastes
          In storage or In treatment, or remove them froi* the site, or
          dispose of them on-s1te, 1n accordance with  the approved closure
          plan.
TIME ALLOWED FOR CLOSURE
Synopsis of Proposed Regulation and Rationale
     The proposed regulation,  §250.43-7(g),  required that closure  he
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 and Response
     Some commenters thought a three year  period was too short, and other
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.
                                    25

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     EPA concurs with this last view.  It should certainly  take longer  to
close a large surface Impoundment where dewaten'ng is part  of the  closure
procedure than it will to close a snail 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
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 comroenter stated that closure should be performed in accordance
with the closure plan.  EPA agrees.  This was the Intention of the proposed
regulations.  EPA requires closure plans, and considers them instrumental
to an adequate closure.  This requirement is explicit 1n 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 specifically state  that closure
should be completed within the time specified 1n the approved  closure plan.
This was Intended in  the proposed regulation and Is clarified  1n these
regulations.  At any  point in the closure schedule that there  is a
default, the Regional Administrator could resort to the financial assurance
instruments  (trust fund, bond, etc.) to ensure closure.  These requirements
                                    26

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are being reproposed.   The Regional  Administrator  could  also  bring  suit
to compel the owner or  operator to  perform.   It  fs 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.
Synopsis of S265.U3{b) of the  Interim Status Regulations
     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 1t will take  longer than six  months
to close the facility ar|d that  the  longer period poses no  threat  to human
health or the environment.
Text of S265.113(b) of  the Interim  Status Regulations
                        3
§265.113 Time allowed for closure
     (b)  The owner or  operator must complete closure activities  1n
          accordance with, the approved closure plan and  within six
          months after  receiving the final volume  of wastes.  The
          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  significant
          threat to human health and the environment from  the unclosed
          but Inactive  facility.
DISPOSAL OR DECONTAMINATION OF  EQUIPMENT
Synopsis of the  Proposed Regulation  and  Rationale
     The proposed regulation, §250t43-7(h), required operating equipment
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
                                   27

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little sense to mandate treatment for the waste,  and not reirove  the
residues from the treatment and disposal  equipment when  they are no  longer
used.
Comments and Response
     The conmenter on this subsection s.tated that the regulation and the
Preamble were Inconsistent.  The regulation said that equipment must be
.disposed of or decontaminated, while the Preamble said dismantled and
decontaminated.  EPA agrees that dismantling is exoensive and unnecessary.
The final Preamble is consistent with the regulations.
Synopsis of §265.114 of the Interim Status Regulations
     The interim status regulations require that facility equipment be
properly disposed of or decontaminated by removing hazardous wastes and
residues during closure.
Text of §265.114 of the Interim Status Regulations
§265.114  Disposal or decontamination of equipment
     When closure 1s completed, all facility equipment and structures must
have been properly disposed of, or decontaminated by removing all hazardous
waste and residues.
CLOSE-OUT AND CLOSURE NOTIFICATION
Synopsis of Proposed Regulations and Rationale
     The proposed regulations, §250.43-7(d) and  (e), required facilities
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 Hays b«fore it
was completed and landfill operators 180 days before completion.
                                    28

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     EPA required these notifications because of the extreme Importance
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, Analysis and Response
     Several corimenters stated that EPA need not be notified before closure.
EPA disagrees, because proper closure 1s extremely Important to minimize
future environmental problems; the Regional  Administrator 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 closure so that  EPA can expedite the release of
the closure trust funds or other financial  requirements.
                    t
     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  this  facility (§265.112(c)), 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,  1n 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 hazardous waste facilities.
                                   29

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CLOSURE AND POST-CLOSURE CERTIFICATION
Synopsis of Proposed Regulation and Rationale
     The proposed regulation, §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
certificaion after the post-closure period.
     EPA reaulred that an engineer certify closure to help ensure that
closure compiled with the closure regulations.  Closure and post-closure
certification were to serve as the trigger mechanises for the release  of
closure and post-closure trust funds.   They were therefore instrumental  in
the financial requirements,
Comments, Analysis and Response
     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 paoerwork,  Furthermore,
since the post-closure regulations require monitoring and routine maintenance,
EPA should know if a site is not properly closed at the end of the neriod,
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 requirement
explicit in the final regulations.
                                    30

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     Another conunenter said that certification  should  also  he  submitted
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 1t Is hard  to determine  the  overall
scope the professional certification would need to  address.  Since the time
period for closure can be lengthy, and since  the  certlfler  would likely
have little first-hand knowledge of previous  operations,  certification
would reoulre a long Investigation by the engineer.
     EPA does not agree with these conclusions.   In the final  regulation,
the engineer must certify closure In accordance with the regulation 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 closure was performed  according tq
these plans.  This would require a final  Inspection, and might require
several Interim Inspections during closure to make  sure work  1s proceeding
according to plan,
     The Agency made one additional  change to this  section  which requires
that the registered professional  engineer be Independent of the owner or
operator;  that Is to say that he not be In the direct  employ  (1,0,,  on the
payroll) of the owner or operator or the owner or operator  himself,   The
Agency realizes that some owners  or  operators have  registered professional
engineers on their staffs.   And  1n cases where there Is doubt, their
objectivity may be unconsciously colored by their loyalty to  their employer.
Since the Agency 1s relying to a fair extent on  this certification for.
                                    31

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assurance that closure has been conducted properly,  1t seems  prudent to
ensure his objectivity 1n so far as 1s practical.  The Agency believes
that this change will  Impact primarily the larger  companies who  are the
ones most likely to have registered professional engineers on their staff.
Smaller firms, In most cases, would have had to contract with a  registered
professional  engineer In any case.
Synopsis of §265.115 of the Interim Status Standards
     After closure, the owner or operator and an Independent  registered
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.
Text of S265.115 of the Interim Status Standards
§265.115  Certification of closure
                                  *
     When closure 1s completed, the owner or operator must submit to  the
Regional Administrator certification both by the owner or operator and by
an independent registered professional engineer that the facility has
been closed in accordance with the specifications  in the approved closure
plan.
NOTIFICATION TO MEW OWNER OR OPERATOR
Synopsis of Proposed Regulation 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 transfer, many closed sites would  be
transferred to avoid both the expense and work required by the regulation.

                                    32

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Sio.p& £he tiwe period for closure can be lengthy, and since the cer-

tifier wou!4 UHeiy have little  fir5f-han4 knowledge of previous

operational  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 fplans and procedures and be satisfied that the clo-

sure was performed according to  these plans»  This would require a
               v                            •.
final inspection;, and might  require several interim inspections

during closure tp make sure  work is proceeding accordinj 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 clomre 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

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Text of §265.12(b)  of the Interim Status  Regulations

§265.12(b)   Required notices

     (b)  Before transferring ownership or operation  of  a  facility during
          Its operating life, or of a disposal  facility  during the post-
          closure care period, the owner or operator  must  notify  the new
          owner or operator 1n writing of the requirements  of this Part
          and Part 122 of this Chapter.  [Also see §122.23{c) of  this
          Chapter.]
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POST-CLOSURE CARE
Synopsis of Proposed Regulation and Rationale
     The proposed regulation, §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 proposed
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 tfce Preamble discussion of "Special  Wastes;"  the "special
wastes" category Is being deleted from  the final  regulations.   All  wastes,
1f hazardous under Part 261  if land disposed, must be  managed in accordance
with these post-closure care requirements.^
     Another commenter said  that this paragraph could  be interpreted to
require a watchman for 20  years  as  a part  of  post-closure  security.   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 1f all  security
devices must be maintained post-closure as  per this  subpart."   The  conmenter
suggested "allowing security devices  to be  discontinued after  closure of
the site if approved by the  Regional  Administrator for compatibility with
future site usage."
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     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 adequately
protect the public even where access 1s openly allowed.  Thus, control
of access is not normally needed after closure.   Therefore,  the Agency
has modified the regulation to require security  provisions  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 §265.117(a)(b) of the Interim Status Regulation
     During interim status, owners or operators  must provide post-closure
care.  This care consists of (1) monitoring and  reporting  and (2)  main-
taining monitoring and waste containment systems.  Maintenance  of  security
systems is at the discretion of the Regional Administrator.
Text of §265.117(aHb) of the Interim Status Regulation
§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
          (2)  Short  term, incidental  access by the public or domestic
               livestock  may pose a  hazard to human health.
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EOUIPHENT ANP PROVISIONS FOR POST-CLOSURE GROUND-WATER MONITORING
Synopsis of Regulation and Rationale
     This subsection, 525Q.43-7U), required that monitoring equipment
and arrangements for post-closure monitoring be available at the completion
of closure,  EPA originally felt this was necessary to ensure that moni-
toring could begin without delay.
Comments, Ana1ys1sT and Response
     One commenter, who suggested that perpetual  monitoring was  necessary
for facilities, suggested that this subsection be modified to reflect
a perpetual 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 oaragraph 1s redundant.
     In the proposed regulation,  paragraph (n)  requires post-closure
monitoring.  In the final  Interim status regulation,  §265.117(a)(l)
requires post-closure monitoring.   The Agency  does not feel  it necessary
to explicitly require equipment and arrangements,  1n  an additional paragraph,
as these requirements are  clearly  mandated in  S265.117(a)(l).  Further,
facilities are required to conduct much  of the same monitoring during
site life as during post-closure.   Thus  the equipment will  already ba in
place.
POST-CLOSURE PERIOD AND EFFECTIVENESS  AND  APPROACH TO POST-CLOSURE REGULATION
Synopsis of Proposed Regulation and Rationale
     The proposed regulation,  $250.43-7(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
                                    37

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if the owner or operator could demonstrate that the 2fl-year period was
unnecesary.
     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 approach.12
     Since predicting pollutant migration was not yet practical, the-
Agency concluded that the next best control strategy would be to maximize
containment, limiting the release rate of contaminants to negligible
levels.  In  the proposed regulations, §250.45-2, the Agency develooed
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 contam-
inants did escape, the release rate to the ground water would be so low
that dilution would be adequate to prevent buildup of measurable concentra-
tions.13
                                    38

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     Based on these theoretical designs, the Agency determined  two  needs
or reasons for long-tern monltaring:
     (1)  to determine the sufficiency of the designs,  I.e., whether
          they In fact would prove as protective as the Agency  believed,
          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 containment system.
To satisfy the first need, one would prefer mpnitorlng ad inflnltum or  at
least for more than 100 years.  The second need could presumably be satis-
fled 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 operations.   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 principal would be sufficient to cover annual  monitoring
and maintenance expenses for extended periods after closure,   Even  to  assure
funds sufficient to cover po»t»c1oiure responsibilities for 50 years  requires
                 •
accumulation of principals so  Urge as to be Impractical in the Agency's
view.  Thus, the Agency concluded that 20 years was about the  maxlmun post-
closure care period which could be ensured by the financial responsibility
requirements.  (See the background document on financial responsibility
for a further discussion.)
                                    39

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     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 fn 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 commenters thought  the
20-year period was too short; others thought it was too long.   Some  thought
that the period should be linked to the contents of the  disposal facility,
while others felt that the post-closure period should be linked to perform-
ance standards.
     One group of commenters suggested that the post-closure period  for
                                V
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 forever, these commenters  argue
that the site nust be monitored and maintained forever.   Most commenters
of this persuasion thought the owner or operator of the facility should  be

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 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 burled 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  contain-
 ment systems will fall 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 synthetic liners have a maximum  life of
 25 to 30  years."
      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 technology
 changes in the containment and treatment areas.   Another commenter 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.
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     Another group of commenters  argued that the 20-year neriod was adequate.
They argued that  If no problems occur In the 20-year  oost-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,  1f the owner or operator could denonstrate
continued post-closure care unnecessary.  Others thought that 20 years
should be the maximum period, and less time should be oermitted if the
owner or operator "can demonstrate that less time  1s  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 management."  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 monitoring and maintenance period  to  be consistent with
the Department of the Interior Office of Surface Mining's  10-year require-
ment for strip mines.
     Several conmenters 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." Another  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."
                                    42

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     As a result of the extensive comment, the Agency has Devaluated the
post-closure care Issue, and has decided to extend the post-closure period
from 20 to 30 years.  EPA believes that Us 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  require-
ments, 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 systems would act as early warning systems.
Since It will take longer for contamination migration to reach ground-water
                                                                       4
monitoring points than it would have taken to reach leachate detection
monitoring points, it is necessary to monitor for a longer neriod.
     EPA 1s now convinced that it Is economically practical to monitor
and maintain closed disoosal facilities for 30 years.  Because EPA no
longer requires leachate and air monitoring, owners or operators need not
provide the money for these activities.  In the proposed regulation,
leachate monitoring represented 14 percent and air monitoring 57 percent
of the cost of post-closure monitoring.17  Furthermore, 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
                                    43

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very slow.17   Similarly, heavy metals remain toxic forever, and may be
mobilized unless carefully managed.  Because of the extreme persistence
of some waste, EPA 1s considering asking Congress for some type of national
Insurance, funded by waste 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 designed to cover remedial activity where the owner or operator is not
solvent.  Given the authority under RCRA, EPA believes its regulations
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 regulatory agencies."
Although EPA does not agree that the oroposed 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 post-closure main-
tenance should not be authorized."  EPA believes that the  post-closure
                                    44

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monitoring and maintenance period 1s necessary for two reasons,   first,
for sites which have been properly operated and closed, post-closure
maintenance 1s necessary to assure that the site stays properly  closed.
If the original vegetation dies five 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, regradlng 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
                         f
provides needed insurance against mistakes in facility design and construction
as well as mistakes in these regulations.
     Another comnenter 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 proposed regulation
was anbiguous.  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 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 disposed of in landfills" because
of the long-term threat they pose.   Another said that "landfilling of chemical
                                    45

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wastes  with perpetual  care programs represents only an  Interim solution  to
the problem of chemical  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 ignitables,  reactives, 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 discussion.)
     On the issue of funding of destruction facilities, EPA believes that
the private sector is  fully capable of establishing these programs.   The
Agency  does support, however, development work in these areas through its
Office  of Research and Development.
     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 character-
ization of both the proposed and final regulations.  The Agency intends  to
remedy  this situation by requesting from Congress 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
background document on financial requirements.
                                    46

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     Another comroenter 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 s,aid, that inserting such a clause
into the land records appears to be a natter of local concern and juris-
diction 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 requirements 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 neessary to create a major Federal  regulatory program
to nrotect 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 rqulrements.  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 attendant legal
requirements.  This will prevent him from unknowingly disturbing a site
with, perhaps, tragic consequences.  While the purchaser's use of the land
might be restricted in some respect, such restrictions are fully authorized
                                    47

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by the Act.   Nothing 1n  the Act or the legislative  history  Indicates  that
Congress  intended  to remove controls  from hazardous waste  disposal  sites
whenever  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 ts  Irrelevant.  It 1s evident,  therefore, that rules  governing
hazardous waste  disposal  sftes must apply 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 1t properly  and  follow
post-closure  regulations  and still be responsible for problems  on the site.
The commenter said that  responsibility should end-after  five 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 business 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 liability1"
for hazardous activities  has long been recognized in the law and 1s not
being newly created by these regulations. It should be  pointed out,  however,
that the  Agency's  policy  ts not to penalize  facilities which have acted
responsibly and  in accord with these  regulations by imposing punitive
                                    48

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measures (fines,  etc.)  where problems have  arisen which  could  not  have

been predicted.

