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HomeMy WebLinkAbout14- Gallik Law firm Notice of ClaimBrian K. Gallik Jecyn N. Bremer Gallik Law Firm, P.C. 421 West Mendenhall PO Box 70 Bozeman, MT 59771-0070 (406)404-1728 John M. Kauffman Kasting Kauffman and Mersen, P.C. 716 North 201h Ave. #101 Bozeman, Montana 59718 (406)586-4383 Kellie G. Sironi Attorney Law P.O. Box 81646 Billings, MT 59108 406-860-9476 Attorneys for Claimants. March 12, 2014 4r"On Fes,.. x`11 2 ;'r'e', T�`1a•y NOTICE OF CLAIMS PURSUANT TO MCA 2-9-301(1) & (3) VIA CERTIFIED MAIL TO: City of Bozeman, Montana City Commissioners City Manager c/o Clerk of Commission 121 North Rouse Bozeman, MT 59715 State of Montana c/o Montana Attorney General P.O. Box 201401 Helena, MT 59620-1401 State of Montana c/o Montana Secretary of State 1301 E. 6`h Avenue Helena, Montana 59620 State of Montana c/o Department of Administration 125 North Roberts St. PO Box 200101 Helena, MT 59620-0101 Honorable Employees and Representatives of the City of Bozeman and State of Montana: We represent the indiViduals listed on Exhibit A who own property and live in Phase III of the Bridger Creek Subdivision, located within the City of Bozeman. As a result of actions by the Cit,, and State of Montana, explained below, they have been damaged by the release and migration of toxic chemicals from the City's landfill and are asserting claims against the Cite and State. While claims may also exist against others, including the Developer and its agents, we submit our Clients' claims to you as required by MCA j 2-9-30Lt I. BACKGROUND. A. Overviev. . Phase III of the Bridger Creek Subdivision is located adjacent to and down gradient from the City's Sanitary Landfill.` The Landfill opened in 1970. From 1970-2008, the City collected revenue and disposed of waste from individuals, businesses, the City, County and other areas that it initially buried in an unlined cell and later in a lined cell. In 1995, Golf Course Partners, Inc., applied to the 1 :FICA § 2-9-301 provides: Filing of elaims against state and political subdiN isions — disposition by state •a$!encv as prerequisite. (1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter must be presented in writing to the department of administration. (2) A complaint based on a claim subject to the provisions of subsection (1) naay not be tiled in district court unless the claimant has First presented the claim to the department of administration and the department has finally denied the claim. The department must grant or deny the claim in writing within 120 days after the claim is presented to the department. The railure orthe department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection. Upon the department's receipt of the claim, the statute or limitations on the claim is tolled for 120 days. The provisions of the subsection do not apply to claims that may be asserted under Title 25, chapter 20, by third -part} complaint, cross-claim or counterclaim. (3) All claims against a political subdivision arising under the provisions of parts 1 through 3 shall be presented to and tiled with the clerk or secretor} of the political subdivision. The landfill is located approximately 2 miles north of Bozeman. the legal description is the SF I14 and SW !., of Section 30, Township I South. Range 6 Bast, in Gallatin Count}, Montana. City for appro%al of Phase HI of its residential development next to the landt'll1, Ill., Ireation of the Subdivision, in relation to the landfill is set forth helm. In 1996, and with no consideration to (or required mitigation of) the knomi environmental problems associated with sanitary landfills, the City approved that Application. In reliance upon the City's reviev� and approval of the subdivision, and the UEQ's review and oversight of the closure, remediation and monitoring of the landfill, our clients, and others, built homes and raised families in the subdivision. Recently, the City announced that toxic substances from the landfill have migrated from its landfill, and continue to migrate, through the groundwater and air, into the homes of Bridger Creek residents, including our clients. While the City and State are taking steps to mitigate this serious public health issue, those efforts are, and will be, inadequate to fully compensate our clients for the damages resulting from their acts and omissions. These issues are discussed below. -4- B. The Knoi�n Hazards Associated with Land Fills in 1995, and the Review and Approval of Bridger Creek Subdivision, Phase 3. Planning for the Bridger Creek Subdivision began in 1985. The developer, Golf Course Partners, Inc. applied to the City for annexation of its property into the City of Bozeman, which was granted. The golf course portion of the property retained its Agrictdtural-Suburban (AS) zoning, with the balance of the development (Phases 1-3) zoned, R1, R3, M1 and B1. In 1995 Golf Course Partners, Inc., applied to the City for approval of Bridger Creek Subdivision, Phases 2 R 3. As a major subdivision, the Application was required to address and satisfy the mandates of the Montana Subdivision and Platting Act, MCA §§ 76-3-101, et. seq. The purpose of this Act is to "[p]romote the public health, safety, and general welfare by regulating the subdivision of land." MCA § 76-3-102(1). The City, in turn, promulgated and adopted regulations designed to further the purpose of the Act. The 1995 Application called for the creation of 47 single family lots and 1 condominium lot in Phase 2, with 44 single family lots in Phase 3, for a total of 92 lots. This proposal was consistent with the City's 1995 Master Plan, that designated the previously annexed Bridger Creek property as "Urban Residential Infill," which allowed single family development at a density of 3-6 dwelling units per acre. To this end, the Subdivision Application noted that "It is anticipated that maul, of the homes will be occupied by, families kith school age children, but at this point the number is unknown." Application, p. 21 (emphasis added). That same year (1995), and following annexation of the residential property at issue, the City expanded its existing landfill by opening a new cell, also adjacent to and upgradient from the Bridger Creek development. Within the Applicant's Environmental Assessment (EA) and Community Impact Report -- prepared in conjunction with the subdivision Application -- Morrison Maierle, the developer's consulting engineer, writes, with respect to the City's new cell: The new cell was recently designed and constructed with the full knowledge that just yonder across the south fence there existed a 35 - acre parcel that was annexed and rezoned R-3. We are talking residential development! -5 - EA, at p. 22 (emphasis added). As discussed in further detail below, the Applicant's application, and the City's analysis, review and approval of that application provided, at best, lip service to the known environmental problems associated with landfills. This is difficult to understand in light of the information known and available at the time the City considered this application. For example, on October 9, 1991, four (4) years before the City approved Phase III of the subdivision without any apparent mitigation requirements for the adjacent landfill, the federal Environmental Protection Agency (EPA) published its Final Report in support of revisions to the Code of Federal Regulations governing solid waste disposal facilities, such as the Bozeman landfill. See Federal Register, Volume 56, No. 196, Wednesday, October 9, 1991, Environmental Protection Agency, 40 CFR parts 257 and 258, Solid Waste Disposal Facility Criteria, Final Rule, pages 50978-51119 (copy attached as Exhibit B). That report discusses the health, safety and environmental issues associated with solid waste landfills, including the leaking and migration of toxic substances, resulting in off-site personal and property damages. Id. at p. 51108-51119.' Not only was it a given that these facilities create health and safety risks, the EPA stated bluntly that "Risk witl increase if population living near landfills increases, as is likely in the future. 56 CFR at 50985 (emphasis added). There is a large body of literature on the potential adverse health effects of waste management options, particularly from landfill and incineration. One of the most widely known and publicized landfill sites is that of Losc Canal in Ness York. There, large quantities of toxic materials, including residues from pesticide production, were deposited in the 1930's and 1940's. followed by the building of houses and a school on and around the landfill in the 1950's. By the mid 1970's, chemicals leaking from the site were detected in local streams, sessers, soil and indoor air of houses. One long-time resident of the area is reported to have said, over ten (10) years before the City approved Phase 3, "[cv]e knew they put chemicals into the canal and filled it oxer, but sve had no idea the chemicals would invade our homes. w'e're worried sick about the grand children and their children." Beek, Die Lore Canal Tragedy, EPA Journal, January 1979. That site, and subsequent studies of the health of the surrounding population, fueled awareness on the significant problems of waste disposal practices, including federal and state legislation which, ironically, preceded the City's approval of the Bridger Creek Subdivision. See. generally, Beck,.sulwa. See also, Exhibit B, 56 CFR at 50979. -6 - The EPA's 1991 publication also addressed landfills, like the City of Bozeman's, that had been in operation prior to regulations adopted in 1980, that banned the acceptance of hazardous waste in sanitary landfills, In response to criticisms that the list of monitoring requirements for hazardous substances we too extensive, EPA wrote: For several reasons, EPA believes that it is appropriate for constituents on appendix II to generally be consistent with the constituents required for compliance monitoring under subtitle C of RCRA. First, hazardous wastes were routinely disposed of in Municipal solid waste landfills before the amendments to RCRA were promulgated in 1980 .... Second, municipal solid waste landfills may receive hazardous waste from small quantity generators (SQG) and household hazardous waste (HHW) Multiple SQL's and multiple sources of HHW may collectively result in substantial quantities of hazardous wastes at MSWLFs Further MSWLFs may not have adequate engineering controls (e.v— either a natural or svnthetic liner and a leachate collections system) to prevent hazardous wastes from contaminatinv groundwater, Exhibit B, 56 CFR at 51080 (emphasis added). Each of the foregoing statements, made several years before the City considered and approved a residential subdivision immediately adjacent to and down gradient from an unlined landfill, in existence for years prior to the 1980 amendments banning the wholesale disposal of hazardous wastes, applied to the City's landfill. Yet, as the City's file makes clear, none of these issues was on the City's radar when reviewing and approving this subdivision. Although the 1991 study, attached as Exhibit B, dealt primarily with regulations governing landfill waste migrating into the groundwater, and then spreading, and was not, in the EPA's own words, "comprehensive," the EPA recognized the existence of significant concerns related to air emissions from landfills, stating that the Agency elected to address those concerns with proposed emission controls for municipal landfills under the authority of the Clean Air Act. Exhibit B, 56 CFR at 50981. -7 - Finally, the EPA noted the existence of, and expectation for future, --off-site personal injury and property damage" claims because of the environmental and health hazards associated with landfills. Exhibit B, 56 CFR at 5 1108-51109. Although it recognized that those risks will increase if people are allowed to lige near landfills, id. at 50985, it "deferred" adoption of financial responsibility requirements for two reasons: In the preamble to the proposed rule, the Agency indicated that it considered, but chose to defer, adoption of financial responsibility requirements for third -party liability claims arising from off-site personal injury or property damage. The reasoning for this deferral was twofold. First ... the Agency had insufficient data to set appropriate levels of third -party liability, coverage for MSWLFs. Second, the Agency was concerned that owners and operators of MSWLFs would encounter difficulties in obtainingfinancial assurance mechanisms to fiilf ll this t-equirement. The Agency requested data and other information regarding appropriate levels of third -party liability coverage. As discussed in the preamble to the proposal, some data concerning, the types of off-site property damage and bodily injury that could be associated with the operation of a MSWLF are currently available. The inherent limitations of these data, however, do not provide the Agency xvith an adequate basis upon which to determine appropriate coverage levels. Other hazards for which fewer data are currently available (e.g., releases to ground and surface water) could also contribute significantly to potential liabilities faced by owners and operators of MSWLFs and therefore must be given consideration in the development of third -party liability coverage levels. Given that a majority of owners and operators of MSWLFs are local government entities, the Agency believes that State governments -b - could become actively involved in the development and sponsorship of financial assurance mechanisms for third -party liability or in providing financial assurance through various tunding schemes. Today's regulation allows States to explore and implement alternatives to traditional mechanisms for compliance with colsoure and post -closure care and corrective action financial assurance requirements. Exhibit B, 56 CFR at 5 1108-51109 (emphasis added). In sum, four (4) years before the City considered and approved Bridger Creek Subdivision Phase 3, (1) it was an accepted fact, that hazardous wastes were "routinely'' dumped into landfills before 1981; (2) that hazardous wastes continued to be dumped into landfills, along with other wastes; (3) that the wastes could and did migrate into the groundwater and created air emissions issues; and 4) there was available "data concerning the types of off-site property damage and bodily injury" that could be associated with the operation of landfills. Notwithstanding this knowledge, it is clear that neither the Applicant, City or State considered these facts when reviewing and approving the subdivision or requiring mitigation of known risks. Returning to the subdivision at issue, the City's initial review of the 1995 Application observed that the Superintendent of Street/Sanitation requested a one hundred (100) to one hundred and fifty (150) foot buffer area between the existing landfill and any housing development along Phase III in order to protect the future residential phases of Bridger Creek Subdivision from any impact which may be attributed from the existing landfill facility, stating "[i]t is critical that some sort of butter zone prevail between the two properties ...." Staff Report, dated 1995. In response, Golf Course Partners discussed adjacent land uses, including the Landfill and the City's desire for buffering: With the exception of the Bozeman Landfill on the north border of Phase 3, this development does not adversely impact adjacent land uses. Other than the adjacent landfill there are no hazards or nuisances associated with any on-site activities. -9 - Phase 3 dedicates a 100 -foot wide parkland buffer for distance of over 1250 feet along the easterly half of the north boundary of Phase 3. This 100 -foot strip begins at a point on the west where the local topography screens much of the landfill from Phase 3. A 30 -foot trail corridor runs the length of the new landfill cell which is generally not visible from Phase 3. The applicant believes that the combination of a 30 -foot buffer provides adequate separation between the residential uses and the landfill and also provides a location for others to construct a connecting trail from McIlhattan Road to Story Mill Road. We have provided the greatest separation in the vicinity of the existing cell realizing the necessity of this action, but we do not believe it should fall upon the applicants' shoulder to provide the same buffer adjacent to the newly- constructed cell. If the City of Bozeman and staff believe that this is important, then we suggest that the buffer should have been part of the expansion of the landfill. A 100 -foot or I50 - foot buffer together with a landscape screen on City property would seem appropriate. If a uniform 100 or 150 foot buffer, as proposed by staff, is indeed required as a condition of preliminary plat, then the applicant will view this as a taking of land. 1. The landfill is scheduled to be closed in 7-15 years .... At this future point in time the necessity for a buffer largely goes away, unless of course the City is caught up in performing remedial measures designed to mitigate environmental impacts. 2. The landfill wasn't necessarily "there first." Granted, the existing landfill has been there for many years, but it does not predate the surrounding agricultural lands. And the new cell was recently designed and constructed with the Hill knowledge that jList yonder across the south fence there existed a 35 acre parcel that was annexed and rezoned R-3. We are talking residential development! -10 - Application, pp. 21-22 (emphasis added). The City Planning Department prepared a report and, on February 13, 1996, the City's Development Review Committee ("DRC") considered the Application. The purpose of DRC review was to review the Application, including proposed conditions to protect health, safety and welfare, and make a recommendation on the project to the City Planning Board and, ultimately, the City Commission. At the DRC meeting, City Staff presented recommended conditions of approval, including a 100' continuous buffer between Phase III and the existing City Landfill. The Applicant resisted this recommendation. Eventually, the Application and the buffer issue was submitted to the Bozeman City -County Planning Board for consideration. In its staff report, the City Planner noted that the "[d]epth to groundwater is seasonal in the area of Phase 2, were [sic] a depth of 3.7 feet below surface has been observed by the applicant, and a depth of 8.0 feet below the surface in Phase 3. As municipal services ... will be extended to the proposed subdivision phases, no impact to the groundwater or aquifer is anticipated. Groundwater monitoring wells in Phase 2 will be used to better assess the need for special construction techniques and materials during construction of utilities and roads. The applicant proposes to amend the covenants of the homeowner's association to prevent the construction of basements in Phase 2. However, basements will be permitted in Phase 3. Staff Report, p. 4. With respect to soil, slopes and geology, the Staff Report states: [P]hase 2 contains gentle slopes to the northwest at slopes ranging from 0 to 4 percent. Phase 3 on the other hand is comprised of alluvial fan deposits where the slopes range from 3 to 16 percent. Wendy Williams, resource Conservationist, Soil Conservation Service, identifies the soils in Phase 2 as 509B, Enbar and in Phase 3 as 450D, Blackdog. The Blackdog soils has a moderate limitation for building sites due to slope, which can range from 8 to 15 percent, and moderate frost action and shrink well. The Enbar soil has hydric inclusions with generally high ground water from 2.5 to 5 feet from surface and has a high potential for frost action, which can affect roads and buildings. The Enbar can be loamy, sandy loamy to gravelly and are not vele structurally sound, especially when high water tables are involved .... Id. At page 16 of the Staff Report, the Planning Department discussed the "Effects on Public Health and Safety." The report did not mention, or discuss, the adjacent landfill. Id. at p. 16. Staff did recommend, however, a continuous 100 - feet buffer between Phase 3 of the development (Lots 15-22) and the existing City Landfill which, as stated, appeared to be the result of concerns about odors and blowing debris. At the public hearing before the Planning Board, 2 members of the public appeared to "[s]peak neither for or against the proposal but voiced concerns regarding, among other things, impacts from the City of Bozeman Landfill." The Applicant voiced continued opposition to the requested buffering. After consideration, the Planning Board voted 8-1 to recommend approval of the Application, as conditioned, with the exception that it deleted the condition that the Applicant build the 100 foot buffer between the Subdivision and the Landfill, determining that the applicant's proposal was adequate. On April 15, 1996, the Bozeman City Commission met and considered the Application and voted to approve the Application as recommended by the Planning Board. In its Findings of Fact, the City Commission, stated in part: [R]ex Easton, applicant representing Golf Course Partners, Inc., discussed the history of the proposed development with its beginning in 1987. Mr. Easton questioned Why the City of Bozeman did not consider buffering the landfill from adjacent uses during the expansion of the facility.... Findings of Fact, p. 2. -12 - Golf Course Partners later completed the conditions of preliminary plat approval and made application to the City of Bozeman for final plat approval. The City granted that approval and Golf Course Partners, Inc., recorded the final plat of Bridger Creek Subdivision, Phases 1I and I11. Thereafter, the lots created by the subdivision, designed by Golf Course Partners and approved by the City of Bozeman, were made available to the public. Individuals, including our Clients, identified on Exhibit A, purchased land, built homes, or purchased existing homes within the Subdivision, in reliance upon the City's determination -- through the subdivision review and approval process -- that the property was safe for human habitation. Our investigation indicates that the City of Bozeman has been taking bi- annual groundwater samples in the vicinity of the Landfill, since 1981. The City in turn made application to and received permits from the DEQ with respect to the closing of the Landfill and its subsequent operation. In 1997 the City installed a gas extraction system designed to address the most common landfill bi-product — methane. In 2007, the DEQ received a letter from Tetra Tech, Inc, on behalf of the City of Bozeman, requesting a modification to Permit Number 2951-03 . In 2008 the City closed the Landfill under the review and approval of the DEQ. In March, 2013, KBZK reported: "Bozeman neighborhood being tested for landfill contamination." This was the first our Clients learned of the potential for contamination in, or around, their property and homes. Approximately one (1) month later, Tetra Tech, on behalf of the City of Bozeman, released a 174 -page "Report of Groundwater Monitoring Activities Completed by Tetra Tech, dated December, 2012" that had been previously sent to the City of Bozeman. That Report is available on the City's web page and by this reference incorporated herein. The report contains historic data and statistical analysis of all previous groundwater sampling events as far back as 1994. Supplemental reports followed, revealing the presence of high levels of Volatile Organic Compounds ("VOCs") in the soils and below the homes of the residents of the subdivision, including those owned by our Clients. Eleven (11) different VOCs were found in the testing. kvith no home containing all 1 I compounds. The level of VOCs varied from home to home. 1-lowever, the level of VOCs in several homes required immediate design and installation of mitigation systems. Common compounds found in the testing were benzene, chloroform (used in things like paint thinner, adhesives and cleaning solvents), carbon tetrachloride and other toxic substances, harmful to human health. In presentations to the impacted residents and members