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
-------
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
-------
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
-------
j,
Thf« fl
-------
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
-------
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
-------
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
•
(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.
-------
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
-------
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
-------
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,
-------
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
-------
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.
-------
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.
10
-------
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
-------
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.
12
-------
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.
L3
-------
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).
14
-------
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
15
-------
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
16
-------
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
-------
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
-------
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
19
-------
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
-------
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
-------
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
-------
(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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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.]
34
-------
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."
35
-------
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.
36
-------
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
-------
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
-------
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
-------
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
-------
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.
41
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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.
52
-------
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
53
-------
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.
54
-------
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.
55
-------
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.
56
-------
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
57
-------
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.
58
-------
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.
59
-------
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,
60
-------
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.
61
-------
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
62
-------
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
63
-------
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.
64
-------
§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
65
-------
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
66
-------
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
67
-------
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.
68
-------
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.
69
-------
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
70
-------
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
71
-------
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
72
-------
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.
73
-------
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.
74
-------
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
75
-------
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
76
-------
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
77
-------
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
78
-------
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
79
-------
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.
80-
-------
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
81
-------
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.
82
-------
§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
83
-------
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
84
-------
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.
85
-------
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
86
-------
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
87
-------
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,
-------
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,
89
-------
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
90
-------
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.
91
-------
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
92
-------
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."
93
-------
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
94
-------
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
95
-------
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,
96
-------
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,
97
-------
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
98
-------
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,
99
-------
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.
100
-------
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.
101
-------
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.
102
-------
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
103
-------
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
104
-------
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
105
-------
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.
106
-------
(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.
107
-------
§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
108
-------
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
109
-------
(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.
110
-------
(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
111
-------
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
112
-------
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)
113
-------
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
114
-------
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]
115
-------
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.
116
-------
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
117
-------
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
118
-------
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
119
-------
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
120
-------
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
-------
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.
122
-------
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
123
-------
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).
124
-------
(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
125
-------
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
126
-------
(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
127
-------
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,
128
-------
(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-
129
-------
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
130
-------
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
131
-------
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]
132
------- |