Synopsis of S265.117(d) of the Interim Status  Regulations

     The interim status regulations require owners or  operators  of disposal

facilities to provide 30 years of post-closure care.   The  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 oast 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

petitions.  An early decision to reduce the period, where  qause  can be

shown, would"reduce the economic Impact of  the financial regulations.

Text of §265.117(d) of the Interim Status Standards

§265.117  Post-closure care and use of property; period  of care

          (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 demonstratina
               the secure nature of the facility that  makes continuing
               the specified post-closure requirement(s) unnecessary--
               e.g.,  no detected leaks and  none likely to  occur, char-
               acteristics 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 maintenance  requirements
               contained In the facility's  post-closure  plan for a
               specified period of time.  The  Regional Administrator
               may do this 1f he finds there has been  noncomoliance

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               with any applicable standards or requirements,  or that
               such continuation 1s necessary to protect human health
               or the envlronnent.  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 Administrator 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.
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 stipulation would limit
future use of disposal facilities, to prevent any disturbance  of the site
which could cause contaminants to be released.  For example, disturbing
the cap of a landfill  allows liquid to infiltrate the landfill and the
liquid increases leachate generation.   The Love Canal  incident cited earlier
1n this background document shows that disturbing the final  'cover of a
site can lead to disastrous results.1
Comments.  Analysis,  and Response
     One commenter noted that an operator who does not have legal title
to a hazardous waste facility may be legally unable to record  anything
                                    50

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in the land records.  EPA has accordingly revised the proposed language
to make it clear that the owner must record the required notice.   If
such notice is not recorded, the operator will not receive a  permit.
     Another commenter said that a deed stipulation is  not an adequate
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 Incorporated 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 search) that the property  contains a  hazardous
waste site, and that Federal regulations (the stloulafrfons mentioned ahove)
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 he  held to a minimun
during interim status.
     A general area of  comment concerned the future use of  sites.  One
commenter 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
                                   51