of the public, including our Clients, Tetra Tech presented information, including diagrams on how VOCs in the landfill leached into the soil and the groundwater and, due to the nature of the soils and high water table, migrated from the landfill to the property and homes located in the Subdivision, including those of our Clients. That same report makes clear that "VOCs tend to accumulate under houses ... and can migrate through concrete floors into houses." Emissions from landfills (only a few of which can be smelled and none of them are visible) not only impact property values, they increase the risks of illness, cancer, death and genetic damage from chronic exposure to even low levels of pollutants that escape from these sites whenever leachate and gas collection efforts are inadequate — as they are in this case. The Environmental Protection Agency ("EPA") has listed one hundred and eighty-seven compounds as hazardous air pollutants found in landfill gas. See. e.g. Thorneloe, Background Information Doci«nent for' Updating AP42 Section 2.4 for Estimating Emissions from Municipal Solid 4 aste Landfills, U.S. EPA, September 2008. See also Federal Register, Vol. 56, No. 196, Wednesday, October 9, 1991 at 51033-51038, Appendix II to Part 258 (Listing Hazardous Inorganic and Organic Constituents by common name and chemical abstracts service index name that were known to pose a risk to human health and the environment and that could potentially migrate to groundwater) and page 51080 (discussing list of constituents). Some of the major hazardous air pollutants released from landfills are benzene, carbon tetrachloride, hydrogen sulfides, touluene, tricholoroethylene, vinyl chlorides and xylenes. Id. While testing, analysis and our own investigation continues, residents of the Subdivision, including our Clients, have suffered damages from the actions of the City and State, including diminished property values, involuntary exposure to toxic substances and corresponding health risks, and other damages. It is for these -14 - reasons they retained our law firms and seek compensation From the City, State and other potentially responsible parties for their damages. IL LEGAL THEORIES. A. Introduction. It is long-established that the police power of the state is inherent in the sovereign power of the state to regulate private conduct to protect and further the public welfare. See, e.g., Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894). This police power antedates the federal and state constitutions and is designed to protect and promote the public health, safety, and general welfare. Where, as here, the State and City exercise this power to control land use, and development, including the authorization of development, it must exercise its sacred duty to protect the public health, safety and general welfare through identification of reasonably foreseeable risks and hazards and impose conditions that mitigate those risks and, if not capable of mitigation, the government has the duty to deny the proposed development. It is clear that the risks associated with the proposed Subdivision, as evidenced by groundwater and other studies, were reasonably foreseeable. It is also clear that the City and State breached their individual and collective duties to our Clients through, among other actions or inactions: 1. Approval of the Application of the subject property for annexation into the City and zoning that property as residential property, knowing it was down gradient of landfill containing an unlined cell with hazardous substances; 2. Locating a second cell up gradient of property zoned for residential development; 3. Approving a residential subdivision immediately adjacent to and down gradient from both cells without undertaking any relevant analysis or assessment of the of the hazards and/or potential environmental and health effects of leachate or landfill gas generation and migration; -15- 4. failing to properly identify and mitigate the foreseeable risks associated with the Landfill property, including inadequate control of the generation and migration orgases related to the Landfill. assessment of the risks and hazards known for man,, years to be associated with closing landfills and redevelopment of property on and adjacent to the landfill; 5. inadequate assessment, remediation and closure of the existing cells; and 6, failing to warn, or require the developer to warn, knowing the public is relying upon their individual and collective expertise and determinations that it was safe to purchase real property, construct improvements and live and raise families on that property. B. Specific Theories of Relief. At the present time, and subject to further investigation, we anticipate asserting the following legal theories against the City, State, and others responsible for the development and sale of the real property at issue: 1. Negligence; 2. Trespass; 3. Nuisance; 4. Violation of the Montana Constitution; 5. Inverse Condemnation; and 6. Potential claims under the Private Property Assessment Act of 1995, MCA §§2-10-101, et. seg. Theories of relief may also exist against the City and State under federal environmental laws that provide remedies for damages and costs resulting from the o��nership, maintenance and operation of property known, or discovered to have, environmental contamination. -16- C. Damaees. At the present time, and subject to further investigation, we anticipate asserting the following claims for damages, in addition to injunctive relief; for each of our clients: Diminished property values from the contamination of their properties and resulting stigma from public perception of risk associated with owing property or living in the subdivision; ?. Increased risks associated with involuntary exposure to hazardous substances and vapors; 3. Emotional distress resulting from exposure to potentially hazardous substances, including exposing their children to the substances; 4. Medical monitoring; 5. Costs associated with remediating contamination in the soil and groundwater (see, e.g., Sunburst v. Texaco); 6. Affirmative equitable relief to eliminate any risks posed by the toxic wastes; and 7. Attorneys' fees and costs to the extent allowed by law. IV. CONCLUSION. Our Clients reasonably relied upon the City and State to exercise their police power of protection of the public health, safety and welfare when it made the land use decisions discussed above. The City and State negligently exercised those powers through locating a portion of the landfill up gradient from property designated as residential infill and later by approving the subdivision down gradient from the landfill. The City and State negligently operated the Landfill by failing to properly control the creation of hazardous gases and their migration from the Landfill boundary. In addition, the City, and State were, upon information and belief, negligent with respect to its assessment of the hazards associated with -15 - Sloss and Fabian, The State University ofNe�� fork (Buffalo), Love Canal Collections, Background Information. �Ve look forward to discussing these issues with you in an effort to resolve their claims short of litigation. RESPECTFULLY SUBMITTED this 1Z day of March, 3914. GALLLIK LAW FIRM, P.C. KASTING KAUFFMAN & 1NIERSEN, P.C. and KELLIE I By: Brian K. Gallik ATTORNEYS FOR CLAIMANfS EnclOSnres A: Names and Addresses of Claimants B. Federal Register, Volume 56, No. 196, Wednesday, October 9, 1991. c: Montana DEQ (via certified mail) (with enclosures) Bozeman City Commissioners (via certified mail) (with enclosures) Bozeman City Manager (via certified mail) (with enclosures) Bozeman City Attorney (via certified mail) (with enclosures) GolfCOnrse Partners, Inc. (via certified mail) (with enclosures) Clients (with enclosures) EXHIBIT A Daenen, Mikel & Charles (Lot 35 ) 938 St. AndreRS Drive, Bozeman, %IT 59715 I tokanson, Gay le Spitzer, GarrS (Lot 27) 644 St. Andrews Drive, Bozeman, MT 59715 Kelleher, Abi and Brendan (Lot 22) 485 St. Andrews Drive, Bozeman. MT 59715 McNally, Cathy (Lot 23) 522 St. Andrews Dr., Bozeman, MT 59715 Olsen, Sue & Carl (Lot 14) 753 St. Andre�Ns Drive, Bozeman, MT 59715 Patton, Alyssa and Jerome (Lot 17) 1316 8°i Ac c., Helena, NIT 59601 Rydberg. Lori and Donn (Lot 44) 1079 Caddie COnrt, Bozeman, MT 59715 Verellen, Julie and Jim (Lot 34) 902 St. Andrews Drive, Bozeman, MT 59715 W - Part 11 Environmental Protection Agency 40 CFR Parts 257 and 258 Solid Waste Disposal Facility Criteria; Final Rale 50970 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 J Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY EEPA/OSW-FR-91-004 FRL-4011-91 40 CFR Parts 257 and 258 Solid Waste Disposal Facility Criteria AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency today is promulgating revisions to the Criteria for Classification of Solid Waste Disposal Facilities and Practices act forth in 40 CFR part 257. These revisions were developed in response to the 1954 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act (RCRA). Today's rule adds a new part 258, which eels forth revised minimum federal criteria formunicipal solid waste landfills [MSWI,Fs), including location restrictions, facility design and operating criteria, ground -water monitoring requirements, corrective action requirements, financial assurance requirements, and closure and post. closure care requirements. The rule establishes differing requirements for existing and new units (e.g., existing units are not required to remove wastes in order to Instal( liners). In addition, toddy's rule amends part 257 by making conforming changes that make it consistent with the new part 258. The specific criteria by which State programs will be approved will be published in a separate rule, which is expected to be proposed in early 1992. This rulemaking also fulfills a portion erEPA'a mandate under section 405(d) of the Clean Water Act (CWA) to promulgate regulations governing the use and disposal of sewage sludge, Part 258 of today's rule Is co -promulgated under the authority of the CWA and applies to all MSWLFs In which sewage sludge Is co -disposed with household wastes. A separate regulation for sludge monofills (landfills In which only sewage sludge is disposed of) was proposed on February 8,1989, under part 257 and part 503. The sludge monofill regulaltone are expected to be Onal zed by the end of 1991. EFFECTIVE DATE: October 9,1993, except subpart G of part 258 is effective April 9. 1991. ADDRESSES: The public record for this rulemaking (docket number F-91- CMLF-FFFFF) is located at the RCRA Docket Information Center, (OS -305), US, Environmental Protection Agency Headquarters, 401 M Street, SW., Washington, DC 20480. The public docket is located at EPA Headquarters and is available for viewing from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Appointments may be made by calling (202) 475-9327. Copies cost $0.15/page. FOR FURTHER INFORMATION CONTACT: For general information, contact the RCRA/Superfund Hotline, Office of Solid Waste, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460,(800)424-9346, toll-free, or (703) 920-9810, local in the Washington, DC, metropolitan area. For more detailed information on specific aspects of this final rate, coritact Allen Geswein, Paul Cassidy, or Andrew Teplitzky, Office of Solid Waste [OS -301), U.S. Environmental Protection Agency, 401 M Street. SW., Washington, DC 20460, (202) 266-1099. SUPPLEMENTARY INFORMATION: Copies of the following document are available for purchase through NTIS, U.S. Department of Commerce, Springfield, Virginia 22161,1 (800) 553-6847 or (708) 487-0650: (1) U.S. EPA, Office of Solid Waste, December 1990 Regulatory Impact Analysis (RIA) and the August 1991 Addendum for the Final Criteria for Municipal Solid Waste Landfills -{40 CFR part 258) --Subtitle D of the Resource Conservation and Recovery Act (RCRA). August 1991. Preamble Outline 1. Authority U. Background A. Current Solid Waste Controls Under RCRA and the CWA 1 RCRA Subtitle D Criteria 2- Sewage Sludge Criteria B. Report to Congress on Solid Waste Disposal . C. EPA Concerns Regarding Local Government and Indian Tribe Impacts D. EPA'a Solid Waste "Agenda for Action' 1. Increasing Information 2. Improving Integrated Waste Management Planning 3. Increasing Source Reduction 4. Increasing Recycling 5. Improving Municipal Waste Combustion 6. Improving Municipal Solid Waste Landfilling E. Summary of Proposed Rule CL RegulatoryuApproach of Today's Final R A. Statutory Basis B. Regulatory Options Considered and Summary of the Regulatory Impact Analysis 1. Risk and Resource Damage Analysis 2.Other benefits 3. Costa and Economic Impacts 4. Selection of Today's Regulatory Approach C. Pollution Prevention Aspects of Final Rule IV. Major Issues A. Smell Landfills B. Regulatory Structure - C.Implementation and Enforcement 1. Procedures for State Program Approval 2. Public Participation 3. Enforcement Considerations D. Ground -Water Policy 1. Differential Protection of Ground Water 2. Well Head Protection Programs E. Issues Pertaining to Sewage Sludge 1. Pollutant Limits for Sewage Sludge 2. Removal Credits V. Summary of Amendments to part 257 A Conforming Changes to part 257 B. Notification and Exposure Information Requirements V1. Summary of part 258 A. Subpart A -General B. Subpart B -Location Restrictions C. Subpart C -Operating Criteria . D. Subpart D -Design Criteria E. Subpart E -Ground -water Monitoring and Corrective Action F. Subpart F --Closure and Post -Closure Care G. Subpart G -Financial Assurance Criteria VII. Implementation of Today s Rule VIII. EPA Training on Final Rule IX Paperwork Reduction Act X. References - Xl. List of Subjects A. Pert 257 - B. Part 258 Appendix A. [Reserved] Appendix B. Supplemental Information for Subpart A -General 1. 1258.1 Purpose, Scope, and Applicability a. Closed Facilities b. Controls on Municipal,Waste Combustion c. Rule Effective Dale 2. § 238'.2 Definitions �S. § 258.3 Consideration of Other Federal Laws Appendix C. Supplemental Information for Subpart B -Location Restrictions 1. It 258.10 Airport Safety 2. 4 258.11 Floodplain 3. § 258.12 Wetlands 4. § 258.13 Fault Areas S. it 258.14 Seismic Impact Zones 0. § 258.15 Unstable Areas 7.1258-16 Closure of Existing Units 8. Other Location Areas 9. Wellhead Protection Appendix D. Supplemental Information for Subpart C -Operating Criteria 1. § 258.20 Procedures for Excluding the Receipt of Hazardous Waste 2. § 258,21 Cover Material Requirements 3. § 258.22 Disease Vector Control 4. § 258.23 Explosive Cases Control 5. It 258,24 Air Criteria 6. 1258.25 Access Requirements' 7. § 258.26 Run-on/Run-off Control Systems .8. 1258.27 Surface Water Requirements 9. § 258.28 Liquids Restrictions .. 10. § 258.29 Recordkeeping Requirement, Appendix E. Supplemental Information for Subpart D-Deslgn Criteria • . 1. Overview of Proposed Rule . 2. Summary of Comments 3. Evaluation of Proposal and Allemandes 4 Filial Rule Approach . f•r Federal'Re'gisier / Vol.. 56, No. 1913'/ Appendix F. Supplemental Information for Subpart FrGround-Water Monitoring end,Corrective Action Appendix G. Supplemental Infuriation for Subpart F—Closure and Post -Closure Care Appendix H. Supplemental information for Subpart C—Financial'Assurence Criteria I. Authority ' Today's rule is being'promulgated" under the authority of sections 1008, 2002 (general rulemaking authority), 4004, and 4010 of the Resource - - - Conservation and RecoveryAct of 1978, as amended. Section 1008 directs EPA to publish guidelines for solid waste management, including criteria that. define solid waste -management. practices that constitute open dumping and are prohibited under subtitle D of RCM Section 4004 further requires EPA to promulgate regulations containing criteria for determining Which facilities are open dumps: Section 4010, added by the. Hazardous and Solid Waste Amendmeots of 1984 (HSWA), directs EPA to revise the criteria promulgated under section ioUB and 4004 for facilities that may'receive hazardous household waste (HHW) or small quantity generator (SQG) hazardous waste. - The part 258 regulations are "also - being promulgated `under the'authority Of section 405 of the CWA and will apply to municipal solid waste landfills in which sewage sludge is disposed of together with household wastes ("co - disposed sludge"). Section 405(d) requires EPA to establish sewage sludge use and disposal standards for the toxic pollutants in sewage sludge adequate to protect public health and the - environment against reasonably anticipated adverse effects of the pollutants. Section 405(e) prohibits any person fromdisposing of sludge from a publicly -awned treatment works - (POTW) or other treatment works treating domestic sewage except in accordance with the section 405(d) regulations. The regulations promulgated here today will fulfill EPA's CWA requirement to. establish . standards for sewage sludge that is co- disposed with municipal solid waste: II. Background A. Current Solid Waste Controls Under RCRA and the CWA 1. RCRA Subtitle D Criteria Subtitle D of RCRA establishes a " framework for Federal, State, and local government cooperation in controlling the management of nonhazardous solid waste. The Federal role in this arrangement is to establish the overall :dnesday, October 9, 1991 / Rules and Regulations 509, regulatory direction, by providing minimum nationwide standards for - protecting human health and the environment, and to provide technical assistance to States for planning and developing their own environmentally sound waste management practices, The actual planning and direct implementation of solid waste programs under subtitle D, however, remain largely State and local functions, and the act authorizes States to devise programs to deal with State=specific conditions and needs. EPA retains the authority to enforce the appropriate standards in a given State. - Under the authority of sections 1000(a)(3) and 4004(x) of subtitle D of RCRA, EPA first promulgated the _ Criteria for Classification of Solid Waste Disposal Facilities and Practices (40 CFR part 257) on September 13, 1979. These subtitle D Criteria establish. minimum national performance - standards necessary to ensure that "no reasonable probability of adverse, effects on health or the environment" will result from solid waste disposal facilities or practices. A facility or practice that meets the Criteria is. classified as a "sanitary landfill." A facility failing to satisfy any of the Criteria is considered an "open -dump" ; for purposes of State solid waste management planning. State plans developed pursuant to the Guidelines for Development and Implementation of State Solid Waste Management Plans (40 CFR part 250) must provide far closing or upgrading all. existing open dumps within the State. ' Practices not complying with the Criteria also constitute "open dumping" for purposes of the Federal prohibition on open damping in section 4005(a). EPA does not have the authority to enforce the prohibition directly (except in situations involving the disposal or handling of sludge from publicly -owned treatment works, where Federal enforcement of POTW sludge -handling facilities is authorized under the CWA). However, the "open damping" prohibition may be enforced by States and other persons under section 7002 of RCRA. ' The existing part 257 Criteria include general environmental performance standards addressing eight major topics: Floodplains (§ 257.3-1), endangered species (§ 257.3-2), surface water . (§ 257.3-3), ground water (§ 257.3-4), land. application (§ 257.35), disease (§ 257.3-01, air (12.57.3-7), and safety. - (§ 257.3-8). , 2. Sewage Sludge Criteria The existing part 257 Criteria discussed above were ca promulgated under joint authority of RCRA and section 405(d) of the CWA. The part 257 regulations.thus apply to all sludge, disposed of on land. Under section 405(e), it Is unlawful to dispose of sludge for any use for which regulations have been established under the CWA except in accordance with these regulations. In February 1987, Congress enacted the Water Quality Act of 1987, which amended portions of the CWA, including section 405. First Congress expanded section 405(d) to impose new standard-setting requirements with associated deadlines. Second, Congress established new sludge permitting requirements in section 405(f) along with State program requirements. EPA has proposed sludge regulations under section 405(d), published at 40 CFR parts 257 and 503, on February 5, . 1989 (54 FR 5748-5902). The proposed part 503 regulations would establish standards for the incineration, land application, and distribution and marketing of sludge. They also would establish standards for sludge disposed of in monofills, which are landfills in . ' which only sewage sludge is disposed of (i.e., no other type of solid waste is co - disposed with the sewage sludge) and in surface disposal units (sludge placed on the surface of the land in piles). The - sludge proposal does not include standards for the co -disposal of sewage municipal solid waste landfills. Rather, those standards for the co -disposal of sewage sludge and household Wastes in landfills are established in today's final rule. Ey this action, the Agency seeks to achieve consistency in its regulation. under two legal authorities of a single disposal practice=the co -disposal of, sewage sludge and other solid wastes in municipalsolid waste landfills. A Report to Congress on Solid Waste Disposal Iaresponse to the 1984 Hazardous and Solid Waste Amendments, EPA completed a study on the adequacy of the existing Criteria to protect human health and the environment from all subtitle D facilities, except those addressed in other EPA reports to Congress, such as mining waste facilities. In conducting the study, EPA gathered detailed data on the characteristics and quantities of nonhazardous solid wastes, including municipal solid wastes:In addition, EPA evaluated the characteristics and potential human health and environmental Impacts of solid waste disposal facilities. Finally, the Agency: reviewed theFederal"and State solid waste regulatory piograms'to identify 50900 Federal Register / Vol. 58, No, 198 J Wednesday, October 9. 