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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 unncessary 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 environment.  Thus,
the final  regulations permit disturbing the cover,  liner,  containment
system, and monitoring system if the owner or operator can denonstrate
that it 1s essential to the proposed use of the property and will  not
endanger human health or the environment, or that the disturbance  is
necessary  to reduce environmental  contamination or a threat to public
health.  Once the owner or operator has demonstrated these conditions to
the Regional  Administrator, 1t 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 commentar stated that "specific approval  by the EPA Regional
Administrator of a new use should be required."  EPA does  not agree that
in all  cases the Regional  Administrator should have to approve a new land
use.  If the new land use does not disturb the integrity of the facility,
EPA need not approve the new use.   The Agency,  for example,  does not care
1f a golf course 1s 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 reauire the  Regional Administrator
to approve the disturbance.
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Synopsis of S265.117(c) and §265.120 of the Interim Status Regulations
     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,
                                                       x
post-closure use may disturb the cover, etc., If the disturbance Is both
necessary to the property use and will not 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 hazardous waste
disposal facility and that land use restrictions apply.
Text of S265.n7(c) and §265.120 of the Interim Status Regulations -
§265.117  Post-closure care and use of property; period of care
          (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, 11ner(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.
§265.120  Notice in deed to property
     The owner of the properly on which a disposal  facility is located
must record, in accordance with State  law,  a notation on the deed to the
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       ty  property—or on some other Instrument which  1? normally examined
 during title search—that will  1n 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).
 NOTICE TO  LOCAL LAND  AUTHORITY    '
 Synopsis of  the Proposed Regulation and  Rationale
      The proposed version of §250.43-7(1)  required owners or operators
 of disposal  facilities  to file  survey  plats with the  Regional Administrator
 and the local  land  authority within 180  days  of the completion'of closure.
 These plats  were to be  certified  by a  professional land surveyor, and show
 the type and location of hazardous  waste disposed of  1n 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 location of the
 different  wastes.   If,  for example,  ground-water monitoring during the
•post-closure period detects  heavy metals, and if the  site accepted limited
 quantities of  heavy metals,  knowing  the  location-of these wastes makes
 cleanup easier.  The  location and nature of wastes could also be useful
 in  determining  where  to  sink  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 technology develops
and costs become economical, portions of disposal  facilities might be
"mined" to recover previously abandoned substances.    In this event, the
plat will  provide the Information on where the mining should occur.
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     Finally, the information on the plat 1s Important for local  land
use.  Utility companies routinely Inspect plats when locating riqhts-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 response
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 authority 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 1n  the  event
they need to excavate in the  area.
Comments, Analysis,  and Response
     One comenter pointed out that  the* owner or operator could not prepare
the plat, nor could the surveyor certify the type of hazardous 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 information
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  recording
the certified survey plat.
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     EPA feels that both are necessary as each serves a separate purpose.
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, represents 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 if it is necessary to locate water mains, power lines, etc.
     One comnenter also raised the argument that in order to certify the
plat, the surveyor would have to be present at the site constantly.  In
the final regulation, the surveyor is responsible only for preparing and
certifying the plat, which indicates the location 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 rquirernents 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 site.
     Another comnenter argued that the survey plat shold indicate  only
the location of the primary hazardous wastes.  The Agency disagrees.
Because the plats will be useful in taking remedial actions and in resource
recovery, they should contain the location of all hazardous waste.   Further-
more, the Agency"does not have criteria to distinguish between primary
hazardous wastes and other hazardous wastes.
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Synopsis of §265.119 of the Interim Status Regulations
     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 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  tyoe and  location of waste
disposed of prior to the promulgation of these regulations to the degree
that his records and nemory allow.
     Although no comments were received  on the subject,  the  time  allowed
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  oerformed
quickly and the records of waste location  are supoosed to be maintained
durina site Hfe.  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.   Further,  it  Is  possible that someone  might
need to use the information, even within the  first six months.
Text of §265.119 of the Interim Status Regulations
5265.119  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 the
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Regional Administrator a survey plat indicating the location and dimensions
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 disturbance 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 accordance
with any records he has kept.
COMPLIANCE WITH FINANCIAL REQUIREMENTS
Synopsis of Proposed Regulation
     The proposed regulations, §250.43-7(a), reauired that owners or
operators of hazardous waste facilities comply with the financial require-
ments of §250.43-9.
Comments
     EPA received no comments on this paragraph in the closure regulations.
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 require-
ments is mandated by the financial requirements section.  There is no
reason for closure and post-closure regulations to repeat these requirements.
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POST-CLOSURE LEGISLATION
Comments and Response
     Although it is not relevant to the adequacy of these regulations,
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 comnentsr 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 approach
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 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 site 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.
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     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 Government
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 Agency intended,
then deeding closed sites to the Federal Government will  not significantly
improve this control.  Furthermore, EPA believes that promulgating regula-
tions 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 becomes liable for the sites.  The Agency
currently thinks responsibility is better settled, for the  reasons discussed
above, if the disposer remains responsible during the post-closure peri-od.
     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  oreviously 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,
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so owners could fund these activities^fron 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 responsibilities.   The Agency does not
have the authority to Implement 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 1s accomplished where the  private  sector fails
in Its responsibilities.
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IV.   RESPONSE TO COMMENTS ON INTERIM FINAL INTERIM STATUS  REGULATIONS  AND
     REGULATORY SYNOPSES AND RATIONALE FOR FINAL  INTERIM STATUS  REGULATIONS
                             •
INTRODUCTION
     The regulations setting forth Interim Status Standards  for  closure
and post-closure care applicable to owners and operators of  hazardous
waste treatment, storage and disposal facilities  were promulgated on
May 19, 1980.  These regulations establish under  Part 265, Subpart G,
the reouirenents for closure and post-closure care that facility owners
and operators must meet during the interim status period.  An owner or
operator has "interim status" if he has both notified EPA of his existence
by August 18, 1980 and submitted Part A of the RCRA facility permit
application by November 19, 1980.  This allows the facility  to continue
operating, subject to the  Interim Status Standards.  The owner or operator
then  remains in  interim status until  EPA  takes final administrative action
on Part B of his permit application.
      As discussed in Chapter III of  this  Background Document, EPA modified
most  sections of the proposed  (December 18, 198JD) closure and post-closure
regulations  in  the May  19;  1980  regulations, as  a result of careful
reconsideration  and in  response  to public comments.  Where these comments
and  additional  reflection  persuaded  EPA to substantially change certain
sections  of  the  proposed regulations, the Interim Status Standards under
these sections  were promulgated  on May 19,  1980  as  "interim final"
regulations.   In cases  where no  persuasive comments were received on the
original  proposal and few  changes were made, interim status standards were
promulgated  as  final on  that date.   "Interim final" means that, because
significant  modifications  were made  to some sections, the public was provided
an  opportunity  to comment  on these  modified standards.  (Nevertheless, while
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Interim final,  these  standards  have  the  force  of  final  regulations.)
Following this  second comment period,  some  of  the  interim  final  standards
have been further modified, while  others  remain unchanged.   All  interim
final standards are now  being promulgated as final  regulations.   Those
which were already  final  on Hay 19,  1980  are being repuhlished so that
all final regulations appear together  in  the Federal Register.
     A further  clarification of terms  is  necessary in  order to dispel
some confusion  that has  arisen  between "Interim status"  standards and
"Interim final" regulations.  "Interim status" refers  to the situation
In which owners and operators in existence  on  November 19,  1980 are
permitted to operate  prior to being  issued  permits,  provided they meet
certain minimum standards ("interim  status  standards").  These standards
are to be met without substantial  Interaction  with EPA.   "Gefjeral status
standards" are  Incorporated into a facility's  RCRA permit.   "Interim
final" denotes  a stage  In the rulemaking orocess  in which  standards
(either interim status.or general  status  standards)  are  in  effect hut
open to public  comment  and subject to  change before being  issued as
"final" regulations.
     Accordingly, this  addendum to Chapters I-III  of the Background
Document on closure and post-closure care focuses  on the changes made  to
certain sections of the Subpart 6  regulations  that were promulgated  as
Interim final on May  19, 1980.  Those  sections that were interim final
on that date, as well as those  that  were final, are Indicated below.
     Section 265.110  Applicability,  Final
     Section 265,111   Closure performance standard.  Interim final
     Section 265.112   Closure plan;  amendment  of  plan.  Interim final
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     Section 265.113  Time allowed for closure.   Interim final
     Section 265.1H  Disposal  or decontamination of equipment.   Final
     Section 265.115  Certification of closure.   Final
     Section 265.116  (Reserved)
     Section 265.117  Post-closure care and use  of property;  period of
                      care.  Interim final
     Section 265.118  Post-closure plan; amendment of olan.   Interim final
     Section 265.119  Notice to local  land authority.  Final
     Section 265.120  Notice in deed to property.  Final
     Section 265.121 - 265.139  (Reserved)
     This addendum outlines the principal bases  for the final  regulations
on Interim Status  Standards for closure and post-closure care and is
supolementary to the preamble published in the Federal  Register to explain
the revised regulations.  The format used here generally follows that
employed in explaining the interim final regulations on Interim Status
Standards in the previous section of this document.  This first consists
*
of a synopsis of the interim final sections of the Subpart G  regulations
as promulgated on May 19, 1980.  Next, an exposition of the public comments
addressed to the sections that were interim final is presented.   Then
EPA's analysis and response to these comments, based primarily on concern
for threats to human health and the environment, is set forth.   Last, a
synopsis of each section of the final  regulations appears. The text of
the final regulations appears at the end of the  discussion.
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§265.111  CLOSURE PERFORMANCE STANDARD
     Although this section was promulgated as Interim final in the May 19,
1980 regulations, EPA did not receive any  public conments on it and has
decided to promulgate it unchanged as a  final rule.
§265.112  CLOSURE PLAN;  AMENDMENT OF  PLAN
Synopsis of the Interim Final  Regulation
     In interim status,  owners or operators must develop closure plans.
These plans are reauired to insure that  the goals of §265.111 are net.
The plans nust include (1) descriptions  of how the facilities will  meet
technical closure requirements,  (2) maximum expected waste inventories
during site life, (3) an identification  of steps for decontaminating
equipment during closure, and (4) a schedule for closure showing 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 before the owner or
operator anticipates beginning closure;  then, within 90 days, EPA will
either approve or modify the plan.
     The owner or operator may modify or amend his closure plan.  He nust
modify his plan If changes in  operating  conditions or facility design
would affect closure. The Regional Administrator may require modification
if he reviews a plan and finds it inadequate.
Comments, Response and Rationale for  Final  Regulation
                [Time Allowed for Preparing Closure  Plans]
     Several  comroenters  contended that closure plans should not be required
by November 19, 1980, as specified 1n the  interim final  Interim Status
Standards, out rather by some  later date.   Of these  commenters, some argued
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that allowing six months from the time EPA promulgated  the  regulations  is
too short a tire to adequately prepare closure plans.   Two  commenters
argued that requiring all owners and operators to" develop  plans  by
November 19, 1980 would "impose an unnecessary burden"  on  them and would
be unreasonable except in cases where facilities were  planning to close
shortly after that date.  In these cases, the early closure nossibility
could be handled by reauiring the plan within one year of  the effective
date of these regulations, I.e., by November 19, 1981,  or  180 days prior
to closure, if 180 days before closure is earlier than November 19,
1981.  (The number of such early closings would he limited anyway, according
to these commenters, "since very few owners would go through the process
of notifying and submitting Part A of the permit applications and then
proceed to close the facility.")  In any case, these commenters recommended
all closure plans be required by November 19, 1981.
     Furthermore, they continued, the large size and complexity of some
facilities and the many  other requirements of the regulations makes
preparing  closure plans  by this date difficult, if not impossible.  For
example, another commenter contended that considering specific factors
which must be addressed  in closure plans  for landfills, such as "topograph-
ical studies, ground water elevation determination and geological and
soil profiles involving  soil  borings," will take longer than six months.
This comnenter also proposed  that the date for compliance with unsaturated
zone monitoring provisions for  land treatment facilities be extended to
November 19, 1981  to coincide with the compliance date for installation
of  a ground water monitoring  system under Subpart F, since preparing
closure plans which adequately  account for these ^actors would require
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additional  time.   Finally,  others  stressed that,  since plans are to be
used for the cost estimates which  demonstrate  financial  responsibility,
enough time must be allowed to  carefully  prepare  them.
     EPA agrees  that an  extension  is warranted, and has  extended by
six months  (to May 19, 1981)  the date  by  which owners  and operators of
treatment,  storage and disposal facilities must have closure plans.
     First, the  Agency recognizes  that planning for closure of disposal
facilities  requires considering many factors,  such  as  methods for keeping
wastes safely on site after closure and monitoring  and maintaining the
performance of the waste containment system.   For example,  the owner or
operator of a landfill,  or  a  surface impoundment  to be closed as a landfill,
must consider at least six  specific factors listed  in  the regulation under
§265.310(c) in describing how he intends  intends  to control pollution
migration,  control surface  water infiltration, and  prevent  erosion.  The
owner or ooerator of a land treatment  facility must address how he will
control  migration of the waste and its  hazardous  waste  constituents,
control  the release of contaminated run-off and airborne particulate
contaminants, and comply with the  regulations  controlling foodchain
crops.  In  addressing these,  he must consider  seven factors specified in
the regulations  under §265.280(b).  Consequently, in light  of the complexity
of planning for  closure  of  disposal facilities, EPA now  believes six months
extra time  for preparing plans  Is  warranted,
     This decision reflects the importance with which  the Agency regards
closure  plans.  Hell-developed closure  plans will play a critical  role in
an effective and  smoothly operating hazardous waste management system, and
therefore sufficient time should be available  to  prepare them carefully
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and accurately.   In general, closure plans are extremely important because
they show how a  site can be closed in a way that will  protect human health
and the environment.  More specifically, closure plans are necessary to
enable owners or operators to plan ahead with closure  in mind,  which they
must do if closure is to be accomplished promptly and  efficiently.  Another
benefit of carefully developed closure plans is that,  by making owners or
operators anticipate specific steps that must be taken to close properly,
these plans serve as a check that actual operations at the facility are
proceeding in a prudent and responsible manner that will allow closure
to becone merely a continuous extension of an already  well-run operation.
     Despite the lesser degree of complexity in planning reauired for the
closure of treatment and storage facilities, similar logic for an analogous
extension applies to these facilities.
     Second, the financial requirements will not be effective until Soring,
1981.  An important purpose of closure plans is to form a basis for closure
cost estimates, and thereby determine the required level of financial
responsibility.  The gains to the regulated community  from allowing an
extra six months to prepare these plans, and the benefits to society from
better prepared plans, outweigh the losses from having the plans six
months later, given that the financial responsibility  regulations will
not be effective until then in any case.
     Third, the Office of Management and Budget approved EPA's Part 264
and 265 reporting requirements under the Federal Reports Act on the
condition that EPA extend until May 19, 1981 the deadline by which disposal
facilities must prepare closure and post-closure plans.
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     The Agency,  fn  extending the compliance deadline, rejects  arguments
by comrenters  advocating an extension beyond May 19, 1981.
     First,  in preparino closure plans, owners or operators  are compelled
to anticipate  closing their facilities in an orderly and  fully  satisfactory
manner.  Planning ahead requires operating their sites with  ultimate
closure in mind,  which will help to ensure that current operations are
sound and consistent with effective closure. "Therefore,  the earlier
closure plans  are developed, the earlier they will be able to help owners
and operators  achieve good operating practices.  Furthermore, twelve
months (May  19,  1980 to May 19, 1981) 1s a reasonable amount of time  for
developing closure plans, since most conscientious owners and operators
should already have  at least a tentative Idea of what an  adequate closure
plan should  consist  of, given the specific conditions of  their  facilities.
For example, responsible owners and operators of landfills are  already
aware of relevant topographical and hydrogeological factors  at  their  sites.
In addition, they are in many cases already partially closing their sites
on an ongoing  basis.   Furthermore, the proposed closure retirements  of
December 18, 1978 have provided over 2 years for owners or operators  to
begin planning proper closure activities.
     Second, the  closure plans serve as the basis for cost estimates.
These, in turn,  underlie the financial responsibility requirements.   The
Agency feels that the financial requirements are extremely important  in
protecting human  health and the environment, and wants to implement them
as soon as practicable.  Because-implementing the financial  retirements
requires the closures plans, EPA wants these plans to be  developed as
soon as possible.
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     Third, the me of the Interim status draft guidance document for
closure and post-closure care, coupled with a careful  reading of the
regulation, should provide sufficient information from which to write an
adequate closure plan by May 19, 1981.  This document is now available
from the EPA Regional Offices.
     Fourth, EPA may be compelled to require unexpected early closure,
e.g., if an owner goes bankrupt or a site reaches the end of its life
sooner than expected.  Since closure must be done in accordance with an
approved plan, an owner or operator should prepare a plan at the earliest
possible date.
     Other commenters argued that plans should be required to be prepared
during interim status only immediately prior to closure.  Some commenters
argued that EPA cannot logically justify imposing at present the substantial
time and effort needed to prepare such plans, since they are based only
on interim status rather than final regulations, final performance standards
or permanent standards under Part 264.  Specifically, they argued that
amendments to old regulations or promulgation of new ones would necessitate
frequent revisions of the plans.
     Also, one commenter asserted that since plans will be directly linked
to permit conditions, the requirement to have them should be a condition
of facility permits.  Consequently, this commenter proposed, preparation
                                                                          '•>
of plans should not be required until a facility permit is .Issued, txcept
for facilities closing prior to issuance of a permit but after the effective
date of these regulations (I.e.. November 19, 1980), which should "submit"
a plan at least 90 days before the expected date of starting closure.
Another commenter argued that plans should only be required within one
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year of the anticipated closure, with submission 180 days before, exceot
for facilities closing within one year of promulgation, in which case
they should have plans on the effective date of these regulations.
     EPA disagrees with these comments.  Again, there are two rcajor reasons
for requiring closure plans by May 19, -1981.  These reasons hold irrespective
of whether an owner or operator applies for a permit to operate eventually
"under General Status Standards, or the fact that the compliance deadline
was issued under "interim final1 Interim Status Standards.
     First, to be able to close efficiently and adequately an owner or
operator always needs to plan ahead and operate with closure in mind.
Second, to make sure that the public Is not saddled with financial
responsibility when a facility goes bankrupt or otherwise closes early,
the owner or operator must provide financial assurance for closure, and
the cost estimate upon which this assurance is based must be derived
from the closure plan.  Therefore, these plans need to be available as
soon as possible during Interim status.
     On the question of facilities not planning to close before permittinp,
the Agency agrees with one commenter's premise that when a permit is issued
to a facility, elements of the closure plan for that facility will, in
large part, be directly related.to conditions contained in the permit
insofar as the permit conditions change the way the facility is operated
or closed, and has addressed this point In Chapter III of this Background
Document.  However, the Agency does not share the commenter's conclusion
that closure plans therefore should generally be required only as a
condition of the initial RCRA permit.  Some facilities will close before
permitting so that closure plans, keyed to the requirements of the interim
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status regulations are needed.  In the case of facilities that will  not
close until sometime after they have started operating under a permit,
1t 1s necessary for then to have plans available well  before the permit
process begins.  During interim status, owners and operators of these
facilities must be able, at the earliest possible date, to provide closure
cost estimates for financial assurance and to ensure that,  by operating
with closure in mind, if some contingency should make premature closure
necessary, 1t could be carried out effectively.  Closure plans could, of
course, always be changed under Part 264 general status, if conditions
require it later on, either before or after permitting,
                         [Closure Plan Schedule]
     Another comroenter questioned the wisdom of requiring specific dates
to be included in the closure plan 'as part of the schedule for final closure,
unless the Intended life of the facility can be predicted, as for landfills.
Since storage tanks or incinerators, if properly designed and maintained,
may be used indefinitely according to this commenter, they might not
have a predictable  intended life.  Consequently, plans based on the
intended  life for such facilities would be meaningless; not until closure
is actually scheduled could realistic dates be established.  Therefore,
this commenter suggests that Section 265.112(a)(4) should be amended "so
that planning for intended  life applies only to facilities that are
designed  and operated with  such a life as part of the design and operating
considerations."
     EPA  largely agrees and has shifted the basis for scheduling from
anticipated dates to the estimated total time required for closing the
facility  and the estimated  time required for intervening closure activities.
The only  date still required  1s for the expected year of'closure.  This date
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has been retained  as  necessary  for meeting the  financial  responsibility
requirements,  (e.g.,  trust  funds must  be built  up over  five years  or by
the expected date  of  closure, whichever cones first), and as a trigger
for administrative action,  i.e., to notify the  Agency in  advance that it
should begin overseeing  closure at a certain time in the  future.  EPA
thinks that a  schedule for  final closure and intervening  closure activities
primarily based on the length of time  for various activities is more
realistic than one based on specific dates, since this  revised approach
presupposes less accurate foresight.
     In accordance with  this change, EPA has also added a provision, under
265.112{b), that requires an owner or  operator  to amend his closure plan
whenever there Is  a change  in the estimated year of closure of his facility,
Previously, an owner  or  operator only  needed to amend his closure  plan
whenever changes in operating plans or facility design  affected the closure
plan.  In the  case of facilities such  as storage tanks  and incinerators
for which, as  one  commenter stated, site life is difficult to predict until
closure is actually scheduled,  the closure plan would have to be amended
only when the  year of closure could be realistically estimated.
     Two comrnenters criticized  the requirement  to provide a schedule for
final closure  In the  closure plan which would incorporate specific dates
for various steps  in  the closure process.  One  of these suggested  that it
would be more  appropiate for a  facility to Include  the  anticipated date
when wastes will no longer  be received in Its Annual Report rather than  in
its closure plan.   The Agency does not believe  such a change would serve
any useful purpose; on the  contrary, Including  an anticipated schedule
in the closure plan is an integral component of the plan  and «ust  remain
part of it.
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     Given the possibility that the schedule for closure and other elements
of a plan may change, the Agency is waking explicit in  the  final  regulation
that the copy of the closure plan the owner or operator is  required to keep
at his facility must include revisions to the plan  as well.
                       [Submission of Closure Plan]
     One commenter suggested that submission of closure plans should be
required only 90 days before closure begi-ns, rather than at least 180
days before.   Likewise, the commenter said that the Regional Administrator
should modify, approve, or disapprove the plan within 30 days of receipt,
rather than within. 90 days, as stated in the interim final  regulations.
     Another commenter speculated that owners and operators might not prepare
closure and post-closure plans properly.  This commenter doubted that
these closure plans would be realistic or accurate in their amounts or
methods for closure or care in the absence of certification by an indeoendent
professional  civil engineer or submission for review and approval to the
Administrator, Regional Administrator or his desianee.
     Rather,  argued this commenter, the accuracy of these plans is left
entirely up to the owner or operator.  In such a situation, there would
be a tendency to underestimate the extent of care required.  Addressing
§265.112(c) this commenter said:  "If the owner or operator is only required
to submit his closure and post-closure plans within 180 days before date
of closure to the Regional Administrator, it may then be too late to correct
any shortcomings in the amount provided by the owner or operator ..."
The commenter advocated additional review of these plans before facility
operations begin, and periodically during the time financial security
arrangements  are being made.
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     For administrative purposes, the Agency believes closure plans need
to be submitted well in advance of 90 days before closure - at least 180
days before  - since the Regional  Administrator would in some cases need
a full 180 days to review a plan adequately, publish a notice of the
plan, provide adeouate tire for the public to submit written comments,
review the comments, hold, a public hearing, if necessary, decide whether
the closure  plan is adequate or requires nwdifi cation, and if unacceptable,
give the owner or operator tine to submit a new plan and accept or modify
this plan as the final approved closure plan.  Therefore, as rewritten
in the final regulation, 5265.112(c) grants the Regional Administrator
180 rather than 90  days, as in the interim final regulation, in which to
approve a closure plan.  EPA believes 180 days is a reasonable amount of
time for this  review  and aoproval process, but in agreement with the
previous commenter's  argument that even 180 days may not be sufficient'
to guarantee that plans are well prepared, has added the following provision
to the regulation.
     Under §265.74(a)  of the Interim Status Standards, the Regional
Administrator  is generally authorized to request any records, including
plans, from  owner or  operators.  Based on this Section, EPA is specifically
authorizing  the Regional Administrator to request, at his discretion,
closure plans  to be submitted to EPA at any time during  the active life  of
the facility,  or to Inspect or copy plans during site inspections because
the Agency Is  concerned that owners and operators night  do a less than
adequate job In preparing then.  Indeed, all Regional Administrators
are urged to audit  a  statistically  significant sample (e,g, 5%) of plans
to assure adequate  preparation by owners or operators.   However, requiring
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all plans to be sent in to EPA would not result in iniproved Agency review
of plans, since EPA does not currently have sufficient resources to
examine all the plans if they were to be sent in.
     According to this regulation, a Regional Administrator could collect
a small random sample of plans, and from this sample could determine
with accuracy the proportion of adequate plans.  If a large, significant
proportion of closure plans were inadequate, EPA would have decide whether
to reprogram resources from other programs or other activities under RCP.A
to enforce against inadequate plans, or perhaps to seek additional
resources.
     The Agency does not accept the argument that requiring a professional
engineer to certify the plans would produce better plans.  In fact, most
of the key elements of the plan are the kinds of things that an engineer
could not meaningfully certify.  As an example, the plans require the
owner or operator to "estimate his maximum inventory of wastes," and to
"identify the maximum extent, of operation which will be unclosed." Factors
such as  these are matters of intent, rather  than fact, and as such are
uncertifianle.   (In contrast, certification of closure under §265.115,
involves a professional engineer's determination of the fact that a
facility has been closed in accordance with an approved closure plan.  A
prudent  owner or operator would, however, probably want an engineer to
certify  partial closures; reference to such certifications would orovide
acceptable evidence on which part of an engineers certification of final
closure would be based.)
     Another commenter assailed the validity of EPA's requirement of
closure  plans  for  treatment operations, such as a two or three cuhic foot
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capacity filter press.   Requiring  closure  plans  for such an aoparatus,
which is used for sludge dewatering in  order to  reduce waste volume
before shipment off-site,  "creates  an unnecessary  regulatory burden on
members of the EPA staff,  as well  as ourselves," wrote tine commenter.
     EPA appreciates  the logic  of  this  comment - that waste volume
reduction should be encouraged  rather than penalized - but believes
that, since ope'rations  of this  sort are so small and relatively simple,
the effort needed to  develop closure plans for then is minimal.  This
would not impose an undue burden on either EPA or  members of the regulated
community.
Synopsis of §265.112  of the Final  Interim  Status Regulations
     This section differs from  the  interim final regulation in several
respects.  First, the closure plan  need not be prepared and on hand at
the facility until six  months after the effective  date of these regulations,
rather than on that date as in  the  interim final version.
     Second, the interim final  regulation  stated that the closure olan  must
include an estimate of  the maximum inventory of  wastes in storage ^r in
treatment at any given  time during the  life of the facility.  The final
regulation modifies this language  to "wastes in  storage and in treatment"
to encompass all wastes that could  be at a facility.
     Third, the plan  must include  an estimate of the expected year of
closure and, at a minimum, a  schedule of the total time required to
close the facility and  the time required for intervening closure activities
which will allow tracking of  the progress  of closure.  (For example,
estimates of the time required  to  treat and dispose of all waste inventory
and of the time required to place  a final  cover  must be included.)  This
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contrasts with the interim final requirement that specific anticipated
datei for various steps in the closure process and for final  closure
be listed in the plan.
     Fourth, an owner or operator is now required to amend his closure
                                 ft
plan whenever there is a change in the expected year of closure of the
facility.
     Fifth, the owner or operator must include all revisions  to his
closure plan in the copy of the plan that he keeps at the facility.
     Finally, the procedure by which the Regional Administrator approves
closure plans has been modified in the final regulation.  The interim
final regulation had  required the Regional Administrator to provide the
affected public with  an opportunity (through a newspaper notice) to submit
                                   >
written comnents on closure plans.  The final regulation authorizes him
also to grant a request for a public hearing .or provide one at his own
discretion, whenever  such a hearing might clarify one or more issues con-
cerning the plans.  The Regional Administrator must give public notice
of a hearing at least 30 days before the hearing.
     The interim final interim  status regulation had provided a 90-day
period for  approval or disapproval of the closure plan, but did not
specify what happens  if the Regional Administrator disapproves the
plan.  In  the  final interim status regulation, the Regional Administrator
may  approve, disapprove or modify the plan within 90 days of  its receipt.
If the Regional Administrator disapproves the plan, the owner or operator
is allowed  another 30 days to rework his plan; otherwise, he must accept
the  Regional Administrator's modification,  if applicable.  The owner's  or
operator's  revised plan is then  again reviewed for approval or modification
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within 50 days.   If the Regional Administrator makes  any changes to the
plan this time,  the modified  resubmitted  plan becomes the operating,
approved closure plan.
§265.113 VTIME ALLOWED  FOR CLOSURE
Synopsis of §265.113 of the Interim Final  Interim Status Regulations
     In the interim final interim status  regulations, the owner or operator
must follow the  plan, treat,  remove from  the site,  or dispose of on-site,
all hazardous wastes in storage or in  treatment, 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 than six months  to close the facility and that
the longer period poses no threat to human health or  the environment.
Comments, Response and  Rationale for Final Regulation
     Several  commenters claimed that the  90-day tine  period for completing
treatment, disposal  or  removal of wastes,  from treatment and storage
facilities is too short,  and  is arbitrary  and unsupported by scientific
data or hazardous waste management experience.  The commenters stated
that this period is  unrealistic for certain types of  wastes.  For example,
one commenter claimed that phosphatic  clay settling areas would take
more than the alloted 90  days from final  receipt of wastes to complete
settling.  An analogous argument was put  forward for  "slimes" disposed
of In surface impoundments.
     One commenter emphasized the impracticality of removing all  hazardous
waste from facilities such as utility  boilers within  this time frame.
Since "utility boilers  may be considered to be 'thermal  treatment facilities'
                                       *
when used to thermally  degrade certain wastes, such as metal cleaning
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solvents," this commenter concluded that they would,  under a rigid application
of §265.113{a), necessarily have to shut down after 90 days upon discontinuing
their 'waste treatment' function in order to remove even minor 'waste
treatment1 residues, regardless of their ability to otherwise continue
operating.  "Even if a boiler were discontinuing all  operations it may
not be feasible or appropriate to remove all hazardous waste residues
within 90 days, as required by Sections 265.113(a) and 265.381."  This
commenter argued that "sealing" and "retiring it in place" until it
could be cut up for scrap might require more than 90 days, and removing
all ash and residues from such a physically complex large boiler could
be accomplished within 90 days only at "great and unreasonable expense,"
if at all.  Another factor mentioned by commenters as militating against
the 90-day period for treatment, removal or disposal  of wastes on-site
was the unpredictable availability of third party resources, such as
transportation of.wastes off-site.
     To compensate for these alleged inadequacies, commenters recommended
that flexibility be built into §265.113{a) (as in §265.113(b), which
governs completion of closure activities) to permit the Regional Administrator
to lengthen the period from receipt of Final wastes to their disposition
beyond 90 days, if necessary to allow better hazardous waste management and
closure practices.  Such lengthening would be appropriate, the commenters
continued, if more than 90 days were needed to deal with problematic
wastes and to secure adequate resources for their ultimate treatment,
removal or disposal on-site.  They concluded that the public would still
remain protected under these circumstances by making approval of a longer
                  •
closure period contingent upon an owner or operator demonstrating that.
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steps necessary to eliminate  any  significant threat to  human health and
the environment have  been  taken.
     Two conmenters considered  the  periods  arbitrary,  despite the Regional
Administrator's discretion to vary  the  six-month  time  period for completion
of closure, because "the mere establishment of  such periods will tend to
make them virtually mandatory in  all  cases." Finally,  two commenters
suggested that specific time  periods  for final  treatment and closure be
replaced by discretionary  time  periods  or be stipulated on a case-by-case
basis, depending on the information in  a facility's closure plan.
     EPA agrees that  the 90-day period  for  the  treatment,  removal or disposal
of wastes may be too  short for  some types of wastes,  for reasons expounded
in these comments. EPA has therefore modified  §265.113(a) to accord with
§265.113(b),  in order to explicitly aive the Regional  Administrator parallel
authority to  approve  a longer period.   As in §265.113(b},  the condition
of approval is the facility owner's or  ooerator's demonstration (1) that
the planned activities will necessarily take him  more  than 90 days to
complete and  that (2)  he is taking  all  steps necessary  to  eliminate any
significant threat to  human health  and  the  environment.
     EPA rejects the  recommendation of  some commenters  that these periods
be stipulated according to information  in specific closure plans.  The
90-day and six month  periods, together  with opportunities  for approval
of longer periods, are reasonable standards for most  situations, especially
for landfills, and are relatively simple to implement.   Replacing this
                                                                    •
standard by a case-by-case approach is  unnecessary and  administratively
cumbersome.  EPA prefers that particular owners and operators needing an
extension make an affirmative demonstration of  why final waste treatment,
removal  or disposal would  take  longer than  90 days or why  closure would

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take longer than six months.  The claim that these periods would tend to
become mandatory is belied by the ample opportunity available to owners
or operators to affirmatively demonstrate their need for an extension.
     EPA has also added language to allow the Regional  Administrator
to delay final closure where an owner or operator has begun closure
but another person desires to reopen and operate the facility.
Synopsis of §265.113 of the Final Interim Status Regulations
     In the final interim status regulations, owners and operators must,
within 90 days after receiving the final volume of hazardous was-tes, treat
all hazardous wastes in storage and in treatment, or remove them from the
site, or dispose of them on-site in accordance with the approved closure
plan.  The interim final regulation had specified wastes in storage 0£ in
treatment.  Since facilities both treat and store wastes, this change was
made to cover these cases.  Section §265.113(a), parallel to §265.113(b),
allows the Regional Administrator to approve a longer period under
§265.112(d) §265.112(d) for final waste treatment, removal or disposal  if
the owner or operator can demonstrate that:  (1) the required or planned
activities will, of necessity, take him longer than 90 days to complete, and
(2) he has taken all steps to eliminate any significant threat to human
health and the environment.  Finally, the Regional Administrator may
approve a longer closure period (including a long-term deferral of final
closure) to allow a person other than the owner or operator to recommence
operation of the site.
§265.114  DISPOSAL OR DECONTAMINATION OF EQUIPMENT
     This Section was promulgated as final in the May 19, 1980 regulations.
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§265.115   CERTIFICATION OF CLOSURE
     This  Section was  pronulgated as  final  in the May  19,  1980  regulations.
§265.116  (Reserved)
§265.117   POST-CLOSURE CARE AMD USE OF PROPERTY; PERIOD  OF CARE
Synopsis  of §265.117 of the Interim Final  Interim Status Standards
     Post-closure care requirements apply  only  to disposal facilities.
Post-closure care consists of at least (1)  monitoring  and reporting,  and
(2) naintalnlng monitoring and waste  containment systems.   Maintenance  of
security  requirements  may also be required where appropriate.
     The  Interim final Interim status regulations require that  post-closure
use of disposal facilities generally  must  not disturb  the final cover,
Hner(s),  or other  components of the  containment or monitoring  system.
However,  post-closure  use may disturb the  cover, etc., If the owner or
ooerator demonstrates  both that the disturbance is  necessary to the property
use and will not increase the potential  hazard  to human health  or the
environment.  The cover, etc., may also  be disturbed if the disturbance
is necessary to reduce a threat to human health or  the environment, such
as a remedial action.
     The Interim final Interim status regulations require owners or operators
of disposal facilities to provide 30  years of post-closure care,  Tha owner
or operator may petition 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 require-
                     •
ments be  continued for a specified time  period  past 30 years.   An owner
or operator or the public may  request ah extension  or  reduction of the
post-closure care period, not more often than once  every five years.  This
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last provision was added to Unit the frequency and thus the proliferation
of similar petitions.  An EPA decision to reduce the post-closure care
period, where cause can be shown, would reduce the economic impact of
the financial regulations.
Comments, Response and Rationale for Final Regulation
     One commenter questioned whether the basic requirements for post-closure
care are sufficient to guarantee compliance with the closely associated
financial requirements.  Specifically, this commenter argued that "since the
least  required for post-closure care is (1) ground-water monitoring and
reporting, and (2) maintenance of monitoring and waste containment systems,
such a minimum requirement could, as often happens, become the maximum
requirement.  We expect that the hazardous waste management industry
will use only those two criteria in developing the cost estimates that
are the basis for the closure and post-closure financial arrangements."
     EPA recognizes that  requiring only minimum post-closure care activities
could  result in owners and operators developing insufficient post-closure
cost estimates.  Ostensibly, the above commenter is concerned that, because
EPA will not review closure and post-closure plans during interim status
until  180 days before an  owner or operator expects to begin closure, there
would  not be enough lead  time to rectify  plans with minimal or inadequate
cost estimates, and consequently, to gather sufficient funds for proper
closure.
     However, EPA believes several constraints will operate to mitigate this
"possibility.  First, during Interim status, as well as later on during
aeneral stauts, facility  owners or operators must state their cost estimates
for closure  and, in the case of disposal  facilities, for annual post-closure
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care in an  annual report, as required under §255.75(g).  The Regional
Administrator could then discern any discrepancies between  these  cost
estimates and what he knows to be the conditions at a particular  facility
which might signal potential problems with financial assurance.
     Second, as  discussed with respect to closure plans  under  §265.112,
the Regional Administrator may request an owner or operator to senH in
his post-closure plan at any time during the active life of the facility,
or may review plans during site inspections.  Although most of the plans
requested would  be selected randomly, a Regional Administrator who is
skeptical that the cost estimate for post-closure care contained  in a
particular  facility's annual report might be Inadequate  could  review the
                                    •
owner's or  operator's post-closure plan.  Since this estimate  is  based
upon this plan,  the Regional Administrator could thereby confirm  or
dlsconfirm  his suspicions of unsound financial assurance for post-closure
care at that facility.
     In this manner,  the Regional Administrator will be  able to identify
cases of inadequate preparation for financial responsibility for  post-
closure care early enough so that they can be corrected  and sufficient
funds can be made available before closure begins.  As final arbiter
of whether  the method proposed in the post-closure plan  for meeting the
post-closure care requirements 1s practicable, and correspondingly,
whether these requirements  have been adequately addressed  in rendering
realistic cost  estimates  for financial responsibility, the  Regional
Administrator in effect determines  1f an owner's or operator's Inter-
pretation of 'minimum'  requirements as 'maximum1 ones  1s acceptable.
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     Third,  assurance is also provided in the final  regulation against
the preparation of weak post-closure cost estimates  by addition of the
requirement that owners or operators must amend their plans whenever
events occur during the active life of the facility  or during the post-closure
care period which affect the plan.
     (Inadequate cost estimates for closure and post-closure activities
should be minimized by EPA's review of post-closure  plans as part of the
permit process, for general status, which should occur before most disposal
facilities close.)
     Although no comments we're received on §265.117(b) of the interim
final regulation, EPA has made a small but significant change to one of
               »
the provisions of this Section.  The interim final  version had empowered
the Regional Administrator to maintain security requirements during the
post-closure care period when "short term, incidental access by the
public or-domestic livestock may pose a hazard to human health."  The
final regulation omit the words "short-term, incidental," which modify
                           •
"access by the public," since long-term access could also result in harm
to human health, e.g., if erosion  occurs.
     The major complaint expressed in several comments on §265.117
concerned the length of the post-closure care period under paragraph (d).
In preparing responses to these comments, EPA realized that §265.117(d)
of the interim final regulations was incomplete and possibly confusing
to some readers.  As a result, the Agency has rewritten this Section to
enhance its clarity and comprehensiveness, while retaining its basic
concepts and procedures.  EPA has  also restructured this Section within
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Subpart G  by  shifting most of 1t into §265.118 in the  final  regulations.
        •
This change nakes §265.118 on post-closure plans more  consistent with
§265.112 on closure clans.
     The main purpose of this restructuring is to outline more  clearly
and logically the ways in which the post-closure care  requirements  and
the duration  of  the post-closure care period specified in the post-closure
plan may be modified, and to elucidate the processes,  especially the
petition mechanism, by which these modifications nay be effected.   In
short, It  is  intended that by assimilating the core of the interim  final
§265.117(d) to the final §265.118, EPA can more forcefully make the
point that any modified post-closure care activities must be in accordance
with modifications to the post-closure plan as specified in §265.118, and
indeed are required as a result of these plan modifications.  All comments
addressed  to  §265.17(d) are discussed under "Comments, Response and
Rationale  for the Final Interim Status Regulations" for §265.117.   However,
a further  explanation of specific changes to §265.117(d) appears in the
                        •
"Synopsis  of  §265.118 of the Final Interim Status Regulations."
     The post-closure period applies only to disposal  facilities; treatinent
and storage facilities are not subject to post-closure care requirements.
     Some  commenters argued that the oost-closure care period of 30 years
is too long and, hence, that the regulation as presently written is burden-
sone and Inflexible.  They argued that a much shorter  post-closure  care
period would  be  appropriate for the majority of hazardous waste disposal
facilities.
     Contending  that a typical hazardous waste management facility
Is an on-slte disposal facility ancillary to an industrial operation, one
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commenter concluded that, after closure, ft would oose little threat to
human health or the environment.  Among the reasons cited in support of
this claim were that "such facilities Handle only a limited number of
waste streams, their wastes are managed by knowledgable persons in close
proximity to the point of generation, and the measures spelled out in
their closure plans will further reduce any residual  risk during the
post-closure period." For all but larger facilities or facilities that
handle extremely hazardous wastes, these comnenters recommended,  "a
minimum of 5 years post-closure care" as an alternative to the 30-year
period of care.  Longer periods could then be required in individual
permits, these commenters proposed, depending on whether site-specific
or waste-specific information indicated a threat was  poseri to human
health and the environment.
     EPA accepts the argument that 30 years of post-closure care may not
be necessary for some disposal facilities but believes this should be
specifically demonstrated on a case-by-case basis.  The Agency reaffirms
its conviction that 30 years is usually a reasonable and necessary amount
of time for requiring post-closure monitoring and maintenance.  The rationale
for the general requirement for a 30-year period, with flexibility for the
Regional Administrator to lengthen or shorten it, has been delineated in
Chapter III of this Background Document.
     However, this rationale can be recapitulated as  follows:  the typical
disposal facility is a landfill or a surface impoundment closed as a landfill.
EPA firmly believes it will take 30 years in most cases to determine whether
leachate is controlled.  Indeed, in many cases,  more  than 30 years will  be
required to ascertain the efficacy of monitoring and  maintenance reauirements,