1991 / Rules and Regulations any areas of inadequacy. In October 1988, EPA submitted the results of the study to Congress in a report entitled. "A Report to Congress: Solid Waste Disposal In the United States." (Ref. 1) The preamble to the August 30,1988 Proposal of this rule (53 FR 33314) contained a discussion of the findings of this study. The results of this study confirmed that the United States Is In the midst of a municipal solid waste disposal crisis. EPA's most recent data show that in 1988 the nation generated nearly 180 million tons of municipal solid waste and that this quantity would likely grow to 218 million tons by the year 2000. This growing volume of waste is coupled with a steadily decreasing availability of disposal capacity. In a 1988 EPA survey (Ref. 2), 45 percent of the municipal solid waste landfill owners/ operators reported that their landfills would reach capacity by 1991. Today's disposal capacity crisis is further compounded by the difficulty in siting new solid waste management facilities. G EPA Concerns liegarding Local Government and Indian Tribe Impacts The municipal solid waste crisis comes at a time when local governments and Indian Tribes are faced with a wide range of competing demands for their limited financial and technical resources. Schools, roads, social programs, public health and environmental programs, Including solid waste management, and other programs draw on limited local resources, forcing cities and Tribes to make tough budget decisions. EPA recognizes and Is very sensitive to these difficult conditions that local governments and Indian Tribes face and Is carefully considering the impacts of Its environmental programs on local governments and Indian Tribes. As part of this effort, EPA carefully considered the concerns of local government and Indian Tribes in today's rule for municipal solid waste landfills. Within the constraints established by - Congress. EPA has provided in this rule extensive flexibility to States; Indian Tribes, and local governments to facilitate implementation. For example, today's rule sets forth a set of flexible, na0onal performance standards that allow owners and operators, including local governments and Indian Tribes, to consider site-speci0c conditions In designing and operating thelr landfills to comply with the rule Today's rule also establishes a flexible compliance schedule. Including the phase-in of ground -water monitoring requirements over a five-year period from the date of pub( cation of today's rule. Finally, as discussed later in this preamble, today's rule provides special relief to small communitles and Indian Tribes. Municipal solid waste landfills that serve small communities and Indian Tribes which meet certain criteria are exempted from certain high-cost requirements (See § 258.1(0). EPA also is stepping up its efforts in providing technical assistance to local governments on municipal solid waste management issues. As discussed in the next section, the Agency has developed a national strategy for addressing the nation's municipal solid waste problem that calls for action by all levels of government, industry, and the general public. In Implementing this strategy, EPA has worked with the States in launching numerous new technical assistance programs aimed at local governments. For example, EPA issued a wide range of information materials on topics such as recycling and siting of solid waste management facilities, which are critical to local governments. EPA plans to continue to work with States in providing this much-needed assistance to local governments. D. EPA's Solid Waste 'Agenda for Action" In response to the growing national concernabout the solid waste disposal crisis, EPA developed a national strategy for addressing the municipal solid waste management problems. This strategy is set out in a document entitled, "The Solid Waste Dilemma: An Agenda for Action." (Ref. 3) which the Agency issued in final form in February 1989. The strategy describes a wide range of activities that must be undertaken by various parties, including government, industry, and the general public, to bring our municipal solid waste management problems under control. EPA expects to issue an update of the Agenda In the near future. The cornerstone of the strategy Is "integrated waste management," where the following solid waste reduction and management options work together to form an effective system: source reduction, recycling, combustion, and landfilling. In keeping with the Agency's policy of pollution prevention, which is discussed below, the strategy strongly' encourages the use of source reduction (i.e., reduction of the quantity and toxicity of materials and products entering the solid waste stream) followed by recycling as first steps in a solid waste management system. These techniques can then be complemented by environmentally sound combustion and landfilling. The atrategy sets out three national' goals for municipal solid waste management: (1) Increase source - reduction and recycling; (2) increase - disposal capacity and improve secondary material markets; and (3) improve the safety of solid waste management facilities. To promote the attainment of the first goal, EPA established a national goal of 25 percent source reduction and recycling of municipal solid waste by 1992. EPA's "Agenda for Action' identifies a series of actions or activities that must be carried out to achieve the above national goals. These activities seek to (1) increase the amount of information available to all parties on municipal solid waste management; (2) increase effective integrated waste management planning by local governments, States, Indian Tribes, and industry; (3) increase. use of source reduction; 14) increase recycling; and (5) improve the design and management of municipal waste combustors and landfills. EPA has made significant progress in completing the activities and attaining the national goals outlined in the "Agenda for Action." The following describes some of the most significant actions EPA has completed in implementing the "Agenda for Action." 1. Increasing Information The Agency has completed numerous educational materials and programs aimed at assisting State and local governments and others in dealing with municipal solid waste management problems. For example, EPA issued the fust volume of the "Decision Makers .Guide to Solid Waste Management." (Ref. 4) which provides essential information on all aspects of solid waste management for local government officials. The Agency also published a comprehensive bibliography of information on municipal solid waste management and a guide to public Involvement in siting municipal solid waste management facilities. In addition, EPA has established an -Information clearinghouse and peer matching program (through which experienced solid waste professionals provide assistance to their peers). In February 1989, the Agency held a national conference to identify and discuss municipal solid waste research needs. EPA Is continuing to develop additional information materials and programs. For example, EPA sponsored a major national conference on municipal solid waste management In June 1990. The conference addressed solid waste management issues of national importance and worked to Increase awareness of these issues at Federal Register J Vol. 511, No. 1,96 / Wednesday October 9 1991 /Rules and Regulations 53931 local, State, and regional levels. The goal of the conference was to initiate Partnerships among peers in ' government, and involve groups and : individuals to encourage cooperation and innovation in our efforts to solve solid waste problems. Specific areas addressed at the conference included: _ (1) Integrated waste management, (2) source reduction and reuse, (3) recycling, (4) combustion, (5) land disposal, and (6) public education and involvement. A second national conference is planned for Jane of 1992. The Agency also established SWICH (Solid Waste Information Clearinghouse), a national clearinghouse for municipal solid waste management that contains over 7,00o documents. This system is an electronic bulletin board that allows users to view the listings of journals, reports, studies, etc., to search for topics and also contains information on how Warder publications. . Furthermore, the Agency will soon release a "how to" manual for setting up household hazardous waste collection programs. 2. Improving Integrated Waste Management Planning A major objective of EPA's "Agenda for Action" was to improve integrated waste management planning by States and local governments, EPA has made significant progress in achieving this objective. In April 1989, EPA, in ' cooperation with the National Conference of State Legislatures, held a workshop for. States on solid waste management planning, .In addition, through a grant to the Council of State -Governments, EPA sponsored a series of five workshops on planning for States In the fall of 1989. Finally, with the Conference of Mayors, EPA produced television video for The Learning Channel on integrated waste management. S. Increasing Source Reduction The highest priority to EPA's strategy for addressing the nation's solid waste Problems is increasing source reduction. EPA has taken several steps to promote the reduction of the quantity and toxicity of materials entering the municipal solid waste stream. First, EPA convened, through a grant to the Conservation Foundation, a steering committee of national source reduction experts to evaluate and develop recommendations on specific - opportunities for source reduction, methods for evaluating source reduction, and incentives for promoting source reduction. The results of this project were recently published in a report entitled, "Getting at the Source: Strategies'for Reducing Municipal Solid Waste" (Ref. 5). The Agency also completed a review and analysis of economic incentives, including volume. based pricing schemes, to promote increased source reduction. With regard to toxicity reduction, EPA completed a reportidentifying the sources of lead and cadmium in the waste stream (Ref, 6) and will soon issue a report identifying potential substitutes for these constituents in products. The Agency is currently ' examining mercury in the municipal waste stream. In March 199o, the Agency also completed a comprehensive report to Congress on methods for managing plastic wastes (Ref. 7). This report examined the full range of options for addressing plastic wastes, including source reduction, • 4. Increasing Recycling To increase recycling nationwide, EPA has undertaken a number of efforts to stimulate markets for secondary materials•, promote increased separation, collection, processing, and recycling of waste; and establish a National Recycling Institute. In the area of markets for secondary materials, EPA Produced a report examining disincentives to recycling and has conducted a series of market studies on various components of municipal solid waste (paper, glass, aluminum, tires, and compost). To improve Federal of the --s­y ....�a zocr procurement guidelines (retread tires, building insulation products, paper and paper Products containing recovered materials, and lubricating oils containing re -refined oil). in 1988 and 1989 and has begun examining future candidate materials (other building and construction materials) for additional Procurement guidelines. To promote increased, environmentally sound recycling of, waste, EPA has launched a training'. . Program to support recycling; This program is developing training and assistance programs for recycling at Federal offices and, through the assistance of the State of New Jersey, is developing training materials for training State and local recycling coordinators. EPA also released Publications on a number of topics (Le.," used oil recycling, yard waste composting, office paper recycling, and State and local recycling program - experiences) and funded development of several public service announcements on recycling. EPA also funded the establishment of a National Recycling Institute, composed of high-level - representatives from business and industry, to identify and resolve issues in recycling. ' - 5. Improving Municipal Waste Combustion In the past year, ETA took a major step forward in improving the design and management of municipal waste combustion facilities. In December 1989 the Agency proposed new air emission standards (54 FR 52209) for new and existing municipal waste combustors. The Agency published a final municipal waste combustion rule on February 11, 1991 (see 56 FR 5488) that included requirements for good combustion practices and air emission control of particulates, organics, NOx and acid gases. e. Improving Municipal Solid Waste . Landfilling. - Today's final rule represents the culmination of a major Agency effort to improve the safety of municipal solid waste landfills, EPA issued a comprebeneive proposal (summarized below) in 1988 (53 FR 33314), evaluated extensive comments, and is today promulgating the final rule. The Agency believes today's rule will significantly improve the safety of existing and future municipal solid waste landfills. While today's final rule is. comprehensive, it does not address Potential concerns regarding air emissions from municipal landfills. To address concerns, the Agency proposed air emission controls for municipal . landfills under the authority of section 111 of the Clean Air Act. (See 66 FR 24468; May 30, 1991.) E. Sup+mary ofProposed Rule As indicated above, the 1984 Hazardous and Solid Waste Amendments (HSWA) required EPA to revise the existing solid waste disposal criteria for facilities that may receive household hazardous'waste or hazardous waste from small quantity generators. The existing criteria were issued under section 4004(a) -of RCRA,- which specified that the criteria were to provide that a facility be classified as a sanitary landfill and not an open dump only if there is no reasonable probability of adverse affects on human health and the environment from disposal of solid waste at the facility. HSWA specified that the revised criteria shall be those necessaryto protect human health and the environment and may take into account the practicable capability of owners and operators of solid waste disposal facilities. In response to this mandate, In August 1988 EPA proposed revised criteria for 50982 Federal Re, ( Vol. 56, No. 195 / Wednesday, October 9, 1991 / Rules and MSWLFsand new Information t requirements for owners and operators i of industrial solid waste disposal facilities and demolition debris landfills. These are landfills that the Agency determined do or may receive household hazardous waste or hazardous waste from small quantity generators. The key provisions of the proposed revised Criteria for MSWLFs are summarized below. Today's rulemaking sets forth the final requirements for owners and operators of these facilities, including the flexibility provided to States seeking to tailor standards to meet State -specific conditions. EPA's 1963 proposal set forth new requirements pertaining to MSWLF location, design and operation, ground- water monitoring, corrective action, closure and post -closure care, and financial responsibility. The proposed location restrictions Identified six locations in which MSWLFs would be sub act to special siting restrictions and par orinance standards: proximity to airports, 100 -year floodplains, wetlands, fault areas, seismic Impact zones, and unstable areas. The design criteria proposed by EPA required owners and operators to design MSWLFs to. meet a performance standard based on a State -specified ground -water carcinogenic risk level. The proposed operating criteria specined day -today operating practices, like daily cover, for proper landfill maintenance. The Agency also proposed ground- water monitoring and corrective action requirements that established a ground- water monitoring system for detection of releases from landfills and corrective measures for remedying releases once they had been detected. The proposed closure and post -closure care criteria established final cover requirements and s closure performance standard and required a minimum of 30 years of post - closure care of the landfill. The proposed financial responsibility requirements specified that owners and operators must assure that funds would be available to meet closure, post - closure care, and corrective action needs. EPA received written comments on the proposal from more than $50 commenters. The commenters included more than 130 local governments, about 60 State agencies, and 15 Federal agencies. About 80 private sector firms and 27 trade or professional organizations supplied comments. Ten environmental and/or other public Interest groups and 33 private citizens commented on the proposal. in addition. EPA held four public hearings, in which commenters presented oral and written estimony. All comments were taken nto nonsideration in developing this final rule. Section III of the preamble, which m imediately follows, sets forth the statutory basis for the final rule, describes the broad regulatory options considered, and summarizes the regulatory impact analysis. Section IV responds to general issues raised by commenters on the proposal. Sections V and VI of today's preamble summarize the major provisions of parts 257 and 250, respectively. Section VII reviews the steps that owners and operators and States must undertake to implement today's rule, while Section VIII . describes£PA's plans for training on the final rule. The technical appendices provide more detailed discussion of the technical components of today's rule. Responses to comments that are not discussed in the preamble of today's rule are contained in the Comments Response Documents cited in Section X. M. Regulatory Approach of Today's Final Rule A. Statutory Basis Prior to evaluating the appropriate regulatory options for the subtitle D revised Criteria, it was necessary that the Agency determine the precedential effect of the RCRA subtitle C requirements for hazardous waste facilities. These regulations are found, for the most part, at 40 CFR part 265 (interim status facilities) and 40 CFR part204 (permitted facilities). The Agency received many comments critical of the proposed Criteria based upon the fact that the Criteria varied from those applicable to hazardous waste facilities under RCRA subtitle C. Several commenters based their comments upon technical information - contained in the docket to this rulemaking showing many similarities the health and environmental threats posed by MSWLFs and subtitle C landfills. Like the proposed Criteria, the revised Criteria promulgated today also differ from the subtitle C requirements. EPA believes that Congress did not intend for EPA to copy the subtitle C regulations for subtitle D facilities and, furthermore, gave the Agency the discretion, through its statutory mandate, to create a separate regulator: program. EPA agrees with commenters that data available to the Agency at this do not provide strong Support for distinguishing the health and environmental threats posed by ,MSWLFs and subtitle C facilities. Technical dam gathered by the Agenc and available in the docket to this rulemaking do not reveal significant differences in the number of toxic constituents and their concentrations in the leachates of the two categories of facilities. One study (Ref. 8) compared (1) leachates from MSWLFs that began operation before 1980 (the year EPA's regulations for hazardous waste landfills became effective) with leachates from MSWLFs that began operations after 1980 and (2) "post -1980" MSWLF leachates with hazardous waste landfill leachates. MSWLFs that began operation prior to 198o could contain industrial hazardous waste1hat, starting in 1980, could only be sent to a subtitle C facility. MSWLF9 that began operation after 1980 should only contain small quantity generator and household hazardous -wastes in addition to nonhazardous wastes. As commenters noted, the study did not find significant differences between . the number of toxic constituents and their concentrations between leachates . from past -1980 MSWLFs and leachates from pre -1980 MSWLFs and hazardous waste landfills. When comparing the mean concentrations of leachates. from hazardous waste facilities and MSWLFs, for example, the Agency concluded that there was a "weak indication" in the data that hazardous waste leachate had higher concentrations of hazardous constituents than past -1930 MSWLF leachate. It should also be noted, however, that these data are variable, and did not reflect long-term monitoring results. As a result, there is a significant possibility that they do not accurately reflect the actual toxicity of MSWLFs and subtitle C leachates at the present time. Furthermore, the Agency has many reasons to believe that the quality of the leachate from MSWLFs will improve in over time. Increasingly, communities are instituting household hazardous waste programs and removing toxics from waste prior to its disposal in a municipal landfill. In addition, the Agency expects there to be positive changes in leachate resulting from the 1986 lowering of the cut-off levels for small quantity generator waste and the addition of new RCRA hazardous waste listings and characteristics. The former would . reduce the amount of small quantity generator hazardous waste that may be disposed of in MSWLFs while the latter time would divert waste currently disposed of at subtitle D facilities to subtitle C facilities. Each of these measures should reduce both the number and the concentration of toxic constituents y ' present in landfill leachates. Thus. better data as well as future data should Federal Register J Vol. 50, No. 190 Provide a stronger technical basis for distinctions between the subtitle C and D regulatory programs, - In raising the similarity in leachatea between MSWLFs and hazardous waste facilities, commenters suggested that EPA is legally obligated to promulgate revised Criteria for MSWLFs under _ subtitle D that are similar to existing regulatory standards for subtitle C hazardous waste facilities. The basis for such a suggestion is that the Agency may not distinguish regulatory standards under subtitles C and D except on technical. grounds, The Agency disagrees with - commenters; that it Is legally obligated to issue revised Criteria for MSWLFs under subtitle D that are identical to subtitle C standards and believes that it has the discretion to create a different- regulatoryprogram,for MSWLFs. Because this discretion is based upon the statutory language and legislative history of the RCRA provision requiring EPA to promulgate the revised Criteria,. the current lack of technical information distinguishing the two universes of solid waste facilities does not affect the Agency's discretion to create two distinct regulatory programs. The statutory language and legislative history of RCRA subtitle D reveal that Congress mandated a different standard of health and environmental protection from that inandatedunder subtitle C and that Congress did not intend for EPA to impose the same standards under the two programs. Subtitle C management standards for hazardous waste treatment, storage, and disposal facilities shall be those "necessary to protect human health and the environment." (See, for example, section 3004(a,,) Section 4010(c) of the statute, the provision mandating promulgation of the revised Criteria, also contains this same language: Not later than March 31, 1989, the Administrator shall promulgate revisions of the criteria promulgated under paragraph (1) of section 4004(a) and under section 1008(a)(3) for facilities that may receive hazardous household wastes or hazardous wastes from small quantity generators under section 3001(d). The criteria shall be those necessary to protect human health and the environment and may take into consideration the practicable capabilities of such facilides (emphasis added). However, while stating that the revised Criteria must be those. "necessary to protect human health and the environment," subtitle D contains additional language not present in subtitle C, that allows the Agency to explicitly consider practicable capability In determining what is October 9, 1991 / Rule; and Regulations 50983 necessary to protect human health and the environment. The discretion is found both In the language of section 4010(c), which explicitlyRrovides that,EPA may consider the'.'practicab)e,capabfl)ty" of facilities in revising the eolid Waste - management criteria promulgatedunder section 40N(a), and in the language of section 4W4(a) itself. EPA believes that these provisions, among other Wings, explicitly authorizes EPA to consider cost In determining appropriate critt r a for subtitle Dfacilities. The legislative history bfseclion 4010(c), as'weil as, other statutory provisions further. support this interpretation. - Section 4004(a) provides thatEPA shall promulgate regulations confaining criteria distinguishing which facilities are to be classified as sanitary landfills and which as open dumps, This provisionincbrporates a distinctly - different standard of health and . environmental protection, which may be interpreted to allow consideration of cost. The section provides that, at a minimum: IL` • • a facility may be elassiBed as a landfill and not an open dump only If there Is no reasonable prnbabflity of adverse effects on health or the environment from disposal of solid waste at such facility (emphasis added). The statute suggests that the standard under section 4004(a) applies to the revised Criteria mandated under section 4010(c). Section 4010(c) explicitlg states that the Administrator is to "promulgate revisions of the criteria promulgat ti under paragraph (l.) of section 4004(a) and under section 1008(a)(3)" far subtitle D facilities that m4 receive hazardous wastes.' Thus, rather than simply directing the Agency to promulgate criteria for solid waste landfills receiving household hazardous and small quantity generator wastes, Congress directed the Agency to "revise" the existing Criteria - promulgated under section 4004(a) for these facilities. Furthermore, Congress indicates in section 4005 of the statute that the revised Criteria mandated by section 4010(c) are to be promulgated under section 4004(a). Section 4005(c)(1)(B) states: Not later than eighteen months aftecthe Promulgation of revised criteria under subsection 4004(a) (as required by section' 4010(c)), each State shall adopt and Implement a permit program or other system or prior approval and Conditions . `Section 101111 simply requires that the Administrator promulgate solid waste management intotmudun and guidelinas. Thus, the Agency believes that when promulgating revisions of criteria under the same statutory provision, it is reasonable for it to refer to the standards Imposed under that statutory .section in developing the revisions, ,The above statutory argument is supported by the legislative history of section 4010(c). In enacting section 4010(c), Congress seems to have been aware that the costs of the regulation may cause many facilities to close.As a consequence, the legislative history suggests that Congress authorized EPA . ._to develop regulations that would avoid massive closures among solid waste disposal facilities. Senator Randolph, )n his remarlia during floor debate, stated: (qhs requirements.could also orecioitate capacity, but that are either unable or. unwilling to accept new regulatory costs. By allowing the administrator to consider the practicable capability of solid waste disposal facilities, the Congress has expressed its desire to avert serious disruptions of the solid waste disposal Industry. 