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and for these cases the Regional Administrator will need  to  extend  rather
than shorten the post-closure care period.  The necessity for  requiring a
period of care longer than 30 years in many cases is demonstrated by  the
fact that the movement of leachate is gradual and subtle.  Hence, its
effects are often latent, and might not manifest themselves  until after
30 years,  despite continuing maintenance care and monitoring operations.
Even for "knowledgable persons" at facilities with a "limited  number  of
waste streams," hydrogeologic surprises are comnonplace.
     Two conmenters opined that the 30 year post-closure  care  period  is
too rigid because the "detailed requirements found in  the petition  process,"
through which the period can be altered, "will make it extremely difficult
to shorten the post-closure care period through this vehicle."
     Similarly, another charged that "forcing a great  many smaller
facilities to pursue the costly and time-consuming petition  mechanism in
order to escape the rigid 30-year reauirement is unreasonable when  it is
clear that many of these facilities should not be subject to those  require-
ments in the first place."  As an alternative, these commenters urged
EPA to tailor the length of post-closure care periods  to  individual
facilities, without imposing the burden of the petition mechanism,  which
they alleged would require owners and operators to submit thousands of
formal petitions.  The commenters suggested this could be done by requiring
"an estimated post-closure care period to be Included  in  the post-closure
plan, along with a detailed explanation of why this estimated  period  is
appropriate for the site-specific, waste-specific case."   They further
argued that since an estimate of the post-closure care period would
become, in contrast to provisions under the interim final  regulations,
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an integral  part of the post-closure plan, any new Information indicating
the need for a longer period could be accounted for merely by revising
the estimate 1n the plan.  Finally, these commenters recommended adjusting
particular requirements, such as the length of tine financial assurance
or ground-water monitoring must be maintained, to meet site-soecific
conditions under individual permit requirements, including those conditions
contained in an approved oost-closure plan.
     EPA finds these comments unconvincing in several  respects.  The
crux of these comnents  seems to be that the petition mechanism, being
the only method by which owners or operators may request a modification
of requirements in their nost-closure plans, is burdensome and inflexible
because the standard 30-year post-closure care period is burdensome and
inflexible.  The Agency has already  presented, in a previous paragraph, its
logic refuting comments critical of  the 30-year period with  flexibility
for individual variances.  Correspondingly, EPA also rejects the contention
that petitioning makes  an  inordinate claim on an owner's or-  operator's
resources.
     The  following arguments state  in greater detail the reasons why EPA
believes  the  petition mechanism is  practicable.  Changes from  the interim
final to  the  final regulation  concerning  the  specific procedures and con-
ditions for petitioning are also  described below, along with the basic
rationale for the  petition mechanism itself.
     The  purpose of  the petition  mechanism as revised in the final  regula~
tions,  is to  allow (1)  a waiver of some  or all  of the post-closure  care
requirements  or a  modification  to  the duration  of the post-closure  care period,
if the  secure nature of a  facility makes  this practicable, or  (2) an  extension
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of the post-closure  care period or alteration of post-closure reauiraments,
should a threat  to human health or the environment  persist.   Given  that
owners or operators  have prepared their post-closure  plans  in a  responsible
and thorough manner, the additional preparation of  petitions  to  alter
post-closure requirements should not involve any significant  cost or
effort on their  part.  The information upon which the petitions  are
based should already be Incorporated into the post-closure  plans which
are to be submitted  concurrently*  Therefore, in practice,  shortening of
the post-closure care period or exemption from some post-closure require-
ments will  depend upon an owner or operator providing evidence that his
facility Is secure,  this task should be no more complicated  for an owner or
operator than  it would be were he required to demonstrate the same  evidence
as a precondition for having variable post-closure  care provisions
stipulated In  his post-closure plan.
     Even 1f one assumes for the sake of argument that owners or operators
were compelled to submit "thousands of formal petitions" in order to get
the post-closure care requirements in their plans modified, any  particular
owner or operator would need only submit a single petition  in most  cases.
Finally, owners  or operators who implacably believe the 30-year  period,
or the petition  process to alter it, is burdensome, may of  course apply
for a permit.
     Under the General Status Standards, the length of the  post-closure care
period and scope of  the post-closure requirements are  to be determined
during the permitting process and subsequently written Into the  permits.
However, during  Interim status, EPA believes that owners or operators
need to specifically demonstrate evidence for any for requested  alteration
of post-closure  care provisions through a petition process.
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     Another reason for establishing a 30-year post-closure care standard
period which allows for variation when adequate evidence can be shown,
rather than adopting a case-by-case approach, is that it accords better
with a basic tenet of Interim Status Standards—that interaction between
EPA and the regulated community be minimized.
     The time and personnel needed to review a small number of petitions
for variances from a standard would be considerably less than the amount
required to review many post-closure plans on a case-by-case basis in
order to establish specific post-closure care requirements and periods.
EPA's approach avoids the misallocation of resources during interim status
that adoption of the commenters1 recommended alternative would result
in, and thereby enables the Agency to concentrate on the more demanding
task of preparing to permit facilities under RCRA General Status Standards,
It is at this point, during permitting, that a case-by-case review of
plans for all facilities applying for permits will be undertaken.
     The most important reason for the 30-year post-closure care period,
and the concomitant petitioning process, is to ensure financial responsibility
for hazardous waste facilities.
     Analogous to logic used in the previous argument for a 30-year standard,
owners and operators need to be mindful that post-closure care is required
for an entire 30 years, unless altered by petition later on, so that they
are certain to accunulate sufficient funds to cover post-closure care
activities for the duration-of the period.  These funds must be built  up
over the life of the site.  If allowed to wait until a specific post-closure
period is determined at the time plans are reviewed near the end of the
site life, an owner or operator may not have collected, or be able before
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closure to collect, enough funds to pay for post-closure care  activities,
assuming the  stipulated period is longer than he had financially  prepared
for.  Therefore, requiring owners or operators to petition  to  alter  the
post-closure  care period and requirements ensures that funds will  be
adequate for  at least 30 years of post-closure care.  In the event that
the period is shortened by petition or at the discretion of the Regional
Administrator, thereby reducing the post-clsoure cost estimate required
in the plan,  the owner or operator may request the Regional Administrator
to return any funds in excess of the estimate.  The required 30-year
post-closure  care period and related petition process is therefore aimed
at precluding a situation in which insufficient funds are available  to
support the post-closure cost estimate in a plan that is revised  upward,
(However, the Agency recognizes that if the period is lengthened  beyond
30 years, the post-closure fund will be Inadequate.  However,  for reasons
discussed in  the May 19 preamble to §265.117, the Agency believes that
it would be.excessive to set a period greater than 30 years initially.)
     Two conmenters expressed consternation over the Agency's  decision
to restrict the time allowed for submitting petitions to extend or reduce
the post-closure care period to the time the post-closure plan is submitted
and to five-year intervals after the completion of closure.  As these
commenters put It:  "There Is absolutely no scientific or logical  basis
for Imposing  such a limitation on the submission or consideration of
petitions."   Furthermore, they held that "by establishing an arbitrary
five-year Interval for the submission and consideration of  petitions, EPA
has established what amounts to a 'oarole1 system which bears  no  relevance
to any considerations of human health or environmental protection."
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     EPA concurs with this comment.  The final  interim status regulation
rectifies this by permits petitions during the  review period for post-
closure plans and anytime thereafter.  However, the Regional  Administrator
will only consider petitions when they evidence new information which
directly bears on the post-closure care requirements or on the length of
the post-closure care period.
     In addition to allowing petitions at any time during the pre-closure
review period and post-closure care period, the final regulation also
enables the public to petition with respect to one type of post-closure
plan modification it previously was not allowed to address.  For example,
the interim final regulation had restricted public petitions to extending
or reducing the period of post-closure care.  Only an owner or operator
could petition to alter  or discontinue some or all of the post-closure
care requirements.  And  in response to such a petition, even the Regional
Administrator's authority on alteration was left unclear, since the
interim final regulation specified only that he could require the owner
or operator to continue  one or more of the post-closure care and maintenance
requirements contained in the facility's post-closure plan for a soecified
period of time.
     In contrast, the final  regulation explicitly states that the public
may petition the Regional Administrator, or he may at his own discretion
decide, to modify plans  1n order to alter  some or all of the post-closure
care requirements based  on cause.  The Regional Administrator may decide
to modify a plan 1n order to bolster  some  post-closure care  requirements.
For example, if unexpected leakage of hazardous waste occurs during the
post-closure care period, it might be necessary for  him to modify a plan
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 so that TOre extensive maintenance will be provided, even  after cleanup has
 been completed.  Any request for an extension of the post-closure care
 period or an alteration of post-closure care requirements  (e.g., by citizens
 groups) must demonstrate that such a change is necessary  to protect human
.health and the environnent.
     The opportunity for the affected public to submit written comments
 during the post-closure plan review period has been retained in the final
 regulation, but the opportunity for a public hearina during this period
 has been added. The Regional Administrator's review period has been
 increased from 90  to 180 days In order to enable owners or operators to
 submit another olan for approval should the Regional Administrator disapprove
 the version originally submitted and to make sure that sufficient time is
 available to conduct a productive public hearing.  The opportunity for
 such a public hearing, at which Issues germane to a plan  can be presented,
 has been introduced to increase due process for all parties concerned and
 to ensure that better  plans will be approved.
     In regard to  the  Regional Administrator's authority  to modify post-
 closure care provisions after closure, some conmenters who criticized
 the limitation of  petitions to five-year intervals also questioned the
 propriety of EPA's allowing him to extend the 30-year post-closure period
 "if he finds there has been non-compliance with any applicable standards
 or requirements."   Continuing the penal metaphor of their previous comment,
 these coromenters argued that  "extension of the post-closure period for
 any reason other than  demonstrated need to protect against significant
 risks to human health  or  the  environment amounts to no  less than a penalty
 imposed for non-compllance,  regardless of whether or not  the non-comollance
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is significant in hunan health or environmental  terms."  In sun,  the comment
concluded, "the imposition of such a penalty is  not permissable under RCRA
which specifies, in detail, the circumstances under which penalties may
be imposed and the procedures for imposing such  penalties."
     EPA agrees that the reasons for extending the period of post-closure
care should be limited only to conditions which  violate the chief objectives
of RCRA - the protection of human health and the environment.
     Only in such cases do the regulations now allow the Regional Administrator
to reauire an owner or operator to continue, in conformance with a modified
plan, certain post-closure care retirements for another specified period
of time after the initial period.  As  rewritten, the regulation now makes
clear that protection of human health  an.d the environment is the touchstone
on which  such decisions will  be based.
     Consistent with changes  in the reasons  for which petitioning is
allowed,  and  in  response to  comments urging  that post-closure care require-
ments reflect site-specific  conditions,  the  final  regulation now authorizes
the  Regional  Administrator  to modify post-closure  plans  in order to grant
a temporary suspension of one or  more  post-closure requirements  if the
owner or  operator or any member of  the public demonstrates just  causa.
Clearly,  the  most logical way of  ascertaining whether certain requirements
need to be maintained, altered  or discontinued  is  by trying  to determine
whether they  are empirically valid.  Naturally, any such decision will be
depend upon an  owner or  operator  or member  of the  public first demonstrating
just cause that  temporary  suspension should be  undertaken.   However,  in  the
interests of  greater flexibility,  as recommended  in some comments, the
Reqional  Administrator may,  at  the  end of the specified  period of  suspension,
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terminate or  reinstate the requirements  If necessary  to  protect human
health or the environment.
     In short, the final  regulation Integrates  the  petition mechanism
with the approval process for post-closure plans more cohesively than
did the Interim final regulation.  The melding  of §265.117(d)  of the
interim final regulation  into §265.118 of the final regulation makes
clearer how and when petitioning may occur to modify  post-closure plans,
1n accordance with which  all post-closure care  activities  must be
performed.
Synopsis of S265.117 of the Final Interim Status Regulations
     The final Interim status regulations are basically  the same as the
Interim final regulations, except that §265.117(d)  has been deleted.  In
                                       *
the final regulation, this Section has been divided into its main conceptual
components, modified and  reincorporated  into §265.118.  These changes
are listed under  the "Synopsis of §265.118 of the Final  Interim Status
Regulation."
     A minor  change is that the final regulation deletes the words "short-
term, incidental" 1n §265.117(b){2), so  that security requirements fiay
also be Invoked whenever  any access, whether short  or long-term, to a
site by the public or domestic livestock during the post-closure care
period could  jeopardize human health.
     Finally, subsection  (d) of $265.117 now states that post-closure
care activities must be done according to the provisions of the approved
post-closure  plan as specified 1n $265,118,
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5265.118 POST-CLOSURE PLAN; AMENDMENT OF PLAN
Synopsis of §265.118 of the Interim Final Interim Status Regulations
     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 containment systems, and
where aoolicahle, to the monitorfnci equipment.  In interim  status, the
owner or operator nnist 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, owners or operators must
submit this plan to the Regional Administrator along with Part 8 of the
permit application.  The Regional Administrator will then approve, disapprove
or modify the post-closure plan.  Once approved, the plan will be incorporated
into the permit conditions.
     Owners or operators may amend oost-closure plans.  Amendments-are
reauired in operating plans or facility design would affect post-closure
plans.  During interim status, amendments need not be submitted to EPA.
During general status, the owner or operator must submit each amendment
to the Regional Administrator for approval.
Comments, Response, and Rationale for Final Regulation
     EPA's responses to all comments concerning post-closure plans are
largely parallel with those addressed to comments on closure plans.
Readers should refer to this document regarding §265.112 for an elaboration
of these responses.  The major change in §265.118 of the final regulation
is the reworking of the post-closure plan approval process  and the connected
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petition mechanism.  The most significant nodifications  in §265.118  are
(1) a six month tine extension for post-closure plans; (2) the  reauirenent
that an owner or operator include in the plan the name,  address and
phone number of the person or office to contact about the disposal  facility
during the post-closure care period; (3) the addition of events occurring
during the active  life of the facility as a condition for modifying  a
post-closure plan; and (4) clarification that the Regional Administrator
may disapprove as  well as modify or approve a post-closure plan during
the 180-day review period after Its receipt; and (5) elaboration of
procedures for approving and modifying post-closure plans.
     The rationale for the shifting of §265.117(d) of the Interim final
                                                      •
to §265.118 of the final regulation is explained under the "Comments"
section for $265.117.  Essentially, this change makes more intelligible
the approval and modification process for post-closure plans,  including
public participation  in this process through petitioning.
     The six month extension for preparing post-closure  plans  has been
introduced for the same reasons as the extension for closure  plans,  which
are outlined earlier  in this Background Document under the "Comments and
Rationale" for §265.112.  Likewise, the rationale for the Regional
Administrator's authority to call in post-closure plans  is explained
there.
     The reason for requiring Information In the post-closure  plan for
contacting the person responsible for the disposal facility  1s  that EPA
needs to be assured that access to the facility will be  possible after
closure and that corrective action could be taken should an  emergency
or other condition make  it  necessary,
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     That events, e.g., 9 fire or dike break,  might occur during the
active life of the facility which necessitate  modifying the post-closure
plan explains why this condition has been added to §265.118(b).
     Finally, EPA has clarified the Regional Administrator's authority
to disapprove post-closure plans during the review period,  and the
owner or operator is now given a second opportunity to modify his plan
if the first version of it is unacceptable. After the second review,  however,
he must accept the Regional Administrator's modifications,  if any are
made.
Synopsis of §265.118 of the Final Interim Status Regulations
     This Section of the final regulation generally parallels the interim
final version, except that, as previously explained most of §265.117(d)
of the interim final regulation now appears here in modified form.
     Several changes have been nade to the final interim- status regulations.
First, post-closure plans need not be prepared and on hand at the facility
until May 19, 1981 rather than November 19, 1980.  Only owners and operators
planning to begin closure within 180 days after November 19, 1980 must
submit post-closure plans at an earlier date.
     Second, the plan must include the name, address, and phone number of
the person to contact about the disposal facility during the post-closure
care period.
     Third, the owner or operator must amend his post-closure plan any
time relevant events, in addition to changes in operating plans or facility
design, occur during the active life of the facility.  He must also amend
the plan whenever changes in monitoring or maintenance plans or events
occurring during the post-closure care period affect the plan.
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     Finally,  the Regional  Administrator will nodify,  approve  or disapprove
the plan within  90 days  of  its  receipt and after  providing the owner or
operator and the affected public  (through a  newspaper  notice)  an onoortunity
to submit written comments.
     Section S265.117(d) has been moved to §265.118  in the final  regulation.
The most important consequence  of this is to clarify that all  actions by
owners or operators during  the.post-closure  period must be done in  accordance
with their approved plans.  Under these regulations, any member of  the
public, in addition to an owner or operator, nay  petition the  Regional
Administrator regarding  post-closure care requirements.   In contrast to
the Interim final regulations,  any of these  petitioners  may reauest an
alteration of the requirements  of post-closure care  based on cause.  In
the final regulations, the  Regional Administrator may  consider these
petitions during the 180-day perfod before closure under Section 265.118H)
and (f) as well  as any time thereafter.  He  may also convene a public
hearing to discuss post-closure plans.
     The final regulations  modify the type of evidence required to  be
included in petitions so that It  accords with corresponding changes in
the purposes for petitioning.   The interim final  regulations only required
evidence demonstrating that the facility is  secure enough to make continuing
the specified post-closure  requirements) unnecessary  (e.g., no detected
leaks and none likely to occur, characteristics of the waste,  application
of advanced technology,  or  alternative disposal,  treatment or  re-use
techniques).  The final  regulation adds that such evidence Is  also  required
fn petitions which support  a shortening o* the post-closure care period,
even If all the monitoring  and  maintenance requirements  remain in effect.
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     Alternatively, in the final regulations, petitioners for extension
of the post-closure care period or alteration of the post-closure retire-
ments must submit evidence that such action is necessary to protect
human health and the environment.
     Unlike the interim final regulations, the final version allows the
Regional Administrator to modify a post-closure plan, for instance by
suspending one or more post-closure care requirements, if the owner or
operator or any member of the public demonstrates just cause.  At the
end of this specified period of  suspension, the Regional Administrator
will determine whether the requirement(s) may be terminated or must be
reinstated to protect hunan health and the environment.
     The final regulations also  clarify the Regional Administrator's
authority to act after the original specified period of post-closure
care ends.  In addition to determining whether post-closure care and
maintenance requirements should  be continued or terminated, the Regional
Administrator may  decide to alter them.  The final regulations explicitly
state that he may  require an owner or operator to continue certain post-
closure requirements for another specified period of time if necessary
to  protect human health or the  environment.
§265.119  NOTICE TO LOCAL LAND AUTHORITY
     EPA promulgated this Section of the  regulation as final on Hay 19,
1980.  However, EPA 1s resproposing this Section, to correspond to changes
promulgated in §264.119.
§265.120  NOTICE IN DEED TO PROPERTY
     EPA promulgated this Section of the  regulation as final on May 19,
1980.  However, EPA 1s reproposlng this Section to correspond to changes
promulgated in §264.120.
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                   SUBPART G - CLOSURE AND POST-CLOSURE
§265.110  Applicability.
     Except as  £2fi5.1  provides otherwise:
     (a)  Sections  265.111-265.115  (which concern closure)  apply  to the owners
and operators  of all hazardous waste management facilities;  and
     (b)  Sections  265.117-265.120  (which concern post-closure care)  apply to
the owners and  operators  of all hazardous waste disposal  facilities.
$265.111  Closure performance standard,
     The owner  or operator must close his facility  1n  a manner that:
     (a)  Minimizes the need for  further maintenance,  and
     (b)  Controls, minimizes or  eliminates, to the extent  necessary
      •»
to protect hunan health and the environment, post-closure escape  of
hazardous waste, hazardous waste  constituents, leachate, contaminated
rainfall, or waste  decomposition  products to the ground or  surface
waters or to the atmosphere.
§265.112   Closure  plan;  amendment  of plan.
     (a)  By May 19, 1931, the owner or operator must  have  a written
closure plan.   He must keep a copy  of the closure plan and  all revisions
to the plan at  the  facility until closure is completed and  certified  in
accordance with §265.115.  This plan must Identify  the steps necessary
to completely  or partially close  the facility at any point  during its
Intended operating  life and to completely close the facility at the end
of its Intended operating life.   The closure plan must Include, at.least;
          (I)   A description of how and when the facility will be partially
               closed, 1f applicable, and finally closed.   The description
               must Identify the  maximum extent of  the operation  which
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               will be unclosed during the life of the facility,  and how
               the requirements of §§265.111, 265.113, 265.114,  and 265.115
               and the aoplicable closure requirements of 55265.197,
               265.228, 255i2RO, 265.310, 265.351, 265.381,  and  265.404
               will be met;
          (2)  An estimate of the maximum inventory of wastes in  storage and
               in treatment at any time during the life of the facility;
          (3)  A description of the steos needed to decontaminate facility
               equipment during closure; and
          (4)  An estimate of the expected year of closure and a  schedule
               for final closure.  The schedule must Include, at  a mininum,
               the total time required to close the facility and  the
               time required for intervening closure activities  which
               will allow tracking of the progress of closure.  (For
               example, in the case of a landfill, estimates of  the tine
               required to treat and dispose of all waste inventory and
               of the time required to place a final cover must  be included.)
     (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 the plan whenever changes in operating
plans or facility design affect the closure plan,  or whenever there
1s a change in the expected year of closure of the facility.  The plan
must be amended within 60 days of the changes.
     (c)  The owner or operator must submit his closure plan to  the
Regional Administrator at least 180 days before the date he  expects
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to begin closure.  The owner or operator must submit  his  closure  plan
to the Regional Administrator no later than 15 days after:
     (1)  termination of Interim status (except when  a  permit  is  Issued  to
          the  facility simultaneously with termination  of Interim status; •
          or
     (2)  Issuance of a judicial decree or compliance order  under Section 3008
          of RCRA to cease receiving wastes or close.
[Comment;  The date when closure commences should  be  within  30 days  after
the date on  which the owner or operator expects to receive the final volume
of wastes.1
     (d)  The  Regional Administrator will provide  the owner  or operator
and the public, through a newspaper notice, the opportunity  to submit
written comments on the plan and request modifications  of the  plan
within 30  days of the date of the notice.   He will also,  in response  to
                                   •
a request or at his own "discretion, hold a public  hearing whenever such
a hearing  might clarify one or more issues concerning a closure plan.
The Regional Administrator will give public notice of the hearing at
least 30 days  before 1t occurs,  (Public notice of the  hearing may be
given at the same time as notice of the opportunity for the  public to
submit written comments, and the two notices may be combined.) The
Regional Administrator will approve, modify, or disapprove the plan
within 90  days of Its receipt.  If the Regional Administrator  does not
approve the  plan, the owner or operator must modify the plan or submit a
new plan for approval within 30 days.  The Regional Administrator will
approve or modify this plan In writing within 60 days.  If the Regional
Administrator  modifies the plan, this modified plan becomes  the approved
closure plan.   The Regional Administrator's decision  must assure  that
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the approved closure plan is consistent with §§265.111,  265.113,  265.114,
and 265.115 and the applicable requirements of §§265.197,  265.228,  265.280
265.310, 265.351, 265.381 and 265.404.  A copy of this modified  plan
must be mailed to the owner or operator.  If the owner or  operator  plans
to begin closure before November 19, 1981 he must submit the closure
plan by May 19, 1981.
§265.113  Closure; time allowed for closure.
    •(a)  Within 90 days after receiving the final  volume  of hazardous
wastes, or 90 days after approval of the closure plan, if  that is later,
the owner or operator must treat, remove from the site,  or dispose
of on-site all hazardous wastes in accordance with the approved
closure plan.  The Regional Administrator may approve £ longer period
using the procedures under §265.112(d)  if the owner or operator
demonstrates .that:
          (l)(i)  The activities required to comoly with this paragraph
                  will, of necessity, take him longer than 90 days  to
                  complete; or
             (ii){A)  The facility has  the capacity to receive additional
                      wastes;
                  (8)  There is a reasonable likelihood that a person  other
                      than the owner or operator will recommence operation
                      of the  site; and
                  (C)  Closure of the  facility would be fmcompatible with
                      continued operation of the site; and
          (2)  He has taken and will continue to take all  steps  to prevent
               threats  to human health and the environnent.
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     (b)  The owner or operator nust complete closure activities in
accordance with the approved closure plan and within 180 days after
receiving the final volume of wastes or 180 days after approval of the
closure plan, if that is lat$r.  The Regional Administrator may
approve a longer closure period using the procedures under §265.112(c)
if the owner or operator demonstrates that:
         (1)(1)  The closure activities will, of necessity, take him
                 longer than 180 days to complete; or
            (11)(A)  The facility has the capacity to receive additional
                     waste;
                (B)  There 1s a reasonable likelihood that a person other
                     than the Downer or operator will  recommence operation
                     of the site;
                (C)  Closure of the facility would be incompatible with
                     continued operation of the site; and^
         (2)  He has taken and will continue to take all steos to prevent
              threats to human health and the environment from the unclosed
              but Inactive facility.
              [Comment:  Under paragraphs (aMlHii)  and (bKlHii), of
              this Section, If operation of the facility is recommenced,
               the Regional Administrator may defer completion of closure
               activities until the new operation Is  terminated,
5265,114  Disposal or decontamination of equipment.
     Hhen closure Is completed, all  facility equipment and structures must
have been properly disposed of, or decontaminated by removing all  hazardous
waste end residues.
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§2fi5.11(5  Certification of closure.
    .When closure is completed, the owner or operator must submit to  the
Regional Administrator certification both by the owner or operator 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.
     (a)  Post-closure care must continue for 30 years after the date of
completing closure and must consist of at least the following:
          (1)  Ground-water monitoring and reporting in accordance with
               the reauirements of Subpart F, and
          (2)  Maintenance of monitoring and waste^containment systems
               as specified in 5526E.91, 2F5.223, 265,228, 265.290, and
               265.310, where applicable,
     (b)  The Regional Administrator may require continuation of any of
the security requirements of §265.14  for 30 years after the date
closure has been completed when:
          (1)  Wastes may remain exposed after completion of closure; or
          (2)  Access by the public or domestic livestock may pose a
               hazard to human health.
In extending any of  these requirements the Regional Administrator will
use the procedures of §265,U8(c).
     (c)  Post-closure use of property on or in which hazardous wastes
remain  after closure must never be  allowed to  disturb the integrity of
the final cover, liner(s), or  any  other components of any containment
system, or the function of the facility's monitoring systems, unless
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the owner Qr operator can demonstrate to the Regional Administrator,
althtr 1n the postal osuri plan or by petition, through the procedures
1n 1265.U8(c) or (f), »$ appropriate, that the disturbance;
         (1)  Is necessary to the proposed use of the property, and win
                        i
              not Increase the potential hazard to human health or the
              environment; or
         (2)  Is necessary to reduce a threat to hunan health or the
              environment,
     (d)  All post-closure care activities must be performed 1n accordance
with the provisions  of the approved post-closure plan as specified 1n
$265,118,
§265.118  Post-closure pianft amendment of plan.
     (a)  By May 19,  1981, the owner or operator of a disposal facility
mist have a written  post-closure plan.*  He must keep a copy of the post-
closure plan and all  revisions to the plan at the facility until the post-
closure care period  begins.  The post-closure plan must Identify the
activities  which will be carried on after closure and the frequency of
these activities, and Include at least:
          (1)  A description of the planned ground-water monitoring
              activities  and frequencies at which they will be performed
              to comply with Subpart F during the post-closure period;
          (Z)  A description of the planned maintenance activities and
              frequencies at which they will be performed, to ensure;
               (1) The  Integrity of the cap and final cover or other
                  containment structures as specified 1n SS265,223,
                                                       »
                  265.228, 26S.280,  and 265,310, where applicable; and
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               (11) The function of the facility monitoring eaui
                    as specified In §265.91;  and
          (3)  The name, address and phone number of the person or office
              to contact about the disposal  facility during the post-closure
              care period.  This person or office must keep an updated
              post-closure plan during the post-closure care period.
     (b)  The owner or operator may anend his post-closure plan at any
time during the active life of the disposal  facility.   The owner or
operator must anend his plan any time changes in operating olans or
facility design, or events which occur during the active life of the
facility, affect his post-closure plan.  The plan must He amended within
60 days after the changes or events occur.
     T.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 date when he "expects to begin
clsoure" should be immediately after the date on which he expects to
receive the final volume of wastes.  The owner or operator must submit
his closure plan to the Regional Administrator no later than 15 days
after:
          (1)  Termination of interim status (except when a permit is  Issued  to
               the facility simultaneously with termination of Interim  status);
               or
          (2)  Issuance of a Judicial decree or compliance order under  Section
               3008 of RCRA to cease receiving wastes or close.
[Comment:  The date when closure commences should be within 30 days after
the date on which the owner or ooerator expects to receive the final  volume
of wastes.
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     (d)  The Regional Administrator win provide the owner or operator
and the pwhllc through a newspaper notice the opportunity to submit
written cownents on the plan and request modifictions of the pUn
Including n»41f1cation of the 30 year post-closMre period required In
§265.117 within 30 days of the date of the notice.  He may also, in
response to a request or at his own discretion, hold a public hearing
whenever a hearing might clarify one or wore Issues concerning the post-closure
plan.  The Regional Administrator will give the public notice of the
hearing at least 30 days before 1t occurs,  (Public notice of the hearing
may be given at the same time as notice of the opportunity for written
public comments, and the two notices may be combined.)  The Regional
Administrator will approve, modify, or disapprove the plan within 90
days of Its receipt.  If the Regional Administrator does not approve the
plan, the owner or operator must modify the plan or submit a new plan
for approval within 30 days.  The Regional Administrator will approve or
         ^
modify this plan in writing within 60 days.  If the Regional Administrator
modifies the plan, this modified plan becomes the approved post-closure
plan.  The Regional Administrator must base his decision upon the criteria
required of petitions under paragraph (f)(l)(i) of this Section.  A copy
of this modified plan must be mailed to the owner or operator.  If an
owner or operator plans to begin closure before November 19, 1981, he
must submit the post-closure plan by May 19, 1981,
     (e)  The owner or operator may amend his post-closure plan during the
post-closure care period.  The owner or operator must amend his plan any
time changes 1n monitoring or maintenance plans or events which occur
during thirpost-closure care period affect the post-closure plan.  The
owner or operator must petition the Regional Administrator within 60 days
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of the changes or events, under the procedures of oaragraoh  (f)  of  this
section, to allow the nlan to be modified.
     (f)  The post-closure plan (or period) may he modified  durinn  the
post-closure care period or at the end of the post-closure care  period
in either of the following two ways:
          (1) The owner or operator or any. member of the public  may
              petition the Regional Administrator to extend or reduce
              the post-closure care period based on cause, or alter the
              requirements of the post-closure care period hased on
              cause.
              (1) The petition must include evidence demonstrating  that:
                  (A) The secure nature of the facility makes the post-
                  closure care requirement!s) unnecessary or supports reduction
                  of the post-closure care nerlod specified in the  current
                  post-closure plan (e.g., leachate or groundwater monitorinn
                  results, characteristics of the waste, application of
                  advanced technology, or  alternative disposal,  treatment,
                  or re-use  techniques indicate  that the facility 1s
                  secure), or
                  (B) The  requested extension 1n the post-closure
                  care  period  or alteration  of post-closure care retirements
                  is necessary  to  prevent  threats to human health and the
                  environment,
              (11) These petitions  will be  considered by the Regional
                                                             t
                  Administrator only  when  they present new and relevant
                  information  not  previously  considered by the Regional
                  Administrator.   Whenever the Regional Administrator is
                  considering  a petition,  he will provide the owner  or