130 Cong. Rec. S 13814 (daily ed. Oct. 5, 1984). From these statements, it would appear that Congress -explicitly authorized EPA to consider costs under section 4010(e) as a criterion for determining if the financial Impact upon the owner or operator of an MSWLF could result in the "serious disruptions within the solid waste disposal Industry." While the legislative history of the Hazardous and Solid Waste Amendments of 19ael discusses the meaning of the term"practicable capability" under section 4010(c) and Indicates that it refers to coat considerations, the legislative history does not elaborate upon the meaning of section 4004(x) phrase, .,no reasonable probability of adverse effects." - However, case law provides support for interpreting this standard to allow EPA to consider cost, . Although it alone is not Interpreted to imply economic considerations, the term "reasonable," present in section 4004(x), has been read in other.contexts to imply a balancing of competing factors. (See e.g., American Textile Manufacturers Institute, Inc, V. Donavan, 452 U.S. 490 (1981); City of New York V. EPA, 543 F. Supp. 1084 (SM.N.Y. UK).) The legislative history indicates that Congress recognized cost versus health and environmental protection to be the. competing considerations in revising the subtitle D Criteria. (See eg.,130 Cong. Rec. S 13814 (daily ed. Oct. 5,1984)). Furthermore; use of the word "Probability" in "no reasonable 609134 Federal Register / Vol. 56, Re. 199 / Wednesday; October 9;.1991 / Rules''and Regulations probability" implies the discrellon to impose requirements that are less certain to eliminate a perceived health or environmental threat than standards that are "necessary to protect human health and the onvironment." thu@ allowing for the consideration of other factors such as cost. Based upon these considerations, EPA believes it has the explicit discretion to Interpret the phrase "practicable capabiltly" under section 4010(') to allow the .ansideratiart of the cost of the revised criteria to MSWLF owners and operators. The legislative history supports the above statutory reading that EPA may Impose different standards under RCRA subtitle D from those imposed under RCRA subtitle C. In the Senate Report to 5.757, Congress, in discussing EPA's mandate In revising the subtitle D criteria forMSWLFs, stated: (t)ho multiple liner -leachate collection system requirements of new section 3014(0 applicable to Subtitle C facilities are not to be automatically Incorporated in revised criteria for landfills or aurface impoundments which are Subtitle D facilities. Furthermore, Congress specified only the "minimums" of such's program, mandating that the revised criteria include requirements for ground -water monitoring, location standards. and corrective action. Asa conse47uen'ce, EPA has determined that it has the discretion to create a regulatory program for RCRA subtitle D MSWLFs that would allow for standards that are distinct from the RCRA subtitle C program for hazardous waste facilities, and thus EPA can allow for greater flexibility to State solid waste programs. - B. Regulatory options Considered and Summary of the Regulatory Impact Analysis The Agency considered a number of broad regulatory options for today's final rule and, In accordance with Executive Order 12291, prepared a Regulatory Impact Analysis (RLQ), December 1990, that evaluates the benefits and impacts of each of the regulatoryoptions. The RIA also contains an analysis of the economic impact on small communities, as re u-ued by the Regulatory Flexibility Rather than focusing on preventing environmental contamination in the first, instance, this option relies almost .. exclusively on detection and expensive.: clean-up programs to protect human health and the environment;Other than location restrictions, owners or operators of MSWLF8 would not be required to comply with any preventive measures such as proper landfill design., operation, and closure.' Under the "subtitle C" option, owners and operators of MSWLFs would be subject to a comprehensive set of facility requirements identical to those established for hazardous waste . disposal facilities under subtitle C of RCRA. The final "Hybrid" option,'which is the approach lakenin today's final rule, combines the limited option provisions witha range of preventive measures appropriate for MSWLFs and provides Slates seeking to accept the program with the flexibility to adopt the preventive measures most appropriate to their Stale. In particular, the Hybrid approach addresses all of the categories of control included in the subtitle C option, but is less stringent and, S. Rept. 08-248 at 50. Senator Stafford, Ae[ [RFAJ. Complete information on RIA therefore, more flexible in several In his remarks on the Senate floor, also methodology, data, assumptions, and respects, most notably in the landfill provided for the possibility of results is contained in the Final design and closure requirements. Thus, . differences between the subtitle D and C Regulatory Impact Analysis. Information while differing in content, both the standards. He stated: .. on the availability of the RIA is Hybrid and subtitle Captions include (phe underlying standard for facilities provided in the Supplementary requirements relating to facility location, subject to this amendment to subtfile D Information Section of today's preamble. design -operation, ground -water . ' remains protection of human health end the In addition to the RIA, in Spring 1991, , monitoring, corrective action, closure environment. Requirements Imposed on the Agency updated and revised the and post -closure care, end financial facilities may vary from lhoso for Subtitle.0 facilities, however, and still meet this Regulatory Impact Analysis to incorporate changes in state regulations assurance. " Finally. EPA investigated a fourth standard. as of January 1991 and to represent the approach, the categorical approach, 130 Cong. Rea al S 13814. Increased flexibility of today's rule, whereby landfill design standards Finally, two aspects of the nature of referred to as the Hybrid approach. would be categorized based on various Congress' regulation of MSWLFs These changes in assumptions, result in factors. particularly hydrogeology and containing household or small quantity a significant reduction in risk, cost and precipitation. During rale development. generator hazardous waste support a economic estimates for all options EPA and the State's attempted to Congressional intent to preserve considered. Results from this revised develop such an approach. The differences between the RCRA solid and analysis are presented below and are Agency approach was rejected by both Agency , hazardous waste programs. First, presented in the Addendum to the RIA, research end technical staff, and the and to Congress chose to regulate such August 1991. Information on the research al technically ft was technically it facilities by revising the subtitle D availability of the Addendum is infeasible to se categories the criteria rather than subjecting them to the subtitle C requirements. Second, provided above. The Agencyconsidered, in addition to wide variety of situations throughout the . gountry.'All attempts to'simplify the Congress' statutory directives in the HSWA amendments to revise the - the original proposal, four broad . regulatory options for today's fmalrule.. categories led to.pver or under.. subtitle D criteria lack the prescriptiveness of similar amendments These options included (1) the %imited :. , option approach" (2) the "subtitle C. r4d,atlon,Eaoh title eft suffered from a„ variety of fecbniealdefic(encieI s. to the subtitle C program. In place of Congress' imposition of land disposal approach" (3) the "Hybrid approach," and (4) the "Categorical approach:' -' Because the Agency rejected the. , categgriealapproacb, this approach will, restrictions and precise liner and leachate collection requirements in the Under the limited option approach, the revised Criteria would be limited to the not be discussed further in this preamble. Rather EPA's evaluation of . 1984 amendments, Congress merely told enumerated requirements identified by this option Is addressed in the detailed- ; backgroutid dlscusslon on the design EPA to revise the Criteria under section 4004(a) as necessary to profect human the 1984 Hazardous and Solid Waste 'Amendments—location restrictions, criteria_ presented In Append&,E-to_ health and the environment, laking into ' ground -water monitoring, and.corrective loday's,preamble. In additions the.: Regulatory Impact Analysis results for .. consideration practicable capability. action for ground -water contamination. Federal. Register / Vol. 56, No. 196 /'Wednesday, October 9, 1991 /Rules and Regulations . 50985 this approach are not presented in this section because they are very similar to - the Hybrid option. .. In evaluating these options, the Agency's primary criterion was meeting the statutory requirementof protection of human health and the environment. In addition, consistent with the. Agency's interpretation of the statutory basis for today's rule, EPA considered the practicable capability of owners and operators of MSWLFs, From the legislative history, as explained previously in this preamble, EPA determined that "practicable capability" includes both'the economic and technical capabilities of owners and operators, which, if exceeded, could result in significant disruptions in current solid waste disposal practices. Because the subtitle C Approach was significantly more expensive that than the hybrid approach (four times higher), EPA determined that it was beyond the bounds of "practicable capability." For this reason, while full discussion of the subtitle,C option is included in the RIA, it will not be included in the following discussion on costs and benefits. Additional information on the subtitle C approach can be found in the RIA. In evaluating and selecting the. regulatory approach fat today's rule, EPA attempted to strike the most appropriate balance between considerations of human health and environmental protection and practicable capability. EPA gathered and analyzed available informaion on the health and environmental benefits and the cost and economic impacts of the various options.' 1. Risk and Resource Damage Analysis The Agency first evaluated the human health and resource damage benefits of each of the options. Where possible, the Agency developed quantitative ' estimates of these benefits. For example, the Agency estimated the reduction in carcinogenic health risks achieved and resource damage avoided by the various options. EPA also carefully considered and qualitatively evaluated,other benefits that are difficult to quantify, such as the intrinsic value of clean ground water to future generations; non. quantified benefits are discussed in the next section. There are several limitations to the benefits analysis that should be recognized. Only benefits concerning ground -water contamination are considered=benefits from increased - .protection of surface water and air are not included. Benefits beyond 300 years are also not included—additional benefits would be captured if the modeling period extended beyond 300 years. Finally, potential changes in waste toxicity and demographics are not. completely factored into the analysis—a . reduction in toxicity of waste going to - MSWLFs would reduce the benefits of this rule, while Increases in populations living near MSWLFs would increase benefits. EPA found that both options, the Final Rule and the limited option would achieve roughly similar results for one ` benefit measure—reduction in human health risks from drinking contaminated ground water. As indicated in Table 1, both the Hybrid approach and the limited approach would eliminate 2 - cancer cases (40 percent reduction from baseline) occurring over 300'years from one set of 3,000 replacement landfills similarly located to those now operating in the U.S. - As EPA predicted, the baseline of 5.7 " cancer cases caused by one set of 3,000 replacement MSWLFs Is low. This low predicted cancer incidence is due to several reasons. Fust, more than half (54 percent) of the landfills have no population living within -a mile radius, and therefore, in this analysis, were assumed to present no human health risks. Second, EPA modeled human health risk by using the average population density near MSWLFs (i.e., 1.6 people per acre). Risk will increase If population living new landfills increases, as is very likely in the future. Third. EPA modeled risk using median leachate concentrations. If EPA had used the 90th percentile of leachate - concentration in this analysis, the .human health risk estimates would have increased by a factor of ten. Therefore, , while near-term human exposure to contaminated ground water is clearly a concern for a portion of MSWLFs, the larger benefit of the MSWLF rule is preventing ground -water contamination that could lead to human exposure in the future, and avoiding loss of ground- water resources. Fourth, EPA assumed over half of the new landfills will be designed with liners due to current state requirements. Risk reduced by state requirements is considered baseline reductions and is not included in this analysis. The inclusion of regionalization, state requirements and Increased flexibility of the rule are the major reasons the number of.cancer cases are reduced from those reported in the RIA. TABLE 1.—PREDICTED POPULATION RISK 1. ACROSS ONE SET OF, REPLACEMENT - MSWLFs a 30 -YEAR POST-CLCSURE CARE PERIOD Baseline......_..„_........... 02 "NA NYbdd Approach......._... .01 ..01 Umited Approach_•._, .01 - .of Population risk over the 3 • Nate that these numbers ad only tram 20, years of h poroma m mo annmezea cps numoers twmcn rep•_ resent landfilling in. perpetuity) presented later In this 9e• o t • Note esubie. - "sed b estimates are the Mtef cancer msec mused by one net of new landfills dwided er by300 years. EPA does not believe that those numbers are not comparable to the annuerae costa estimates presented later in this settlor. An alternative way to consider benefits is to look at long-term ' protection of both human health and the environment, Le., prevent resource damage. EPA measured a surrogate of this resource damage by estimating the gross cost of replacing contaminated ground water at drinking wells with an alternative water supply system. (EPA recognizes that this estimate, since it is "gross costs” maybe overstated; "net costs” would be somewhat lower.) Since this measure assumes that contaminated water is not used, but replaced (and therefore no human exposure occurs), this measure 1s not additive to the risk analysis presented earlier. It is simply a second method for measuring benefits. The.Agency determined that the hybrid option would provide more effective, long-term protection (prevent resource damage) than the limited approach. Specifically, as shown in Table 2, the Agency found that the Limited option - avoided less than half ($120 million) in gross resource damages than the final rule ($270 million). Total - Regulatory scenado cancer cases for ' one set of Reduction of cases ' replacemerd ' ' MSWLFs ' Regulatory scenario 5.7 •.NA ybddA„proa..w._-........:. lybrid Approach.-....„.... 3.3 2.4. hnited Approach.„„..._. , 3.3 2.4 Baseline......_..„_........... 02 "NA NYbdd Approach......._... .01 ..01 Umited Approach_•._, .01 - .of Population risk over the 3 • Nate that these numbers ad only tram 20, years of h poroma m mo annmezea cps numoers twmcn rep•_ resent landfilling in. perpetuity) presented later In this 9e• o t • Note esubie. - "sed b estimates are the Mtef cancer msec mused by one net of new landfills dwided er by300 years. EPA does not believe that those numbers are not comparable to the annuerae costa estimates presented later in this settlor. An alternative way to consider benefits is to look at long-term ' protection of both human health and the environment, Le., prevent resource damage. EPA measured a surrogate of this resource damage by estimating the gross cost of replacing contaminated ground water at drinking wells with an alternative water supply system. (EPA recognizes that this estimate, since it is "gross costs” maybe overstated; "net costs” would be somewhat lower.) Since this measure assumes that contaminated water is not used, but replaced (and therefore no human exposure occurs), this measure 1s not additive to the risk analysis presented earlier. It is simply a second method for measuring benefits. The.Agency determined that the hybrid option would provide more effective, long-term protection (prevent resource damage) than the limited approach. Specifically, as shown in Table 2, the Agency found that the Limited option - avoided less than half ($120 million) in gross resource damages than the final rule ($270 million). Average - ennual tante ' cases Reduction Regulatory scenario mused by of average one set of annual replacement cases landfills over 300 ' . years" . Baseline......_..„_........... 02 "NA NYbdd Approach......._... .01 ..01 Umited Approach_•._, .01 - .of Population risk over the 3 • Nate that these numbers ad only tram 20, years of h poroma m mo annmezea cps numoers twmcn rep•_ resent landfilling in. perpetuity) presented later In this 9e• o t • Note esubie. - "sed b estimates are the Mtef cancer msec mused by one net of new landfills dwided er by300 years. EPA does not believe that those numbers are not comparable to the annuerae costa estimates presented later in this settlor. An alternative way to consider benefits is to look at long-term ' protection of both human health and the environment, Le., prevent resource damage. EPA measured a surrogate of this resource damage by estimating the gross cost of replacing contaminated ground water at drinking wells with an alternative water supply system. (EPA recognizes that this estimate, since it is "gross costs” maybe overstated; "net costs” would be somewhat lower.) Since this measure assumes that contaminated water is not used, but replaced (and therefore no human exposure occurs), this measure 1s not additive to the risk analysis presented earlier. It is simply a second method for measuring benefits. The.Agency determined that the hybrid option would provide more effective, long-term protection (prevent resource damage) than the limited approach. Specifically, as shown in Table 2, the Agency found that the Limited option - avoided less than half ($120 million) in gross resource damages than the final rule ($270 million). 50988 Federal Register / VOL 56, No. 196 / Wednesday, October 9, 1991 J Rules ;and Regulations TABLE 2.—TOTAL RESOURCE DAMAGES FOR ONE SET OF REPLACEMENT LAND- FILLS r (Prosenl value In n0crs of dosarsl flesource Regulatory scan no RaVold d a� leg aso Ufa span for landfills. and thus reducing potential economic impacts on future generations (or the federal government, as in the case of a Superfund site). The Final rule, by more fully reflecting the coat of safe waste disposal, will also lead to more . responsible waste management practices and promote resource conservation. 5270 3. Costs and Economic impacts 12o 2. Other Benefits EPA believes there are several benefits to using the hybrid approach other than the risk and resource damage benefits which were quantified in the RIA. First, EPA believes that the promulgation of federal municipal solid waste landfill criteria will increase public confidence that landfills are designed to protect human health and the environment. EPA believes that this Increased confidence will reduce Opposition to landfills and make the ailing of new landfills less difficult Second, EPA'a modeling indicates that contamination of groundwater will occur at a large portion of landfills if no controls are used. While the resource damage measure presented earlier (the cost of replacing contaminated ground water for those who use it) helps quantify the lost use value of a groundwater resource, EPA believes It does not always reveal the total extent of ground -water contamination or the true lmpacis of that contamination. For lnslanco, ground -water contamination. has, in some communities, resulted in decreased property values. EPA believes that the final rule, by litiilting contamination of ground coater from landfills will protect property values located within the vicinity of new landfills. Also, there is a value that people place on pristine, (non - contaminated) resources, even if they do not intend to use these resources. This value Is called a "non-use value," or an "existence value." By limiting releases to the environment. EPAbelieves that the final rule will protect the existence valva of ground water near landfills. EPA has not qunn5 led these benefits for thin rule, but la investigating these benefits oCprotecting ground -water and vllI Inda an anelysIs of these benefits for the final Corrective Action rule to be promulgated under RCRA subtitle C. Finally, other benefits are expected from the final rule. These include minimizing the need for future cleanups The Agency evaluated costs by: (1) Using the subtitle D risk model to determine design requirements for landfills 'under the performance-based options and to determine which landfills would trigger corrective action and (2) using the subtitle D cost model to estimate cost Costs are estimated for a single set of landfills which in theory could be built at precisely the same types of locations as the 6,000 MSWLFs estimated to exist in EPA's 1986 survey. EPA has not estimated the social opportunity cost of premature closure of municipal solid ' waste landfills. Thus, to the extent that any of the alternative regulatory scenarios cause landfills to be closed prior to the expiration of their expected useful lifetimes, EPA's estimates do not take these coats into account. Likewise, EPA did not estimate any benefits resulting From premature closure of landfills. Compliance costs in the RIA are estimated for two scenarios: the upper - bound assumes e,40-yearpost-closure care period (PCC); the lower -bound assumes a 10 -year PCC period, increased recycling, shifts of waste to combustion,'and reglonalization of small landfills. However, the Agency believes that actual costs and economic impacts of the rule will fall somewhere between the upper and lower bounds presented In the RIA. For this reason, the Addendum results (which are discussed here) presents cost and Impacts for one scenario only: a ltdstestimate which assumes partial regionalization; shifts of waste to recycling and combustion, and a split between the use of a 10 meter and a 150 meter point of compliance. In addition, changes were made to the RIA - analysis to incorporate state credits (i.e., if a provision Is requited by state regulations, costs ere not assigned to the federal options) and better represent Increased flexibility in the final rule. The Agency's best estimate for total annualized cost of the Hybrid approach is $330 million (see Table 3).'These costs fall in the lower and of the range of estimated costs for the other regulatory scenarios. For example, the annualized costs for the subtitle C approach is estimated to be close to $1.3 billion while the costs for the limited option is S18o million. Meeting design standard and ground -water monitoring requirements are the major cost elements of both the Hybrid and subtitle C approaches. Corrective action and ground -water monitoring account for-thP majority of costs under the limited option. The total present value cost of one set of new landfills (Table 3), as opposed to annualized costs of landfilling in . perpetuity, is another way to present costs. The risk and resource damage estimates presented earlier are "total" estimates for one set of new landfills .and thus are parallel to the total present value cost estimates presented in Table 3, TABLE 3.