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       operator and the public, through a newspaper
       notice, the opportunity to submit written comments within
       30 days of the date of the notice.  He will also, 1n
       response to a request or at his own discretion, Nsid a
       public hearing whenever a hearing might clarify one or
       wore Issues concerning the post-closure plan,  The
       Regional Administrator wm give the public notice of
       the hearing it least 30 days before it occurs,  (Public
       notice of the hearing may be given at the same time as
       notice of the opportunity for written public comments,
       and the two notices may be combined.)  After considering
       the comments, he will Issue a final determination, based
       upon the criteria set forth In subparagraph (1),
  (111) If the Regional Administrator denies the petition, he
       will send the petitioner a brief written response
       giving a reason for the denial.
(2)  The Regional Administrator may tentatively decide to modify
    the oost-closure plan If he deems-It necessary to prevent
    threats to human health and the environment.  He may propose
    to extend or reduce the post-closure care period based on
    cause or alter the requirements of the post-closure care
    period based on cause,
    (1)  The Regional Adn1n1strator will provide the owner or
        operator and the affected public, through a newpaper
                            t
        notice, the opportunity to suhnlt written commtnts
        within 30 d«yi of thg date of the notice and tht
        opportunity for a public hearing as In subparagraph(aHi)Ul)
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                   of this Section.  After considering the comments,'he
                   will issue a final determination.
             (ii)  The Regional Administrator will base his final  deter-
                   mination upon the same criteria as required for petitions
                   under paragraph(f)(l)(i) of this Section.
[Comment:  A modification of the post-closure plan may include where
aopropriate the temporary suspension rather than oernanent deletion
of one or more post-closure care requirements.  At the end of the specified
period of suspension, the Regional Administrator would then determine whether
the requirements) should be permanently discontinued or reinstated
to prevent threats to human health and the environment.]
§265.119  Notice to local land authority.
     Within 90 days after closure is completed, the owner or ooerator of
a disposal facility must submit to the local land authority and to the
Regional Administrator a survey plat indicating the location and dimensions
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 disturbance 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.
The owner or operator must identify 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
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the Deft of  hlf knowledge and 1n accordance with  any  records  he has
S26S.12Q  Hottcg jn daeo; tf flropgrtyt
     The owner of the property on which  a disposal  facility 1s located
iriust record, 1n accordance with State  law, a  notation on  the  deed to the
facility property - or on some other Instrument which Is  normally examined
during tftle search - that will 1n perpetuity notify  any  potential purchaser
of the property that: (1) the land has been used  to manage hazardous
waste, and'(2) ftf ui« 1i restricted under 5265,U7(c),
§§255.121 -  265.139 ^Reserved]
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V.  RATIONALE FOR GENERAL STATUS STANDARDS
INTRODUCTION

     This section of the Background Document provides  the rationale for the
Part 264 General Status Standards for closure and post-closure care.   The
General Status Standards apply to new facilities which must obtain permits
as conditions for operating and to facilities which initially operated
under interim status and have subsequently been granted permits.
     The Part 264 General Status Standards are largely similar to the final
Part 265 Interim Status Standards for closure and post-closure care.   The
closure and post-closure care regulations are concerned primarily with
administrative and procedural issues associated with properly closing
                               »
hazardous waste management facilities and maintaining  disposal facilities
after closure.  The Aqency feels that most of the interim status  procedures
should also apply to facilities operating under general status.  In addition to
the administrative provisions, the closure regulations include a  closure
performance standard.  The closure performance standard in the fjnal
Interim Status Standards is sufficiently stringent so  that the Agency
considers it unnecessary to make the standard for general status  more
stringent.
     In developing the Part 264 General Status Standards, the Agency
analyzed all the comments received on the proposed regulations and the
interim final Interim Status Standards.  This section  of the Background
Document provides a detailed rationale for those portions of the  General
Status Standards which differ from the final Interim Status Standards.
For those sections which are the same as the final Interim Status Standards,
the rationale is the same as that provided in Chapter IV of this  document.
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     The significant difference between interim status and general  status
                       •
Is that facilities operating with general status have permits.   Some  of  the
procedures and conditions included in the final Interim Status  Standards for
closure and post-closure care are now part of the permitting  process,  or are
part of the permit conditions and are therefore included  in the oerroit
regulations rather than these regulations.  For example,  the  procedures
for submitting and approving closure and post-closure plans are specified
in the permit application regulations.  Similarly, all amendments  to
closure and post-closure plans, alterations of the post-closure care
requirements, and changes in the duration of the post-closure care period
are permit modifications and therefore subject to the procedures of
§124.5. '  Some of these will be "minor modifications" under 40  CFR 122.17,
which will allow simplified procedures to be used.
     §5264.119 and 264.120 of the General Status Standards differ from
the final  Interim Status Standards.  The A'gency is reproposing  these
portions of the Interim Status Standards to make them consistent with
                                        •»
the General Status Standards.
SS264.112U) and (c) 264.118U)  CLOSURE AND POST-CLOSURE PLANS
Synopsis of the Final Interim Status Standards
     Section 2P5.112 requires that all facility owners or operators
prepare closure plans by May 19, 1981.  Section 265.118 renuires that
owners or operators of disposal facilities prepare post-closure plans
by the sane date.  The Reoional Administrator may reouire that  the plans
be sent to him at any time.  The Agency Is not requiring  that plans
be submitted to the Regional Administrator unless requested so  that
EPA's resources can be used to Implement the permit process.  The plans,
including all amendments, must be kept at the facility during the life
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of the facility.  During the post-closure care oeriod,  the contact person
or office will  be responsible for keeping the post-closure plan.
Rationale for the General Status Standards
     The General Status Standards apply to those owners and operators
that have already received permits to operate hazardous waste management
facilities.  As part of the permitting process, the owner or operator
will submit the plans which will be reviewed and approved, modified,  or
disapproved by the Regional Administrator.  Approved closure plans (for
all facilities) and post-closure plans (for disoosal facilities)  will be
included as part of the permit conditions.  Therefore,  the owner  or
operator will have approved plans on the effective date of his permit.
The owner or operator must keep a copy of these approved plans and any
approved amendments to the plans at the facility during the life  of the
facility so that an authorized Inspector may check the  plans to be sure
they reflect .current facility conditions.  Since no one may be at the
facility during the post-closure care period, the contact oerson  or office
                  •
will retain a copy of the approved post-closure plan during this  period.
§§264,ll2(b) and 264.118(b) AMENDMENT OF CLOSURE AMD POST-CLOSURE PLANS
Synopsis of the Final Interim Status Standards
     Sections 265.112(b) and 265,U8(b) and (e) of the  final Interim Status
Standards allow owners or operators to amend their closure or oost-closure
plans at any time during the active life of the facility and, for post'
closure plans, at any time during the post-closure period.  Closure plans
must be amended whenever changes in operating plans, facility design or
the expected year of closure afect the closure plan.  Post-closure plans
must be amended whenever changes 1n operating plans, facility design or
events which occur during the active life of the facility affect the
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post-closure  plans.  These amendments to  the  plans  are  to  be kept at the
facility hut  need not be submitted to the Regional  Administrator.
Rationale for the General Status Standards
     Owners or operators of facilities which  are  operating under the
General  Status Standards have already submitted their closure and
post-closure  plans with their permit applications and have had them
approved as part of  the permitting process.    Since the approve^ olans
are part of the permit conditions, all amendments to the plans are
modifications to the permit and therefore subject to the conditions
and procedures of §124.5 "Modification, revocation  and reissuance, or
temination of permits.
§264.112(d) CLOSURE  NOTIFICATION
Synopsis of the Final Interim Status Standards
     Sections 265.112(d) and 265.118(d) of  the final Interim Status Standards
reoulre the owner or operator to submit closure and post-closure plans to
the Regional  Administrator at least 180 days  before the date he expects to
begin closure to allow time for the Regional  Administrator to review
and obtain public comments on the plans,  and  to modify, approve, or
disapprove the plans.  The six month period provides enough time for the
owner or operator or the Regional Administrator to make any necessary
modifications to the plans that are deemed  necessary.
Rationale for the General Status Standards
     The Agency feels that 1t is not necessary for owners  or operators to
resubnlt their plans 180 days before closure  is expected to begin because
the plans have already been reviewed and  approved as part of the permit
orocess, and  all amendments have also been  approved In accordance with the
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procedures of §124.5.  These nrocedures include providing the public
the opportunity to submit written comments on closure and post-closure
plans during the permit review process and when amendments to the plans
are submitted.  The Agency, therefore, does not think that it is necessary
to again solicit public comrents on the closure and post-closure plans
180 days before closure is to begin.
     The General Status Standards do require that an owner or ooerator  notify
the Regional Administrator at least 180 days prior to the date he expects
to begin closure so that the Agency can have time to ensure that the
closure and post-closure plans are uo-to-date and appropriate for the
facility conditions.
§264.118(c) POST-CLOSURE PLAN MODIFICATIONS DURING POST-CLOSURE
     §265.118(f) of the final Interim Status Standards specify the
procedures for modifying the post-closure plan during the post-closure
care period.  The post-closure plan must be modified whenever there is
a  change  in the post-closure care requirements.  The owner or operator, or
any member of the public or the  Regional Administrator, may wish to alter
the post-closure care  requirements  or  to extend or reduce the duration
of the  post-closure  care period  specified in the post-clsoure plan,
Any petition  by the  owner  or operator  or tentative decision by  the
Regional  Administrator to  alter  the post-closure care requirements must
Include evidence demonstrating that either  the secure nature of  the
facility  makes  the  requirements  specified in the post-closure plan
(including the  duration of the period)  unnecessary or that the  changes
are necessary to protect human health  and the  environment.  The  Regional
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Administrator mist allow public comments on all petitions  he  deems
justified as wgll as on his own tentative decision  to modify  the
post-closure plan.   If a Regional Administrator denies  a  petition,  he
must send a letter to the petitioner stating his reasons  for  the  denial.
Rationale for the General Status Standards
     During general  status, all changes to the closure  and oost-closure
plans are considered permit modifications, including chances  made during
the post-closure care oeriod.  Therefore, all nodifications to  the  post-
closure plan made during post-closure, including altering the oost-
closure care requirements and  extending or reducing the post-closure
care period, must comply with  the permit modification  procedures  in
§124.5.
§264.119  NOTICE TO  LOCAL LAND AUTHORITY
Synopsis of the Final Interim  Status Standards
     Section 265.119 of  the final Interim Status Standards requires that
within 90 days  after closure is completed, the owner  or operator  of a
disposal facility must submit  to  the local land  authority and to  the
Regional Administrator a survey plat indicating  the location  and  dimensions
of landfill cells or other disposal areas.   He must also attach a note
stating his obligation to restrict  disturbance of  the  site as specified
in the post-closure  regulations.  The  owner  or ooerator is also required
to submit a record  of the type, location, and  quantity of wastes  disoosed
of within each  cell  or area of the  facility  to the local  land authority
and to the Regional  Administrator.
Rationale for  the General Status  Standards
     The General Status  Standards differ  from  the  final Interim Status.
Standards in  order  to  clarify  the intent  of  the  requirement.   The Agency
                                   121

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is concerned that the term local land authority may  have  different
connotations in different localities; therefore, in  the General  Status
Standards, the owner or operator is required to submit the survey plat  and
the record of wastes to the local zoning authority or the authority  with
jurisdiction over local land use.  The Agency also realizes that under
certain conditions (e.g., cleanup of a contingency)  the type,  location,
or quantity of hazardous wastes disposed of within a particular  cell  or
area of the facility may change.  Therefore, an owner or  operator must
report any changes in the tyoe, location, and quantity of hazardous  wastes
disposed of within the disposal area to the local  zoning  authority or the
authority with jurisdiction over local land use.
§264.120  MOTTCE IM DEED TO PROPERTY
Synopsis of the Final Interim Status Standards
     Section 265.120 requires that an owner of the property on which a
disposal facility is located must record a notation  on the deed  (or  other
instrument normally examined during title search)  stating that the  land
has been used to manage hazardous wastes and its use is restricted under
Section 265.117(c).
Rationale for the General Status Standards
     The General Status Standards are different from the  final Interim
Final  Standards in order to strengthen the assurance that a future owner
or operator will have full knowledge of the previous uses of the land,
The notation must Indicate that the land has been used to manage hazardous
wastes, its use is restricted under 264.117(c), and  that  a survey plat  and
a record of the type, location, and quantity of hazardous wastes disposed
of within each cell or area of the facility have been filed with the local
zoning authority or the authority with jurisdiction  over  local land  use.