—SUMMARY OF COMPLIANCE COSTS FOR OPTIONS BEST ESTIMATE I The average cost per ton is.a nallonal wetg event figure detemuned by dmding total national costs by total annual Ionadisposed. a The total present valve cost for one set of new landfills presents costs of the rule M a formal com- parable to the Oak and resource damage estimates Presented writer In the pprereamble. These costs do not Include Increased c wsion of waste due to combustion and recycling because the risk and re- source damagge estimates (Tables 1 a 2) do not lake Into accourd INS addiional diversion. The average annualized incremental cost per ton under the Hybrid approach is less than $2 per ton, compared to $7 per ton for the subtitle C approach and $lper ton for the Limited option (see Table 3), To put these figures in perspective, the current average cost for disposal of municipal solid waste is $46 per ton. Therefore, a $2 per ton increase for the Hybrid option represents a four percent increase over current baseline costs. The maximum and minimum cost per ton presented in Table 4 give an indication of the distribution of costs across landfills within each option. While all options have a minimum cost per ton of $L the maximum costs per ton vary. Total Present � °� Average s value s cost of nit Uzed (s In cost per one set miUians) ton landfills Is in billions) Hybdd approach......... E330 $2, $5.8 Subtitle C ...... .:.. t,sco 7 22.9 Limited 1 approach.-_- 180 1 2.7 I The average cost per ton is.a nallonal wetg event figure detemuned by dmding total national costs by total annual Ionadisposed. a The total present valve cost for one set of new landfills presents costs of the rule M a formal com- parable to the Oak and resource damage estimates Presented writer In the pprereamble. These costs do not Include Increased c wsion of waste due to combustion and recycling because the risk and re- source damagge estimates (Tables 1 a 2) do not lake Into accourd INS addiional diversion. The average annualized incremental cost per ton under the Hybrid approach is less than $2 per ton, compared to $7 per ton for the subtitle C approach and $lper ton for the Limited option (see Table 3), To put these figures in perspective, the current average cost for disposal of municipal solid waste is $46 per ton. Therefore, a $2 per ton increase for the Hybrid option represents a four percent increase over current baseline costs. The maximum and minimum cost per ton presented in Table 4 give an indication of the distribution of costs across landfills within each option. While all options have a minimum cost per ton of $L the maximum costs per ton vary. Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 /Rules and Regulations .50987 TABLE 4.—RANGE OF INCREMENTAL COST TABLE 5.—LANDFILL DESIGN OPTIONS; - TABLE 7. ,ADDITIONAL MEASURES of PER TON ACROSS OPTIONS AVERAGE INCREMENTAL COST PER TON COST PER HOUSEHOLD (CPH) PER YEAR Minimum Maximum cost' . costa Hybrid approach..._.._..... $1 $24 Subtitle C approach........ 1 92 Umhad approach ._......... 1 20 • The minimum cost represents casts at large landfills located In States that already have ground• water monitoring and design requirements. •The maximum costs for the Hybrid approach reflects design costs of small landfills that are IocaF ed In States that have few existing requirements; the maximum costs for the grnited approach reflect costs fa small landfills that Incur high corrective action costs The range of incremental costs shown in Table 4 can be attributed to three factors: the wide distribution of landfill sizes, the diversity of current State regulatory programs, and the differing degrees of flexibility available to States in administering the various regulatory approaches. Landfill size is a key factor in determining the cost per ton, with larger landfills benefitting significantly from economies of scale. Landfills located in States that have already - implemented comprehensive solid waste regulatory programs will face lower 'incremental costs than landfills in States that currently have few requirements. Finally, the flexibility available to States in the Hybrid approach gives approved States the ability to allow landfill owners and operators,to choose. the least-cost'design that meets the performance standard. Table 5 illustrates the Importance of landfill size and aperformance-based regulatory approach. Looking start upper -bound cost scenario (Le., 40 -year post -closure care period), the cost under the Subtitle C option would drop'from $73 per ton for a to TPD landfill to $14 per ton for a 1500 TPD landfill. This clearly�demonstrates the benefits of economies of scale and further supports the trend toward larger, regional landfills. Table 6 also highlights the benefits of a performance-based approach, such as the Hybrid option: A subtitle C design approach would impose a cost of $73 per ton on all 10 TPD landfills, whereas under a flexible performance standard approach, costs could vary from $47 to $16 per ton, depending on the design necessary to meet the performance standard. Thus, under a performance-based approach owners and operators have a significant opportunity to reduce cost's by ailing now landfills in good locations. [No state creda included] [40 -Year Post -Closure Care Period] Pedom mane based design options Landfill size Sul ptle Com- Syn• Un• P osits tltedc fined finer/ liner/ Yell. covers ceVer• covaf• 10 TPD.......... $731 $47'1 $37 1 $16 175 TPD ...._.. 26 17 12 3 1500 To ........ 14 9 e, 2 ' Composite liner plus synthetic liner, composite cover, double leachate collection system. • Composite Ilner synthetic cover, leachate copec- fion system, • Synthetic liner synthetic cover, no leachate col- lection system. Unlined, vegetative cover, no leachate collection system. The economic impact analysis looks at cost per household, cost as a percent of median household income, and cost as a percentage of community expenditures. As shown in Table 6, the average incremental cost per household of the Hybrid approach is $4 per year, This cost is higher than the limited approach ($2 per year). TABLE 6.—AVERAGE r COST PER HOUSEHOLD(CPH) PER YEAR - Percent of • Best Regulatory scenario estimate cast . seenarb Hybrid Approach-_-.......__-.- $4 Limited Approach _............. _..:._.____... 2 I Average cost by total total national The economic Impact results in Table 7 indicate that neither the Hybrid approach or the limited approach would exceed the moderate impact threshold ' for individual household (defined for this analysis as an incremental increase in household costs of greater than $100 per year, or roughly $8 per month). EPA determined that impacts indicated by incremental costs as a percentage of each community's medlar household income are similar to cost per household results, and thus cost as a percentage of median household income results we not presented here. Percent of . Regulatory scenario corm -m ni- Maximum lies with CPH CPH>5100 Hybrid Approach _........... 0.0 $62 Limited Approach ... ....... - . 0.0 52 • Maximum CPH determined by calculating CPH from landfill with highest cast per Ion. In addition to impacts on.individual households, a key measure the Agency used in estimating the economic impacts of the various regulatory options was the percentage of a community's total - budget that would need to be spent on solid waste disposal as a result of this - rule. EPA's available data indicate that the typical community now spends approximately 6.5 percent of its total budget on solid waste disposal (1982 Census of Governments). The Agency considered a doubling of these costs— i.e., increases of solid waste disposal' costs to more than 1.0 percent of a 'community's total budget—to be a significant economic impact that may " exceed thepracticablecapabilityof many of these communities. As Indicated in Table 8, EPA found significant differences in costs as a share of the total community budget for the various options. Under the Hybrid approach and limited option costs would exceed the 1 percent impact threshold for less than 2 percent of local governments (representing less than one percent of the U.S. population). . TABLE 8.—COST AS PERCENTAGE OF 7. EXPENDITURES (CPE) ' Percent of coinmuni- fies with Maximum Regulatory scenario CPbest1Y° CPE' (perconQ estimate cost I scenario 1.4 1.4 2.6 r Maximum CPE represents the CPE for communf ty with highest ratio of cast per community expendi hire, The results presented in Table S are significantly lower than results in the original RIA. The strong mitigation of impacts is a result of assumed increased regionalization, increased state - regulations, and flexibility in ground- water monitoring requirements. These changes in the analysis have resulted in the number of significantly impacted communities being greatly reduced from EIA estimates. 60988 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations EPA believes reglonalization will play such a major role in mitigating the long- term Impacts of all of the regulatory approaches for the following reasons. EPA's small community analysis indicates that the majority (90 percent) of impacted communities are small communities (i.e., fewer than 5,000 people). These small communities typically operate small landfills, which handle only a smell portion of the total municipal solid waste stream. As she In Table 9, small landfills (less than 17.5 TPD) represented 51 percent of the total number of landfills in 1980, yet handled only 2 percent of the total waste. In addition, these small landfills tend to be poorly located and designed, and operate at the high end of the cost per ton scale. As a result, small communities have a number of strong incentives to regionalize and, in fact, many of them have moved or are currently moving to regional facilities. This trend is evidenced by the drop in landfills over the past twenty years. While 1970 estimates of the U.S. landfill population neared 13,000, EPA estimates that In 51100, only approximately 3,000 MSWLFs were opera ling—and that the total number of landfills continues to decrease. Because of this strong trend toward regionalization, the Agency believes that the long term impacts of the regulatory options will decrease over lime. TABLE 9,1986 SIZE AND WASTE DIS- TRIBUTION OF MUNICIPAL SOLID WASTE LANDFILLS a Land01 ace (iP0) I PGM enta9e I ParcenotaCa 1a1nf f taint wwraa Waste� 51 2 17 4 13 9 7 11 5 16 a 19 a 40 may not add due to Mndn9 In addition to the mitigating affection of regionalization on small community Impacts, EPA has Included a small community exemption in today's final rule. This exemption applies to small landfills (less than an annual average of 20 TPD) in arid (receiving less than 25 Inches of rainfall a year) or remote areas which do not have any reasonable alternative for reglonalization, If there is no evidence of existing ground -water contamination The small community provision would allow these communities to be exempted from certain requirements of this rule, thereby reducing economic impacts on these communities. For more information on this exemption, see section IV.A of this preamble. 4. Selection of Today's Regulatory Approach The Agency believes the Hybrid option strikes the appropriate balance between protection of human health and the environment and consideration of practicable capability and, therefore, has selected this approach for today's final rule. As,discussed above, preventive approaches, such as the Hybrid approach, provide more effective, long- term protection of human health and the environment than the Limited Rule option. At the same time, the Hybrid option imposes lower costs than the subtitle C option. In developing this rule, EPA was very concerned about the potential impacts on small communities, Including small Indian Tribes and, therefore, carefully evaluated this issue. EPA's analysis showed that the majority of the communities that would be significantly impacted are small communities that manage relatively small MSWLFs. To reduce impacts on small communities, EPA has added a special exemption to today's final rule directed at small landfills serving communities, including Indian Tribes, that have barriers to regionalization. This provision exempts small landfills (those that dispose of less than 20 TPD of solid waste daily on the average) in certain settings from the high-cost requirements Int today's rule. This exemption is available to those small landfills in remote or arid locations that do not have evidence of ground -water contamination. EPA believes that these limited impacts on smell communities will be further reduced by two factors. First, as discussed above, many small communities are expected to reduce community landfill costs by taking advantage of larger economies of scale through participating in regionalized landfills. Second. the oerformance- provides the option for communities to avoid high control costs by siting new landfills In non -vulnerable locations. A performance-based approach provides communities with opportunities to dramatically reduce costs by siting new MSWLF9 in areas where the characteristics of the site indicate that a less costly design may be used. EPA believes that those small communities and Indian Tribes that cannot take advantage of better siting opportunities, regionalization or the exemption, should be subject to today's requirements to ensure protection of human health and the environment and .to avoid costly fuiure clean-up problems. C. Pollution Prevention Aspects of Final Rule Today's final rule establishes revised standards for MSWLFs that set in place a strong economic incentive for increased source reduction and recycling. Specifically, today's rule, by calling for communities, including public and private entities, to pay the true cost of safe landfilling, makes source reduction and recycling programs more competitive, .Specifically, today's fhud rule establishes this economic incentive by requiring a wide range of design and management practices aimed at preventing releases from municipal solid waste landfills, In addition, the location provisions of today's rule prevent or restrict the siting of landfills in areas that are especially vulnerable to contamination. For example, new landfills (including lateral expansions of existing landfills) are prohibited from locating in the 100 -year floodplain unless special features are incorporated into the facility design Further, today s rule requires new landfills to be equipped with a composite liner, or, in approved States, an alternative design that will prevent unacceptable releases from the landfill The operating criteria also contain a variety of landfill management requirements that are aimed at preventing potential environmental or public healthproblems. These provisions include restrictions on public access to the landfill, daily cover requirements to minimize disease vector and other problems, methane gas controls to prevent gas explosions, controls on runoff from the facility to prevent releases to surface and ground water resources, and restrictions on the landfilling of certain wastes, Including hazardous waste and liquid wastes, to minimize the toxicity and quantity of leachate that may threaten ground water. Finally, today's rule also incorporates preventive measures into the closure and long-term ogre of landfills. At closure, the owners or operators of all landfills must install a final cap designed to minimize leachate , generation and migration, and then maintain and monitor the site for 30 years following closure (unless an approved State sets an alternative time period),, _ , Federal Register / Vol. 56, No. IV. Major Issues In finalizing today's Wile. EPA had to address a number of major issues. The general issues—the application of . today's rule to small MSWLFs, the rule's regulatory structure, implementation of the revised Criteria, ground -water policy, and pollutant limits for sewage sludge—are discussed in this section of the preamble. The specific technical issues pertaining tofacility design criteria, ground -water monitoring requirements, financial responsibility requirements, the effective date of today's rule, and the application of this rule to closed facilities are discussed later in the technical appendices to the preamble. Moreover, as discussed above, the specific criteria for EPA approval of State programs will be established In a separate rule expected to be proposed in early 1992. - A. Small Landfills One of the most significant issues raised by commenters was the application of the revised Criteria to small landfills. This is an issue for two reasons. First, the estimated universe of approximately 8,000 MSWLFs subject to the revised Criteria includes a large number of small facilities, Data acquired by EPA through the 1986 survey of MSWLF owners and operators (Ref. 2) Indicate that about so percent (3,000) of MSWLFs nationwide handle 20 tons or less of municipal solid waste daily..A landfill that receives 20 tons of municipal solid waste per. day serves a community of approximately 10,0oo people. Second, as proposed, the revised Criteria would have imposed significant costs on these small MSWLFs and the small communities, including small Indian Tribes, they serve. The most significant costs are associated with the design requirements, ground -water monitoring, and corrective action.A unique'characteristic of small landfills is that they cannot benefit from the economies of scale available to larger' MSWLFs. The proposal treated all MSWLFs the same, regardless of size. EPA stated in . the proposal that size represents only -one factor in determining potential risk, and that other variables, such as design and operating controls, location and climate characteristics, and waste - streams, can be significant determinants of risk regardless of MSWLF size. The proposal did provide States some flexibility to address particular alte- specific conditions present at MSWLFs, including small facilities. In addition, the proposed 18 -month ruse effective date, combined with the five-year phase -fn for ground -water monitoring, provided time October 9, 1991 / Rules for owners or operators of small MSWLFs to comply with the revised Criteria or to make other arrangements forsolid waste management. The Agency requested public comment on whether there should be special consideration given to small landfills under the final revised Criteria, The Agency received extensive comments that directly addressed the issue of small MSWLFs. Many commenters were concerned that small communities, including small Indian Tribes, that own small landfills would face a shortage of professionals appropriately trained in landfill design, installation, and operation that would prevent or severely hamper timely Implementation of the revised Criteria, Additionally, commenters expressed' concern that small communities would have insufficient financial resources to upgrade their existing small landfills to comply with the revised Criteria. They feared that residents of small communities would resist an increase in landfill tipping fees to cover the additional management and compliance costs associated with fhe revised Criteria. Moreover, some commenters feared a resurgence in Illegal duraping if the Criteria resulted in the closure of the many small landfills now in operation. In addition to the economic constraints faced by small communities, commenters pointed out that significant obstacles to regionalization ofsolid waste management exist, particularly in remote areas of the country where communities tend to be small and separated by great distances. In certain portions of Alaska, for example, villages often are separated by miles of tundra. During a large part of the year surface transportation of municipal solid waste becomes virtually impossible due to winter weather conditions, so transporting waste to a distant regional facility is notpracticable. Commenters requested that these portions of Alaska not be. required to comply with today's requirements. Other commenters note that regionalization of solid waste management in rural areas of the West that are and and have few, widely dispersed small communities would be hampered by the need to transport waste overgreat distances. Moreover, due to the small amounts of annual precipitation in this region there is little generation of landfill leachate, and ground waters are great distances below the surface. Commenters argued that these communities. Including small . Indian Tribes, should be accorded special treatment Without such. treatment, they indicated that they would be forced to close thefrlandfills. 50989 The end result would be increased . littering and open dumping, including damping of trash in waterways. On the other hand, a number of commenters agreed with the proposal and urged that there be no exemptions granted to small MSWLFs. They argued that even small landfills can pose significant threats to human health and the environment. These commenters - believed that marginal, small MSWLFs should be closed in favor of more protective, modern facilities to promote the regionalization of solid waste. management. EPA agrees that regionalization of solid waste management in rural areas, employing larger, better located, - designed, and operated MSWLFs, is preferable to continued use of small, poorly planned facilities that may pose health and environmental threats to their communities. The Agency's original thinking with respect to small MSWIFs was that the move to greater regionalization, in order to benefit from the economies of scale, would be a secondary benefit of the revised Criteril. The Agency recognizes, however, that regionalization is not a feasible alternative for some small . communities and acknowledges the, Plight Of small MSWLFs in areas of the country where few solid waste - management alternatives exist. In addition; the Agency is sensitive to the hardship the revised Criteria would create for many of these small communities, including small Indian Tribes. The Regulatory Flexibility Analysis (RFA) performed for this rule indicates that some small communities will be impacted by the costs of complying with the revised Criteria. EPA defined the significant impact threshold to be compliance costs exceeding one percenlof a.community's total budget (which corresponds to a doubling of solid uAle disposal costs in the typical community). EPA estimated, under reasonable worst case conditions, that the ma)ority of the communities that would exceed this significant impact threshold would be small communities. To mitigate these impacts, EPA made a number of changes in today's rule that will beoeflt all small MSWLFs and addeda special exemption that will grant specific relief to certain small MSWIXs without practicable regional waste, management alternatives. As mentions previously In this preamble, this specfil exemption for small MSWLFs to the Impact of the rule. Less thinlwo percent of local - governments exceed the significant economic Impact threshold. 