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                  SUBPART G - CLOSURE AND POST-CLOSURE

§264.110  Applicability.
     Except as  S264.1 provides otherwise:
     (a) Sections 264.111 - 264,115 (which concern closure)  apply to the
owners and operators of all hazardous waste management facilities; and
     (b) Sections 264.117 - 264.120 (which concern post-closure care)
apply to the owners and operators of all hazardous waste  disposal facilities,
§264.111  Closure performance standard.
     The owner  or operator nust close his facility in a manner that:
     (a) Minimizes the need for further maintenance, and
     (b) Controls, minimizes or eliminates, to  the extent necessary  to
prevent threats to human health and the environment, post-closure escaoe
of hazardous waste, hazardous waste constituents, leachate,  contaminated
                                 *
rainfall, or waste decomposition products to  the  ground or surface waters
or to the atmosphere.
§264.112  Closure plan; amendment of plan.
     (a) The owner or operator of a hazardous waste management facility
must have a written closure plan. The plan must be submitted with the
permit application, 1n accordance with §122.25(a)(13) of  this Chapter,
and approved by the Regional Administrator as part of the permit  Issuance
proceeding under Part 124 of this Chapter.  In  accordance with §122.29
of this Chapter, the approved closure plan will become a  condition of
any RCRA permit.   The Regional Administrator's decision  must assure
that that approved closure plan Is consistent with §§264.111, 264.113,
264.114, 26^.115 and the applicable requirements  of §§264.178, 264.197,
264.228, and 264.258.  A copy of the approved plan and all  revisions to
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the plan must be kept at the facility until  closure is  completed  and
certified in accordance with §264.115.  The  plan must identify  steps
necessary to completely or partially close the facility at any  point
during its intended operating life and to completely close the  facility
at the end of its intended operating life.  The closure plan must include,
at least:
          (1) A description of how and when  the facility will he  partially
              closed, if applicable, and finally closed.  The description
              must identify the maximum extent of the operation which will
              be unclosed during the life of the facility, and how the
              retirements of §§264,111, 264.113, 264.114, 265.115 and
              the applicable closure requirements of $§264.178, 264.197,
              264.228, and 264.258 will he met;
          (2) An estimate of the maximum Inventory of wastes in storage
              and 1n  treatment at any time during the life of the facility,
              (Any change in this estimate Is  a minor modification under
              §122.17);
          (3) A description of the  steps needed to decontaminate facility
              eaulpment during closure; and
          (4) An estimate of the expected year of closure and a schedule
              for final closure.  The schedule must Include, at a minimum,
              the total time reaulred to  close the facility  and the time
              required  for  Intervening closure activities which will
              allow  tracking of  the  progress  of closure.    (For example,
              in the  case of a landfill,  estimates of  the time required
              to treat  and  dispose  of all waste  inventory and of the t1i*e
              reaulred  to place  a final cover must be  included).
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      (b)  The owner or operator nay amend his closure plan at any  tine
 during the activ* life of the facility.  (The active life of the facility  is
 that  period durinq which wastes are periodically received),  The owner  or
 operator rojst amend the plan whenever changes in operating plans or
 facility design-affect the closure plan,  or whenever there Is a change
 In the expected year of closure.  When the owner or operator requests a
 permit modification to authorize a change in operating plans or facility
 design, he must request a modification of the closure plan at the  same
 time  (see 5124.5(a)).  If a permit modification is not needed to authorize
 the change in operating plans or facility design, the request for  modification
 of the closure plan must be made within 60 days after the change In
 plans or design occurs.
 [Comment;  Changes In estimates of maximum Inventory and of the estimated
year of closure under $264,112(a)(2) and (4) may be made as minor permit
modifications under $122.17(e)]
     (c)  The owner or operator must notify the Regional Administrator
at least 180 days prior to the date he expects to begin closure.
[Comment; the date when he "expects to begin closure" should be within
30 days after the date on which he exoects to receive the final volume
of wastes..  If the facility's permit 1s terminated, or 1f the facility
 1s otherwise ordered, by judicial decree or compliance order under Section
3008 of RCRA, to cease receiving wastes or to close, then the requirement
 of this paragraph does not apply.  However, the owner or operator must
 close the facility In accordance with the deadlines established In 5264.113]
§264.113  Closure; time allowed for closure.
      (a)  Within 90 days after receiving the final volume of hazardous
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wastes, the owner or operator must treat, remove fron the site,  or dispose
of on-site, all hazardous wastes in accordance with the approved closure
plan.  The Regional Administrator may approve a longer period if the
owner or operator demonstrates that:
          (l)(i)  The activities required to comply with this paragraph
                  will, of necessity, take longer than .90 days to complete:
                  or
             (ii)(A)-  The facility has the capacity to receive additional  wastes;
                  (B) There is a reasonable likelihood that a person other than
                      the owner or operator will recommence operation of the
                      site; and
                  (C) Closure of the facility would be incompatible with continued
                      operation of the site; and
          (2)  He has taken and will continue to take all steps to prevant
               threats to human health and the environment.
     (b)  The owner or operator must complete closure activities in accord-
ance with the approved closure plan and within 180 days after receiving the
final  volume of wastes.  The Regional Administrator may approve a longer
closure period If the owner or operator demonstrates that;
          (1)(1)  The closure activities will, of necessity, take longer
                  than 180 days to complete; or
             (1f)(A)  The facility has the capacity to receive additional  wastes;
                 (B)  There is reasonable likelihood that a person other than
                      the owner or operator will recommence operation of the
                      site; and
                 (C)  Closure of the facility would be incompatible with continued
                      operation of the site; and
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          (2)  He has taken and, will  continue to  take  all  steps  to  prevent
               threats to human health and the environment from  the unclosed
               but Inactive facility,
[Comment;  Any extension of the 90 or 180 day period in this  Section may  be
made as a minor modification under §122.17.
     Under paragraphs (a)(l)(11) and  (h)(l)(11) of this Section, If ooeration
of the site is recommenced, the Regional  Administrator may defer completion
of closure activities until the new operation is  terminated.]
§264.114  Disposal or decontamination of equipment.
     When closure is completed, all facility equipment and structures
must have been prooerly disposed of,  or decontaminated by removing all
hazardous waste and residues.
§264.115  Certification of closure.
     When closure is completed, the owner or operator must submit to the
Regional Adminstrator certification both by the owner or operator and by
an independent registered professional engineer that the facility has
been closed in accordance with the'specifications in the approved closure
plan.
§264.116  [Reserved]

§264.117  Post-closure care and use of property.
     (a)(l) Post-closure care must continue for 30 years after the date of
completing closure and must consist of at least the following:
          (1)  Ground-water monitoring and reporting as apolicable.
         (11)  Maintenance of monitoring and waste containment systems
               as applicable.
     (2)(1)  During the 180-day period preceding closure (see §264.112(c))
or at any time thereafter, the Regional Administrator may reduce the
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post-closure care period to less than 30 years if he finds that the
reduced period 1s sufficient to protect human health and the environment
(e.g., leachate or groundwater monitoring results, characteristics of the
waste, application of advanced technology, or alternative disposal,
treatment, or re-use techniaues indicate that the facility is secure).
     (ii)  Prior to the time that the post-closure care period is due to
expire, the Regional Administrator nay extend the post-closure care period
if he finds that the extended period is necessary to protect human health
and the environment (e.g., leachate or groundwater monitoring results
indicate a potential for migration of waste at levels which nay be harmful
to human health and the environment).
     (b)  The Regional Administrator nay require, at closure, continuation
of any of the security requirements of §264.14 during part or all of the
post-closure period after  the date of completing closure when;
          (1)  Wastes may  remain exposed after completion of closure; or
          (2)  Access by the public or domestic livestock may pose a hazard to
               human health.
      (c)  Post-closure use of property on or  1n which hazardous wastes
remain after closure must  never be allowed  to disturb the integrity of
the final cover,  liner(s), or any other components of any containment
system, or the function of the facility's monitoring systems, unless the
Regional Administrator finds 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,
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     (d)  All  post-closure cars activities  must  be  in  accordance with the
provisions of  the approved post-closure  plan  as  specified  in §264.113.
§264.118  Post-closure plan;  amendment of plan.
     (a)  The  owner or operator of a  disposal  facility must have a written
post-closure plan.  The plan  must be  submitted with the  permit  application,
in accordance  with §122.25(a)(13) of  this Chapter,  and approved by the Regional
Administrator as part of the  permit issuance  proceeding  under Part 124 of
this Chapter.   In accordance  with §122.29 of  this Chapter, the  approved
post-closure plan will become a condition of  any permit  issued. A copy
of the approved plan and all  revisions to the plan  must  be kept at the
facility until the post-closure care  period begins. This  plan  must
identify the activities which will  be carried on after closure  and the
frequency of these activities, and Include  at least:
          »
          (1)   A description  of the planned ground-water monitoring
               activities and frequencies at  which  they  will.be performed;
          (2)   A description  of the planned maintenance  activities,  and
               frequencies at which they will  be performed, to  ensure:
               (i)  The Integrity of  the cap  and final cover or other
                    containment structures  where applicable; and
               (11) the function of the  facility monitoring equipment;
                    and
          (3)   The name, address, and phone nunber  of  the  person or  office  to'
               contact about  the disposal facility  during  the post-closure
               period.  This  person or office must  keep  an updated post-closure
               plan during the post-closure period.
     (b)  The owner or operator may arend his post-closure plan at any
time during the active life of the disposal facility or  during  the post-
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closure care period.   The owner or operator must amend  his  plan whenever
changes in operating plans or facility design,  or events which occur
during the active life of the facility or during the  post-closure  period,
affect his cost-closure plan.  He must also amend his plan  whenever
there is a change in the expected year of closure.
     (c)  When a permit modification is requested during the  active life of
the facility to authorize a change in operating plans or facility  design,
modification of the post-closure plan must be reouested at  the same time
(see §124.5(a)).  In all other cases, the request for modification of  the
post-closure plan must be made within 60 days after the change in  operating
plans or facility design or the events which affect his post-closure pUn
occur.
5264.119  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 zoning authority or  the
authority with jurisdiction over local land use and to  the  Regional
Administrator a survey plat indicating the location and dimensions of
landfill cells or other disposal areas with respect to  oermanently
surveyed benchmarks.  This plat must be prepared and certified  by a pro-
fessional land surveyor.  The plat filed with the local zoning  authority
or the authority with jurisdiction over local land use  must contain a
note, prominently displayed, which states the owner's or operator's obli-
gation to restrict disturbance of the site as specified in 264.117(c).   In
addition, the owner or operator must submit to the local zoning  authority
or the authority with jurisdiction over local land use  and to the Regional
Administrator a record of the type, location, and quantity of hazardous
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wastes disposed of within each cell  or area  of  the  facility.  Fop wastes dis-
posed of before thew rsnulatlons  were promulgated,  the owner or ooerator
must Identify the type,  location and quantity of  the wastes  to  the best of
his knowledge and In accordance with any records  he  has kept.   Any changes
In the type, location, or quantity of hazardous wastes disposed of within
each cell or area of the facility  that occur after  the survey plat and re-
cord of wastes have been filed must be reported to  the local zoning author-
ity or the authority with jurisdiction over  local land use  and  to the Regional
Artninistrator.
§264.120  Notice in deed to property.
     (a)  The owner of the property on which a  disposal facility is located  rcust
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 prooerty
that:
     (1)  The land has been used to manage hazardous wastes;
     (2)  Its use Is restricted under §26A.117(c);  and.
     (3)  The survey plat and record of the  type, location,  and Quantity
of hazardous wastes disposed of within each  cell  or area  of the facility
reouired in §265.119 have been filed with the  local  zoning  authority or
the authority with jurisdiction over local land use and with the Regional
Administrator of the Environmental Protection Agency.
     (b)  If at any time the owner or operator  or any subseouent owner of  the
land upon which a hazardous waste facility was  located removes  the waste
and waste residues, the Uner, 1f any, and all  contaminated underlying
and surrounding soil, he may remove the notation  on the deed to the
facility property or other Instrument normally  examined during  title
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search,  or he may add a notation to the deed  or instrument  indicating
the removal  of the waste.
[Comment:   On removing the waste and waste residues,  the  liner,  if  any,
and the  contaminated soil, the owner or operator,  unless  he  can  demonstrate
in accordance with §261.3  (d) of this Chapter that any  solid waste
removed is not a hazardous waste, becomes a generator of  hazardous  waste
and must manage it In accordance with all applicable  requirements of
Parts 262-266 of this Chapter.]
§§264.121 - 264.139 [Reserved]
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