50990 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations As a general matter, some of the changes in today's tole that are applicable to all MSWLFs will benefit small landfills. For example, today's rule allows all MSWLF owners and operators time to comply with the more costly provisions of the revised Criteria by phasing in ground -water monitoring requirements over a five-year period beginning on the date of publication of today's rule. In additton, EPA is delaying the effective date of the financial assurance requirements until 30 months after publication of this rule, which should benefit small communities. Finally, today's rule provides that States with approved programs may shorten the MSWLF post -closure care period an a case-by-case basis. EPA believes that all these measures benefit small MSWLFs. More specifically directed to small MSWLFe, EPA granted relief in today's rule to certain small MSWLFa where compliance with the revised Criteria is beyond the practicable capability of their communities and circumstances make regional waste management impracticable. Today's rule exempts owners or operators of certain small landfills from certain portions of the criteria, Including the design, ground- water monitoring, and corrective action requirements of the revised Criteria. To qualify for this exemption, the landfill must meet the following criteria: (1) The landfill receives less than 20 tons per day of solid waste on an annual average, (2) there is no evidence of existing ground -water contamination from the landfill, and (3) one of the following conditions exists: (A) The landfill serves a community that experiences an annual interruption of at least three consecutive months of surface transportation, which prevents access to a regional waste management facility, or (B) the landfill serves a cammunity for which there is no practicable waste management. alternative and the landfill is located in an area that annually receives 25 inches or less of precipitation. These terms and conditions are defined below. Today's rule defines what the Agency considers to be a "small municipal solid waste landfill' for the purposes of the small landfill exemptlon. Numerous commenters, suggested possible definitions for small MSWLFs, including those MSWLFs that receive less than 500-1,000 tons or municipal solid waste annually, or serve a population of between IRM and 20,000 persons. The Agency evaluated these wide range of comments and selected a cutoff of 10,000 persons which corresponds to a landfill size of 20 tons per day. This cut-off falls within the range suggested by commenters and captures the small communities that will be most severely impacted by the final rule, The Agency has tried to strike a balance between granting relief to the appropriate small communities versus exempting all small landfills. The Agency evaluated its existing data base to find that over 50 percent of existing landfills dispose of less than 20 TPD. These 50 percent of the landfills, however, only dispose of 2 to 3 percent of the total waste disposed. Therefore, only a small amount of the total waste disposed is affected by the exemption. For the above reasons, the Agency determined that landfills serving communities [including Indian Tribes) of fewer than 10,000 best defined a "small" MSWLF for the purpose of granting . relief from the most costly requirements in the revised Criteria. In order to facilitate implementation, today's rule defines "small MSWLFs" in terms of the amount of the waste received at the landfill rather than the population served by the landfill. Because papulation and waste generation patterns will vary over time, EPA believes a definition based on quantity of waste received at the landfill will be more direct and easier to implement The amount of waste disposed at a MSWLF is either readily available or can be easily estimated. Therefore, the Agency chose a cut-off of 20 tone per day on an annual average, which corresponds to the waste generation of a community of 10,000. Specifically, this figure was derived by multiplying the average amount of solid waste generated daily per person in the community size (10,000). The 4.0 lbs. per person figure is contained in the EPA Report "Characterization of Municipal Solid Waste in the United States: 1990 Update" (Ref. 9). In setting the 20 ton per day limit, the Agency specifically included the phrase "on an annual average" to address situations in which small landfills operate only certain days of the week. in such situations, a small landfill serving a population of fewer than 10,000 may receive more than 20 tons of municipal solid waste per day provided the average amount received by the landfill does not exceed 20 tons/ day over a one-year period. Therefore, § 256.1(f) of today's rule defines "small municipal solid waste landfill" as a landfill at which 20 tons or less of municipal solid waste is disposed of daily on an annual average. A landfill that falls within this definition Is eligible for the exemption from complying with the design criteria and ground -water and corrective action requirements of " today's rule, if there is no evidence of existing ground -water contamination from the landfill and If the community It serves is not practicably capable of regionalizing because of one or two specific conditions described below. EPA decided to limit the exemption in today's rule to small landfills so long as there Is no evidence of ground -water contamination from the facility because the Agency sees no justification for providing relief to landfills that are contaminating ground water. Such contamination may be indicated by contamination of neighboring drinking water wells or other means. In the -Agency's view, owners and operators of these landfills should be responsible for taking appropriate corrective action if contamination is present. Therefore, the exemption for small landfills in today's rule is not available to existing landfills for which there is evidence of existing ground -water contamination. Furthermore, today's rule requires that if contamination is discovered at some future date, the owner or operator must notify the State Director and, thereafter„ comply with the design, ground -water monitoring, and corrective action provisions in today's rule. As previously mentioned, today's rule sets forth two situations in which a small MSWLF may qualify for an exemption. The first situation is one in which the MSWLF serves a community that experiences an annual interruption of three consecutive months.of Surface transportation that prevents access to a regional facility. This provision was developed based on data submitted by commenters from Alaska, where access to some rural villages is restricted by extreme winter climatic conditions. Typically, surface transportation to and from these villages is impossible three months out of the year due to snow and lee accumulation. Consequently, solid waste may only be transported short distances, for all practical purposes prohibiting the use of regional facilities. The second situation inetudea MSWLFs that serve communities for which there are no practicable waste management alternatives and are located in areas that annually receive 25 inches or less of precipitation. Long distances between communities are particularly common in the West and often put the regionalization of waste management beyond the practicable capability of small communities, while and conditions reduce the likelihood of ground -water contamination. As used in this second situation, EPA considers the term "practicable waste management alternative" to mean another landfill, transfer station, 50992 , Federal_Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and'Regulations restrictions, the disease vector and explosive gas controls,recordkeeping, and closure and past -closure planning requirements." (53 FR 33382.), - In response to the two-stage effective date proposal, the Agency received - many comments on the Implementation of the regulations, especially commenters'views of the. capali Iles of State authorities to undertake the responsibilities required by EPA's proposed implementation approach. - EPA received numerous. comments from States as well as owners an$ operators of MSWLFs stating that 18 months was not a sufficient period of time for States to obtain the necessary statutory and regulatory authorities necessary to implement the rule as proposed. According to these commenters, ilia consequence of the 18 -month effective date would be widespread - noncompiiance with the revised Criteria and a backlog of permits and closure and correctiveaction plans awaiting State approval. ' For instance, citing the insufficiency of the 18 -month time period, one Industry commenter stated that -."once the 'effective date'kicki in', States will be confronted with not only Issuing new permits for new facilities but also revisiting permits'forfacilities thatwilt continue to operate." and added,' "obviously, States will not be able to issue new or revised permits all at once and will have to set priorities" To address this problem, this connnenter suggested a way in which to Increase the self -implementing nature of the rule, the approach used by the Agency in many of the proposed "criteria, through development of largely self implemented clasripermits. Several State agency commenters echoed this concent with the burden placed upon State agencies under the revised Criteria's proposed ' implementation approach. One State agency commented: "It is unreasonable to expect the Slates to have the framework in place to approve the gas detection system design and monitoring plans, evaluate and approve the closure plans, and approve the mechanisms chosen for financial assurance within eighteen months of the final rule." Other States commented that the resources end expertise necessary to implement the revised criteria'far exceeded those Presently available to the State agencies that would be responsible for . implementing the revised criteria under the proposed rule. : EPA had proposed a uniform. effective date (except for ground water.. monitoring) of 18 months. The Agency received numerous comments from the. public which argued that this 18 month • effective date did not provide sufficient time for either owners or operators of— MSWLFs to comply with•the rule or for states to: adopt and implement permit programs to ensure that owners or - operators do comply with the rule provisions. BPA still believes that a uniform effective dale, except for ground -water monitoring and financial responsibility requirements, is an important aspect of the rule's implementation. However, after closely evaluating the comments received which questioned the wisdom of imposing an 18 month effective date -for molt provisions of the rule, EPA has -decided to extend the effective date by six additional months. As a result, other than for ground -water monitoring and financial assurance requirements, all provisions of the rule will become effective 24 months after the rule is published in the Federal Register. The Agency is adopting a 24 months effective date instead of the 18 month period contained is the proposed rule for two reasons. First, owners and operators and other commenters stated that the 18 month period did not provide sufficient time for facilities to have sufficient capital and resources to comply with the rule requirements. To deal with these concerns, commenters suggested that the rule become effective . in anywhere from 24 to 48 months from the date of publication. EPA has decided to provide an additional six months before the rule becomes effective to - assure that owners and operators have sufficient time to comply with the extensive requirements contained in the finial rule. As explained elsewhere, EPA has also decided that the ground -water .monitoring requirements will be phased in over a five year period and that the financial responsibility requirements' will become effective in 3o months. Secondly, while RCRA section 4005(c) requires states to adopt and implement a permit program or other system of prior approval within 18 months after the revised landfill criteria are promulgated, EPA recognizes that even if states are able to meet that statutory deadline the Agency will still need time to evaluate and make a determination as to the adequacy of the state permit Program in accordance with RCRA section 4005(c)(1)(C). Obtaining EPA's approval of a state permit program is an important element in the implementation of the revised Criteria because many of the rule's provisions are tied to whether a state has a permit program which'has been approved by the Agency. Six additional months will provide EPA ' with time that may be necessary to review the adequacy of state permit programs: EPA also. believes that It would be unreasohable'to require ovine rs and- operators.of MSWUs to cornply with newly revised State piogiams by the same date that the States musthave . adopted and implemented such; programs (i.e., 18 months). By.eXtending: the effective date of the revised Criteria by an additional six months, EPA believes that owners and operators will have adequate time to comply with these new State programs. At the same time, however, the ' Agency believes it necessary; based upon the significant comments addressing the issue, to provide for e means by which implementation of revised, more; protective Criteria can occur within 24 months of today's date.. As a result of the numerous comments . from both States and owners and operatoesdetailing the lack of State resources for solid waste management programs and the need for more time to implement or revise State permitting .. programs, the Agency determined that a plan that relied solely on State oversight or interaction with the State could not assure the implementation of the revised Criteria by the rule's effective date: The Agency also realized that without State oversight, the regulations as proposed could not be effectively implemented, because they relied upon a standard that must be developed by the State (e.g., the design standard). In summary, were the revised Criteria promulgated as proposed EPA determined that the public would not be adequately assured of the implementation of the revised Criteria and the concomitant increases in health and eavironmental protection in States without approved programs. In response to the above concerns, the Agency has developed a final rule that provides for effective implementation not only in approved States, where State oversight will be present, but also in States without approved programs. For approved States, today's rule is based on performance standards that allow States to consider local conditions in setting appropriate controls for ' municipal landfills. This performance standard approach preserves the traditional State role in defining appropriate standards to the greatest extent possible, while having a protective national standard. Performance standards have been incorporated throughout today's rule. For example, the design criteria in Section 258.40 provides that approved States may approve -landfill designs that will ensure that the maximum ' containinant levels will be met'at the relevant point of compliance in ground water. Under this approach, approved Federal Register / Vol 58, No. 196 / Wednesday, .October 9, 1991 / Rules and Regulations SD991 materials or resource recovery facility that may serve as a reasonable substitute for the MSWLF currently employed for disposal. EPA encourages ownersf operators to employ their knowledge of the universe of solid waste management options currently and potentially available when evaluating the merits of available Practicable alternatives. Owners/ operators may also want to consider the economic implications of long haul distances. As an example, owners/ operators might want to consider how much a community must increase its percentage of total budget spent on solid waste disposal to cover costs for waste hauling to a regional facility, The Agency believes that the determination of whathaul distances wouldbe considered unreasonable for a community must be made .considering local or regional geographical and Climatic constraints. For this second situation, EPA set the 25 -inch cap on annual precipitation to ensure that the exemption would be available only to small MSWLFa where the risk ofgmund-water contamination is reduced because of lessened leachate generation and slower contaminant migration. In selecting a precipitation cut-off, EPA considered comments on the proposal, which used 40 inches of precipitation as the cut-off for the categorical approach to the design criteria. All commenters suggested that the Agency use a precipitation cut-off less than 40 inches of rainfall per year. EPA considered precipitation cut-off values greater than 25 inches per year, but rejected them because EPA believes that the risk of ground -water contamination is too great in these . areas. The Agency decided on 25 inches, which represents the lower range of commenters' suggestions and offers a conservative number for determining the availability of the exemption. in addition, this number is generally supported by landfill case studies derived from State data. These data indicate that little leachate is generated In areas where the precipitation does not exceed 25 inches annually, which suggests that precipitation is an indicator of the potential of a landfill to contaminate ground water. Today's small MSWLF exemption applies to new as well as existing small b1SWLFs. Because logistical barriers to regionalization will not likely change over time for many communities, EPA believes that small communities will have as much difficulty meeting the compliance costs for their new MSWLFs as for their existing facilities. However, the Agency. considered allowing waivers for new MSWIXs for only a limited period of time (eg., five years), but rejectedthis option for two reasons. First, Alaskan villages likely will always have seasonal interruptions of surface transportation. Second, many western communities and Indian Tribes will continue to be geographically isolated and continue to face long haul distances to regional facilities. The Agency does recognize that in some instances the practicability of regionalization will change over time, Improving as rural areas develop and gain financial resources. The small community exemption in today's rule exempta qualifying small MSWLFs from the design, ground -water monitoring, and corrective action requirements of today's rule. The RIA for this rule identified these requirements as the biggest cost items of the final rule for small MSWLFs. Small MSWLFs will still have to comply with the location standards, the operating criteria, closure and post -closure care requirements (excluding ground -water monitoring), and the financial assurance requirements appropriate to these activities. The Agency believes that even small MSWLFs should be subject to these criteria because they are less expensive {relative to other requirements in today's rule) procedures that protect human health and The environment. EPA believes that exempting small landfills from the ground -water monitoring and corrective action requirements of today's rule comports with the statute (i.e., section 4010 (c)) and the Congressional intent for a number of reasons. First, to address Congressional concern for ground -water contamination, EPA has narfowly drawn the exemption such that only those small 1vISWLFs for which there is no evidence of ground -water contamination are eligible for the exemption (in addition to one of the other two criteria). -Second, as stated above, the exemption is a conditional one such that the ownerloperatoris no longer eligible for the exemption when there is evidence of ground -water contamination associated with the facility. As such, the facility cannot escape corrective action for known releases. Third, the 25 -inch cap on annual precipitation contained in the second criterion ensures that this exemption will be limited to those small MSWLFs where the risk of ground -water contamination is considerably reduced. Finally, both the surface transportation difficulties and the "no practicable waste management alternatives" criteria for obtaining an exemption reflect the "practicable capabilities" evaluation that the statutory language of section 4010(c) and the legislative history Indicate Congress intended EPA to conduct when revising the criteria under section4004(a). Small communities, including Indian Tribes, whose small landfills do not qualify For a waiver under today's rule should consider regionalization to mitigate costs. Due to economies of scale, small landfills operate at higher cost per ton than larger, regional facilities. B. Regulatory Structure Under the regulatory structure of the proposed rule, approval by or Interaction with the Slate regulatory agency by the owner or operator was necessary for implementation of many requirements of the revised Criteria. For example, the proposed design criteria required the owner or operator to design the,MSWLF to meet a design goal established by the State. Also, the , closure criteria required the owner or operator to close the MSWLF In accordance with a closure plan approved by the State. Although these provisions dldnotpropose an alternative implementation scheme where a State was unable or unwilling to perform the necessary approvals or establish particular standards such an the design goal, the Agency anticipated the limitations of an implementation approach algnificantly reliant upon Slate Implementation. Under section X.D.1. of the proposed rule preamble, the Agency specifically requested comments on "What is an appropriate and practical EPA role if the States do not adopt and implement the revised Criteria?" (53 FR 33383.) The proposed rule did suggest an alternative implementation scheme for certain of the revised criteria. Many of the proposed standards were "self - implementing," In that they could be Implemented directly by an owner or operator without the supervision or intervention of a State regulatory authority. The self -implementing provisions of the proposed rule were discussed in section X.A.2. of the proposal preamble in the context of a discussion of a suggested two -singe approach to effective dales whereby "self -implementing" aspects of the regulations would become effective in a to 12 months and those regulations requiring the participation of a State authority would become effective In 18 months. There the Agency listed the self -implementing provisions of the rule to include the "general operating criteria such as theliquids management 5099 Federel_Reglster'/ Vol. 58, No. 1813 / Wednesday, October 9, 19911 RuI6 end Regulations to disapprove the petition because T insufficieni infotmadon was provided. - Thus, as promulgated, every standard I-,, today's rule may be implemented by the owner or operator without Slate oversight or participation where i State Program has not been developed. A self - implementing approach has also been incorporated into the revised Criteria for the wetlands and unstable area location restrictions, the dally cover - requirements, explosive gas control - requirements, the groundwater monitoring and corrective action Provisions, the closure and post closure - care requirements, and the financial assurance provisions. EPA is promulgating self. Implementing standards because there may be States which do not act to adopt end implement an adequate program within 24 months, In most States, EPA does not expect this will be a problem. Moreover, to facilitate the expeditious Preparation and approval of State programs, the Agency as noted above, will shortly propose -a regulation detailing the required elements of an approvable State program. The next section of today's preamble describes the effort. Despite the promulgation of self - implementing standards in today's rulemaking, EPA continues to believe that requirements,such. as those pertaining to landfill design, ground. water monitoring, corrective action, and closure should optimally be implemented under the oversight of a State implementing agency, Today's rule does not represent a shift away from the longstanding Agency policy of requiring regulatory oversight of such important procedures. Rather, the inclusion of self - implementing standardsin today's rule is a recognition -that, due to resource limitations; Stales may not have adequate programs in place by the effective date of the revised Criteria. This scheme will insure that in States .. that do not act to establish adequate programs, human health and the . environment will be protected and the Federal requirements will be enforceable. EPA recognizes that self -implemented standards possess certain drawbacks. First, self -implemented standards, such as corrective action plans, may be lacking in certain detail because they lack the input of a qualified and trained State regulatory'off7ciaL.Second, without qualified. State oversight, owners and operators intent upon circumventing the regulations may' find it easier to do so. EPA has attempted to mitigate these drawbacks as much as possible in today's self -implementing standards. The final rule establishes, where possible, specificself-implementing requirements that are easy for the owner and operator to Interpret and citizens to enforce through citizen suits. (For example, the covermaterial requirements of § 258.21 specify that landfills must be covered with at least six inches of earthen materials at the end of each operating day, or more frequent intervals if necessary to control disease vectors, fires, odors; blowing litter, and scavenging). This approach, however, was not possible for certain provisions, such as the nuiaber, spacing, and location of ground -water wells, where it was Impossible for the Agency to set uniform standards because the appropriate approval was highly dependent on site-specific conditions. In these instances, the Agency hes established performance criteria that the owner or operator must meet and, in many cases, requires that the owner or operator obtain third party certifications that document the decisions made or action taken to comply with the performance criteria; This certification must be placed in the operating record and made available to the State upon request. The Agency believes that to the extent many of the functions performed by the State under the proposed rule were essentially technical in nature, they may be performed by a third'party who is not necessarily employed by or an agent of the State agency. EPA believes that such third -party oversight mitigates the danger of owners or . operators abusing the self -implementing system. Finally, today's final rule required the owner or operator to provide an opportunity for public review of potential corrective action remedies and to notify the State of the selected remedy. C. Implementation and Enforcement Another major issue EPA considered in today's rulemaking was the actual implementation and enforcement of the revised Criteria. This Involves the procedures by which EPA will determine the adequacy of State programs for implementation of the Criteria, public participation in these programs, and enforcement considerations. 1. Procedures for State Program. Approval ' As noted above, section 4005(c) of RCRA requires that each State adopt and implement, not later than 18 months after promulgation of the revised Criteria, "a permit program or other system of prior approval and conditions',' (Stale permit program) adequate to assure that each facility that may receive i1HW or SQG waste will comply with the revised Criteria. Under section 4005(c) the primary responsibility for implementing and enforcing the revised Criteria rests with the States. EPA is required to "determine whether each State has developed an adequate program" pursuant to section 4005(c). EPA's approach to State program approval recognizes the traditional State role in implementing landfill standards and protecting groundwater. EPA fully intends that States will maintain the. lead role in implementing this program. EPA's goal is for all States to apply for and receive approval of their programs. Under this rule States will have the flexibility to tailor standards to meet their state -specific conditions. The rules standard requires that an approved State's design be capable of protecting ground water at the specified point of compliance, In selecting a design to meet this performance standard; an approved State may adopt its own performance standard, it may use the rde's specific liner design, or it may use any design it determines would be capable of preventing contamination of, ground water beyond the drinking water standards. In short, whenever a State develops a program to deal with local conditions, the Federal liner design alternative would have only the legal 'status of "guidance" and would not be mandatory. EPA will not require states to obtain a "waiver" of the liner requirement to obtain program approval. EPA's State program approval rule will also set forth the Agency's proposed approach for Implementing the revised Criteria on Indian lands. EPA plans to propose that Indian Tribes be eligible for permit program approval. The full discussion of this issue and rationale for EPA's proposed approach will be included in EPA's proposed Stale program approval rule, 2. Public Participation The proposal did not specifically require States to afford interested citizens the opportunity for a public hearing with respect to most of the elements of today's rule (Consideration of public concerns was proposed and retained In today's final rule, however, in the context of corrective action remedy selection.) Several commenters criticized the proposal because It lacked public participation requirements for MSWLF permitting and closure plan approval; they suggested that the Agency require States to provide for public participation in the implementation of today's role. The Agency believes that public Federal Register/ VOL. 50, N0.,196,/ Wednesday, October 9, 1991 / Rules and Regulations 50993 Slates may consider a wide range of site-specific factors in determining the appropriate design that meets the performance standard. At sites where ground water is vulnerable due to the. hydrogeologic conditions present, a Slate may require a composite liner system, similar to that required in today's rule for, landfills located in States without approved programs. On the other hand, in areas where the ground water Is less vulnerable (e.g., in and areas), the State will likely detemdne, that a less comprehensive design is fully protective of ground water. In fact, under certain climatic and hydrogeologic conditions, liner systems may not be needed because the - hydrogeology at the site may provide . adequate protection of ground water. The rule's standard requires that an approved State's program be capable of protecting ground water that is currently used or reasonably expected to,be used for drinking water at the relevant point of compliance. In determining the appropriate mix of prevention and . remediation strategies to incoiporate into their programs, States are expected to consider the use, value,and vulnerability of potentially affected ground -water resources, as well as the social and economic values of these resources, ensuring that the environmental and public health benefits of each dollar anent are . maximized. For landfills located where ground water is currently used or reasonably expected to, be used for drinking water, the performance standard requires States to prevent contamination from exceeding drinking water standards. In selecting a program to meet flits rule's performance standard, an approved State may use the rule's specific comprehensive design; or it may use any program it determines would be capable of meeting the performance standard. In short, whenever a State develops a program to deal with local conditions, the Federal comprehensive design alternative would have only the legal status of "guidance" and would not be mandatory. EPA will not require States to obtain a "waiver" of the comprehensive design requirement to obtain program approval. States are provided substantial _ flexibility to, consider local site-specific 'conditions In determining how to address variable ground -water quality or location. For example, if ground water is located several hundred feet below a laridIlU, or the aquifer is separated from the landfill by •a substantial impermeable layer, the, State may determine that the comprehensive liner design is not necessary to meet the performance standard. The specific criteria by which State programs will be approved will be published in a separate rule (the "Slate Implementation Rule"), That rule will set forth specific - conditions where State flexibility is appropriate. As provided in section 4005(c)(1)(B), within 18 months of the promulgation of this rule, States must adopt and implement a permit program or other system of prior approval and conditions that complies with the performance standard announced today, As discussed above, states need not adopt the EPA comprehensive design alternative, but may choose any design or mix of designs that will secure compliance with the rule's performance standard. In addition, under section 4005(c)(1)(C), EPA must determine whether each State has developed an adequate program to meet the performance standard. As noted above, in making this determination, EPA will rely upon the specific criteria to be published in the State Implementation Rule. In order to ensure that States have the necessary guidance to prepare their submissions for EPA review, the Agency will not require these submissions until 12 months following the promulgation of the Stale Implementation Rule. Any 'State submission received before the expiration of this 12 -month period will be reviewed pursuant to EFA's authority under section 4005(c)(1)(C), but will not be subject to section 4007(a). This 12 - month provision will be included in EPA's proposed State Implementation Rule. The Agency believes that some States may want to seek early EPA determination that their State programs comply with the performance standard announced today. For example, some States have chosen to adopt strict design standards similar to EPA's comprehensive design. EPA fully expects that these State programs will comply with today's performance standard Irrespective of the specific criteria to be developed in the Stale Implementation Rule. Under these circumstances, EPA expects to make early determinations of State compliance in order to expedite Stale programs for which favorable EPA determinations appear to be a mere formality: These early determinations, however, should not be interpreted as implicit guidelines, presumptions, or any other' indication of the specific criteria that EPA will use to evaluate State programs. Nor will ETA. in developing the State Implementation Rule, rely upon the standards of the Stale programs represented in these early determinations. States that have chosen to adopt and implement programs that go beyond the requirements of Section 4005(c)(1)(13) are likely to be candidalea for early determinations, and do not necessarily provide an appropriate guide to the process that EPA will ultimately use for making compliance determinations under section 4005(c)(1)(C)• Unless and until EPA determines that a State program is not adequate to secure compliance with the performance standard announced today, the State will retain responsibility for administering this Subtitle of the Act. Today's rule also establishes proyisions that ensure effective and protective implementation of ibis rule In States without approved programs where State oversight will not be present. To address these situations, the Agency has amended each standard under the revised Criteria that required State Interaction under the proposed rule to make that standard self - implementing. For example, the design standard (§ 258.40) contains in addition' to the performance standard described • above for approved States, a self - implementing requirement for landfill design in States without approved programs. This requirement spoctflas In these cases landfills must be designed With a composite liner meeting certain minimum specifications. However, § 258.40(e)pprovides a backstop mechanism which will enable, under certain conditions, owners or operators to employ designs less stringent than EPA's comprehensive design in the unlikely event that the upcoming State Implementation Rule has not been promulgated on schedule. First, the owner or operator of such a facility would need to obtain concurrence from the State that the specific design meets the general performance standard set forth in § 258.40(a)(1). The State would then petition EPA to review its determination. EPA has 30 days to approve or disapprove the State's petition. Unless EPA determined within 3o days of such a petition that the Slate's determination was Inadequate, the alternative design would be doomed to comply with the general performance standard. States are encouraged to work closely with the Regional Offices prior to formal submittal of petitions. This will allow the Agency to identify all information needs and to work with the State to resolve any difficult technical issues. This will also serve to avoid situations where the Agency would have Federal Register / VOL 96, No. 196 / participation is an important element in the permitting of MSWLFs because it affords the permit writer the opportunity to solicit and consider the views of the public when writing permits. Therefore, the Agency intends to propose public participation requirements for permitting decisions in the State program approval rule. Public participation in the State. regulation development process is already required by the public participation requirements contained in 40 CFR part 256. 3. Enforcement Considerations States that adopt programs meeting the Federal minimum Criteria may enforce. them in accordance with State authorities. The preamble to the proposed rule noted that EPA expected the States to assume primary responsibility for implementing and enforcing the revised Criteria, consistent with the solid waste management framework established by the statute in Subtitle D. One commenter expressed concern that by allowing States to enforce the revised Criteria there would be variation in interpretation and ,enforcement of the revised Criteria from State to Stale. This commenter Suggested that EPA assure uniformity in the interpretation and enforcement of the revised Criteria. - EPA believes that variation in the control applied to landfills In different States is appropriate to account for site- specific factors (e.g., hydrology, - Precipitation). Therefore, today's rule sets performance standards that allow consideration of site-specific conditions. EPA agrees that while the Federal standards are flexible to allow different site-specific controls in different States, the Federal performance standards should be consistently interpreted from State to State. To ensure that these provisions are consistently interpreted, EPA plans to develop technical guidance for MSWLF owners and operators and State regulatory officlals to enhance uniformity in interpretation of the revised Criteria. Citizens may seek enforcement of the revised Criteria, independent of any State enforcement program, by means of citizen suits under section 7002 of RCRA. Section 7002 provides that any person may commence a civil action on his own behalf against any person who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order that hasbecomeeffective pursuant to RCRA. Once the self -implementing criteria in today's rule become effective, they constitute the basis for citizen enforcement actions brought in Federal court against facilities that fail to ' Ictober 9, 1991 /Rules and Regulafions 50995 comply. It is important to note, however, that today's MSWLF Criteria offer alternative regulatory approaches in States with approved programs. For example, an approved State may use a Performance standard in approving the design of a landfill rather than rely on the uniform liner standard in § 258.46(a)(2) of this rule. In approving State programs, EPA will review and explicitly approve the State's design or .performance standard approach. In view of this approval. EPA expects that . owners or operators in approved States who use the State's standard will be found by federal courts to have - complied with the design requirements in part 258. Under section 505 of the.CWA, any person may commence a civil action against any person alleged to be in _violation of an effluent standard or Radiation under the CWA: "Effluent standard or limitation' is defined to include a regulation under section 405(d) of the CWA. (Section 505(1), 33 U.S.C. - 1365(f).) Because the part 258 Criteria are also standards for sewage sludge use and disposal promulgated under section 405(d) of the CWA, citizen enforcement action in Federal court is authorized against rich -complying facilities accepting sewage sludge. EPA invited public comment on the overall role of EPA enforcement under subtitle D, the proper elements of an enforcement policy for ensuring compliance with the revised Criteria, and strategies for targeting MSWLFs that pose the greatest threat to human .health and the environment. The Agency received one comment on the issue of Federal enforcement of the revised Criteria. This commenter noted that the legislative history of section 4005(c), the . section authorizing EPA to enforce compliance with the revised Criteria, reflected Congressional concern with the poor record of State implementation of the original provisions of subtitle D. This commenter suggested that the continuing inadequacy of State solid waste program implementation and enforcement, as noted in EPA's own 1988 Report to Congress, argues for a vigorous Federal enforcement role. EPA agrees with the commenter that Congress intended EPA to enforce the revised Criteria in States that have an Inadequate permit program. However, the statute is clear that EPA has no enforcement authority under section 4005 in approved States. EPA does, however, retain authority under section 70oafor imminent hazards. Commenters also questioned whether EPA has authority, to enforce the revised Criteria on Indian lands within a State without an approved permit program. . This issue will be addressed in the State Program approval rulemaking discussed earlier in this preamble. D. Ground-Waterpoliay Another issue EPA had to address in developing today's rule was its ground- waterprotection policy. This involves the role of ground -wafer resource evaluation in implementing the revised Criteria as well as additional controls imposed by$tate wellhead protection programs developed pursuant to the Safe Drinking Water Act. I. Differential Protection of Ground - Water Resource value refers to the current and futureimportance of ground water as a water supply and as an ecological resource. Highly saline ground water or ground water with very low yield may ,.havea law resource value. Pristine ground water or'ground water in high demand that cannot easily be replaced or restored similarly may have a high resource value. As EPA was developing the framework for the revised Criteria, the Agency considered at length the subject of differential protection of ground water based on its resabrce value. Specifically, EPA considered applying different federat'engineering controls, monitoring, and corrective action requirements according to the resource value of the ground water. In 1984 EPA issued.the Ground -Water Protection Strategy, which established the concept of differential protection of ground water depending on its resource value. Accordingly, three classes of ground water were identified. Class I ground waters are defined as special ground waters that are highly vulnerable .to contamination and that are either irreplaceable sources of drinking water or are ecologically vital. Class 11 ground waters are defined as current and potential sources of drinking water and those having other beneficial uses. Class III ground waters are defined as heavily saline ground water or ground water otherwise contaminated beyond the I evel allowing cleanup through methods commonly used by public water supply treatments. In 1991, EPA issued Its Ground Water Task Force Report which confunis the role of States in devising ground -water protection strategies to meet State -specific needs. In devising their solid waste programs. States are , expected to use ground -water classification and resource evaluations in making there State decisions. .The Agency's Ground -Water Protection Strategy and the concept of differential protection ofground water is 50996 Federal Register / Vol. 55, No. 196 / Wednesday; October 9, 1991 / Rules and Regulations incorporated throughout today's rule. After the effective date and prior to State program approval, this rule requires the use of a specific design in all environmental settings. Following Stale approval, the Wile provides States the flexibility to consider the resource value of ground water in determining appropriate landfill design, ground- water monitoring, and corrective action requirements. For example, today's rule allows Slates to approve loss stringent landfill designs based on the quality of ground water, in addition to other factors. The performance standard for landfill design requires that landfills be designed to meet driaking water standards at a relevant point of compliance in ground water. Approved States may consider the quality of ground water, including whether the ground water is currently used or reasonably expected to be used as drinking water, in selling a relevant point of compliance. By establishing the relevant point of compliance further from the landfill in cases where the ground water is not reasonably expected to be used for drinking water, an approved Stale may allow less stringent landfill designs. Subpart D of today's rule specifies Ihat the relevant point of compliance may be. up to 150 meters from the boundary of the landfill and must be on fend owned by the owner of the landfill. However, the Agency is currently examining No Issue as part of the //a�gqency's subtitle C corrective action ruia and if changes we made, they will be Incorporated into this rule. Differential protection also Is built Into today's corrective action requirements. Today's rule allows an approved State to determine that remediation of a release of an appendix II constituent Is not necessary in situations where the AISWLF is located over an aquifer that is not currently or reasonably expected to be a source of drinking water, and that Is not interconnected with waters to which the. hazardous constituents are migrating or are likely to migrate In a concentration(s) that would exceed the ground -water protection standards established under 1258.55(h), Furthermore, today's rule allows the owner or operator to consider the value of ground -water in setting the schedule for Initiating and completing corrective action. For example, a tighter schedule may be set for Initiating and completing remedial activities for groundwater of higher resource value than for ground water of lower resource value. Today's rule also Incorporates ground- water quality as a factor to be used by approved States in setting the phase-in schedule for ground -water monitoring. EPA also is requiring that the frequency of ground -water monitoring be specified by an approved State based on site- specific factors, Including the resource value of the ground water. This approach, however, would not allow complete exemptions from ground -water monitoring for facilities located over low value ground water. Even though today's rule allows an approved State to waive the cleanup of a particular appendix Il constituent in certain low value ground waters, the Agency believes that at least minimal groand-water monitoring is necessary at all MSWLFs (with the narrowly defined exception of small landfills discussed above) to evaluate the performance of facility design and operation and to identify potential threats to human health and the environment. Furthermore, HSWA specifically provides that the revised Criteria should require ground -water monitoring as necessary to detect contamination at facilities that may receive HHW or SQG waste. Finally, EPA believes ground -water resource value already plays an important role in local and State decisions regarding the siting of MSWLFs. In this rule EPA has not established Federal siting Criteria specifically based on resource value because EPA believes that, due to the number and nature of MSWLFs regulated under Subtitle D of RCRA, resource value considerations to MSWLF siting are more appropriately reade at the State and local levels. 2. Well Head Protection Programs Section 1428 of the Safe Drinking Water Act (SDWA) contains requirements for the development and implementation of State wellhead protection (WHP) programs to protect wells and wellfields that are used, or maybe used, to provide dr(nking water to public water systems. Under section 1428, each State is to adopt and submit to EPA for approval a WHP program that, at a minimum: (1) Specifies the duties of State agencies, local governments, and public water systems in the development and Implementation of the WHP program; (2) For each wellhead, determines the wellhead protection area (WHPA), as defined in section 1428(e) of SDWA, based on all reasonably available hydrogeologic Information on ground- " water flow, recharge, and discharge and other information the State deems necessary to adequately determine the WHPA; (3) Identifies within each WHPA all potential human sources of contaminants that may have any adverse health effects; [4) Describes provisions for technical assistance, financial assistance, implementation of control measures, and education, training, and demonstration projects to protect the water supply within WHPAs from such contaminants; (5) Includes contingency plans for the location and provision of alternate drinking water supplies for each public water system in the event of well or wellfield contamination by such contaminants; (6) Requires that consideration be given to all potential sources of human contamination within the expected wellhead area of a new water well that serves a public water system; and (7) Requires public participation in developing the WHP program. EPA believes that today's rule complements the resource protection goals of State wellhead protection programs. The specific criteria for the location and monitoring of MSWLFs in Oils rule will help protect ground waters used by public water systems. Under an EPA -approved State WHP program, the State may impose more stringent or additional controls and requirements for MSWLFs than are included in today's rule. Any owner or operator of a MSWLF, in addition to meeting the requirements under today's rule, must also be in compliance with the State's WHP program. Therefore, meeting the requirements of this rule alone will not ensure that an owner or operator of an MSWLF is in compliance with a State's WHP program. E. Issues Pertaining to Sewage Sludge As noted above, today's rulemaking fulfills a portion of the CWA section 405(d) mandate that EPA promulgate regulations governing the use and disposal of sewage sludge. For this reason, the part 258 Criteria for MSWLFs are jointly promulgated under CWA and RCRA authorities and apply to all MSWI.Fs in which sewage sludge is co -disposed with household wastes. EPA believes today's rulemaking fully -" addresses this widely -used sewage sludge disposal practice. The Agency received comments on two general issues pertaining to sewage sludge—pollutant limits for sewage sludge and removal credits. The preamble discussion below addresses these issues and presents the Agency's general rationale for using Part 258 to regulate sewage sludge disposal in MSWLFs. Federal ( VOL 56, No. 196 [ Wednesday, October 9, 1991 1. Pollutant Limits for Sewage Sludge In choosing to regulate sewage sludge disposal in MSWLFs by the part 258 Criteria, EPA decided-noPto establish pollutantspecific, numerical criteria for each toxic pollutant of concern in the sewage sludge for this sludge disposal practice. This decision is consistent with CWA section 405(d)(3), which permits EPA to promulgate alternative standards for protection of public health and the environment where EPA determines it is not feasible to prescribe numerical limits for pollutants of concern. Congress clearly recognized that circumstances would arise where it would not he technically feasible or scientifically justifiable for EPA to prescribe numerical limits for pollutants in sludge for certain sludge use and disposal practices. EPA concluded it was not technically feasible to develop specific numeric limitations for pollutants in sewage sludge that are co -disposed with municipal solid waste for the following reasons. In developing numerical limitations for specific pollutants for the February 6, '1989 sewage sludge rule, EPA assessed risk to human health and the environment associated with individual pollutants when used or disposed in five different ways (incineration, land application, distribution and marketing, disposal in surface disposal units or disposal In sludge -only landfills). For its assessment, EPA relied on detailed mathematic models to simulate the movement of pollutants through the environment to environmental endpoints at potential risk from these use and - disposal methods. A full discussion of this process is found in the proposal at 54 FR 5764-78. However, EPA cannot use its current models to describe the movement of sewage sludge pollutants from a co -disposal facility because of significant scientific uncertainties that confound any modelling effort. The same mathematical processes used to model pollutant movement from a aludge-only facility cannot be used to establish numerical limitations for the Pollutants in sewage sludge that is disposed of with municipal solid waste. The primary reason for this is chemical interaction between the pollutants in sewagesludge and those in municipal solid waste when disposed together In a landfill. The decomposition of garbage in the landfill results in the production of water-soluble, organic fatty acids (acetic, propionic and butyric) that promote the leaching of metals and other substances from the garbage. Sewage sludge; however, slows this process down, the sludge matrix acting to bind metals In insoluble farm; significantly reducing their potential for leaching from the landfill, Understanding of this phenomenon is stili preliminary and at.this'juncture, the Agency cannot measure the extent to - which sewage sludge reduces the mobility of metals in landfills, Until it - has some scientific basis for quantifying this process, the•Agency cannot calculate appropriate limitations for the pollutants in the sludge that is disposed of in the landfill. Compound'u�g the difficulty is the absence of data that would form the basis for conclusion about typical levels of organics and metals in garbage In order to select appropriate parameters for these components of any model. Sludge represents only about five percent'of the volume of the total mass being disposed of in the landfill. Without knowledge about the character of the municipal solid waste component to potential leaching, it is impossible to calculate limitations for the sludge pollutants. Because of the interactive effect, it would not be scientifically defensible simply to apportion some percentage of the pollutantato the sludge contribution. While EPA decided that numerical limitations for co -disposed sewage sludge were not feasible, the Agency determined that the design standards applicable to MSWLFs were adequate to protect human health and the environment. The design and engineering standards will prevent the migration of harmful pollutants from the waste leachate. Further, the rule _ Prescribes corrective measures in the event of migration of pollutants. In these circumstances, EPA concluded that these requirements met the protection standard of section 405. 2. Removal Credits Many industrial facilities discharge large quantities of pollutants to POTWs, where their wastes mix with wastewater from other industrial facilities, domestic wastes from private residences and run-off from various sources prior to treatment and discharge by the POTW. Industrial discharges frequently contain pollutants that are generally not removed as effectively by POTWs as by the industries themselves. The introduction of pollutants to a POTW from industrial dischargers potentially poses several problems. The discharges mayinterfere with a POTW a operation; resulting in inadequate _ treatment of domestic wastes and sewage. Pollutants may pass through the POTW into navigable waters if they are inadequately treated. Finally, even if partially or fully treated by the P6TW and removed from the POTW Rules and Regulations 50997 wastestream prior to discharge, these pollutants may settle in and' contaminate the sludges produced by a POTW, causing a sludge disposal problem. In order to prevent these potential problems, Congress has directed EPA In sections 307(b) -(d) of the CWA (33 U.S.C. 1317(bHd)) to establish pretreatment standards to "prevent the discharge of any pollutants through (POTWs), which pollutant interferes with, passes through,.or otherwise is incompatible with such works." (33 U.S.C. 1317(6).) Pretreatment standards limit the amount of a pollutantthat facilities in an industrial category may Introduce into a POTW, (Section 307(d), 33 U.S.C. 1317(4).) Congress recognized that in certain situations POTWs could provide some or all of the treatment of an industrial user's waste stream thatwould be required pursuant to the pretreatment standards. Codsequently, Congress established a discretionary program for POTWs to grant "removal credits" to the indirect discharger. (33 U.S.C. 1317(b).) The credit, in the form of a less stringent pretreahnent standard, allows an Increased amount of pollutants to flow from the indirect dischargees plant . to the POTW. Section 307(6) of the CWA establishes a three-part test for obtaining removal credit authority. Removal credits may be awarded only If (1) the POTW "removes all or any part of such tonic pollutant," (2) the POTW's ultimate discharge would "not violate that effluent limitation or standard which would be applicable to such toxic pollutant if it . were discharged by such source other than through a POTW, and,does not prevent sludge use or disposal by such (POTW) in accordance with section (405) .::' (Section 307(b), 33 U.S.C. 13176.) . EPA has promulgated removal credit regulations in 40 CFR part 403. On April 30,1986, the United States Court of Appeals for the Third Circuit Invalidated certain portion of the then - effective removal credit regulations. NRDC v, EPA, 790 F.2d 289,292 (3rd Cir. 1986), cert. denied, 107 S.Ct. 1285 (1987), Among other determinations, the Third Circuit held that,'under,section 307(b), EPA may not authorize any POTW to grant removal credits. to any Indirect discharger until EPA promulgates the comprehensive regulations addressing sewage sludge required by section 405 of the CWA. NRQC v. EPA, 790 F.2d 289, 292 (3rd Cir. 1986). Congress made this prohibition explicit in the Water Quality Act of 1987 (WQA). While temporarily staying the 50998 Federal Register / Vol. 56, No. 196 / Wednesday, 17ctober 9, 1991 / Rules and affect of the Third Circuit's decision until August 31, 1987, section 406(e) of t the WQA provides that, after that date, EPA shall not authorize any other removal credits until EPA issues the sewage sludge use and disposal regulations requiredby CWA section 405(d)(2)(a)(ti)• EPA considers lire part 258 regulations promulgated today to respond adequately to the Third Circuit's decision and section 406(e) of the WQA In the case of POTWs that dispose of all their sewage sludge through co -disposal in MSWLFs. These regulations comprehensively regulate this sludgeoa dlspal method. Consequently, the POTWif that dispose of all their sludge in co -disposal MSWLFs may apply to EPA for removal credits authority after the effective date of today's rule. EPA may grant such authority to any POTW that complies with the procedural and substantive requirements of the removal credits regulations. Section 403.7(a)(3) of EPA's removal credits regulations provides that a POTW maybe authorized to grant removal credits only if "the granting of removal credits will not cause the POTW to violate the local, State, and Federal sludge requirements which apply to the sludge management method chosen by the POTW." "Sludge requirements" are defined in 40 CFR 4017(a)(1)(11) to Include regulatory requirements under section 405 of the CWA. In the case of sludge co-dispased with municipal solid waste, these requirements are spelled out In today's rule. As previously stated today's rule satisfies CWA section 405 requirements through a combination of design and operational criteria in association with monitoring wells and corrective action In the effect of fallare. However, In consideration of the practicable capability of facilities to implement the requirements In the rule, the part 258 rule allows MSWLFs to phase fn compliance with certain requirements. Thus, while the MSWLFa must comply with moat of today's requirements within 24 months of publication, a MSWLF has 30 months to meet the financial responsibility requirements and up to five years after the publication dale of today's rule to comply with the rule's groundwater monitoring provisions. Consequently, it is likely that some POTWs will, during the phase -fn period, send sewage sludge to MSWLFs that have not yet Implemented some of the substantive requirements of the rule. While such a phase-in Is appropriate for MSWLFs, EPA has determined thatOT PWs should not be authorized to grant removal credits until the MSWLF o which the POTW sends Its sludge Is in compliance with all the part 258 requirements, The statutory scheme of section 307(b) requires sludge use and disposal standards under section 405 before EPA may authorize removal credits. These standards are the predicate to a determination that an indirect discharge to a POTW is not preventing disposal in accordance with these standards as required by section 307(b). But the mere publication of standards does not entitle a POTW to removal credit authorization. EPA's conclusion that today's rule protects public health and the environment against reasonably anticipated adverse effects—the. statutory standard of section 405 of the CWA—is based an the assumption that all the part 258 requirements are in place. Consequently, removal credits are not authorized before the statutory protective level is implemented. As Senator Stafford, one of the sponsors of the Water Quality Act of 1987 has pointed out (132 Cong. Rec. S 16427, daily ed. Oct. 16, 1986): -C ongress Intended the existence of sludge regulations, and compliance with those regulations, to be a precondition to the granting of removal credit& Therefore, under today's rule, in order to obtain removal credits authority, the POTW must send its sludge to an MSWLF that has in place all of today's requirements. Thus, any co -disposal POTW seeking to obtain removal credits authority must demonstrate that it is disposing of its' sewage sludge in an MSWLF that meets all the substantive requirements specified today, including all financial responsibility, ground water monitoring, and corrective action requirements. During the period when an MSWLF is phasing into compliance with the substantive part 258 requirements, a POTW relying on such a facility could not obtain authorization to grant removal credits. It should be noted that while it is the POTW's responsibility to demonstrate the MSWLFs compliance with part 258, such a demonstration may include a statement from the State or regulatory authority certifying that the MSWLF has implemented all part 258 requirements,z (to be cad! sludge use Clean We standards not proposed for sewage Us. Rather, the PMPaael ed sludge would be 258 criteria that would the dispoeel of sewage the part 503 standard., the including remedial requirements where the need for remediation has been triggered. Removal credits regulations do not preclude an industrial user or other interested party from assisting In preparing and presenting the' Information required in the POTW's application for removal credits authorization. (40 CFR 403.7(e)(7)). V. Summary of Amendments to Part 257 Today's final role specifies amendments to 40 CFR pact 257 that include conforming changes to part 257 that make it consistent with the proposed part 258, including an update to the maximum contaminant levels listed in appendix I of part 257. This section describes these amendments and the Agency's response to major comments received on the proposal. A. Conforming Changes to Part 257 Today's action adds municipal solid waste landfills to the list of exceptions to the part 257 Criteria contained In, 4 257.1(c). Because MSWLFs will now be covered by the part 258 Criteria, they are no longer subject to the part 257 Criteria that are generally applicable to solid waste disposal facilities and practices. The part 257 Criteria are otherwise unchanged with respect to their applicability, and remain in effect for all other facilities and practices, Today's rule also amends part 257 to -include definitions of the types of solid waste disposal facilities regulated by the part 257 Criteria: Landfills, surface impoundments, land application units, and waste piles. These new definitions clarify that these types of solid waste disposal facilities are subject to part 257. Finally, today's action makes certain conforming changes to 1257.3 4, which currently specifies that a facility or practice shall not contaminate . underground drinking water sources beyond the solid waste boundary. For purposes of this requirement, contamination is defined as concentrations of substances exceeding maximum contaminant levels, contained in appendix I to part 257, developed by EPA under section 1412 of the Safe Drinking Water Act. Today's action revises appendix I to incorporate additional MCLS established by EPA. Pursuant to the 1986 amendments to the SDWA. EPA is In the process of promulgating more MCLS. Part 257 will be revised again in conjunction with promulgation of these new MCLS. This Agency proposed and requested comment on a requirement that w4sposing POTWS send their sludge to Siete-permitted MSWLF& Federal Register ] Vo1. to,'No:' 19a /., Wednesday, October 9, 1991 / Rules' and. Regulations. 5099.3 same approach will be used to update 'the-MCLs used today in.part'258. - :Today's rule (both part 257 and part _ 258) uses the current Maximum Contaminant Level for lead of 50 ppb. The Agency recognizes that today's Yule does not incorporate changes to the lead MCL established by EPA in a recently promulgated drinking water regulation (56 FR 26460; June 7,1991). This regulation rescinds the current MCL of . 50 ppb for lead as of November 9,1992, . and establishes a technology-based . treatment standard. It does not establish a new MCL for lead. The.Agemcy is currently evaluating how to incorporate this recent change fa -this ani other- - Agency rules that use the current lead_ MCL of So ppb. EPA will propose necessary changes to today's rule once this evaluation is completed. B. Notification and Exposure Information Requirements . • The proposed. amendments to part 257 33 (53 FR328; August 3o,1906) included a notification and exposure information requirement for certain solid waste . disposal facilities. Under this proposed requirement EPA intended to obtain notificationand exposure information from a set of industrial solid waste disposal facilities that are of concern, including; Industrial landfills, Aurface impoundments, land application units;, waste piles, and construction/. demolition waste landfills. For reasons . set forth below, EPA intends to proceed immediately with an alternative .. , , . information gathering strategy that more clearly defines potential problems by --- seeking more useful Information than was proposed in the notification -. requirement The Agency is currently developing the components of that strategy. It may include, for example: An Industry -wide statistical survey that will help set priorities for government action. EPA will pursue this information gathering strategyin lieu of the Proposed notification requirement. These facilities are of concern to the Agency because they represent a large and diverse set of solid waste'disposal facilities that may receive quantities of • small quantity generator and household hazardous waste, and some may pose a threat to human health andthe environment Evaluation of the potential threats at these facilities is further ' compounded because of Iinilk facility'. design and monitoring criteria: The. : scope of the industrial nonhazardous weals problem is discussed In more "detail in EPA's 1.988 Repoit to Congress. on Solid Waste Disposal in, the United. . . States.. ' The information ihai EPA proposed to require from these facilities in the . notification consisted. of Iwo parts, including; " (1) A one-time notification that solicited Information about facility. owners, locations, amounts and types of wastes handled, and waste disposal practices applicable to existing facilities, and (2) Exposure information indicating - the numberof households located within one mile, of the facility and the number or ground -water monitoring wells at the facility. The.notification requirement was to be a preliminary step in assembling Information that would enable EPA to identify the universe of facilities; and at the same time serve to remind the owners and operators of industrial solid - waste disposal facilities that they are still subject to the existing part 257 criteria. The results of the notification requirementswould also be used to design subsequent more specific information collectionstrategies for the development of any future program actions covering these facilities. . The notification' And exposure informatiorLp quirements were intended to update and supplement information that EPA had previously collected on the identity of facilities and their waste management practices. For example, in 1987 EPA conducted a stratified survey of 18,051 establishments from 17 - different standard industrial categories . ($ICs), (see draft EPA ieport Screening Survey of Industrial Subtitle D Establishments, available to theRGRA docket), This survey was based on information obtained from Dun's ' Marketing, Inc., -which included establishment name, location, SIC . codes, and other financial information: The result of this survey provided EPA " with national and industry -specific estimates on: • The number of establishments that manage industrial subtitle D waste on site; • The number of establishments that manage subtitle D waste on site in landfills, surface impoundments, land application units, and waste piles; •. The number of landfills, surface impoundments, land application units, and waste piles used to'manage industrial subtitle D waste; and. • The quantity of industrial Subtitle D waste managed on to land-based waste management units. EPA estimated that 72,400 establishments managed. about 7 billion metric tons of industrial solid waste in 1935, and an estimated 20 percent of 12,000'establishaients used at least one type of)and-based waste disposal unit to manage waste. Further, about so percent of the industrial solid waste is generated and managed on site by.. ' facilities within the 17SICs surveyed. In its Report to Congress (Ref..1), EPF stated its beliefthat, based on the information EPA collected to date, industrial hazardous waste facilities as a class may pose a threat to human health and the environment However, .additional information would be needed to evaluate the nature and extent of that threat In the proposal, EPA proposed to begin the process of collecting Additional information on these facilities iby first establishing a baseline facility inventory through the pioposed Facility notification require'lndnt. The 'notification was planned as a first step in an'bifornlation collection process. EPA would use information received from the notification requirement to update and supplement facility inventory data that were already available to EPA to more accurately, define the size of the nonhazardous waste management facility universe. The inventory would aid EPA in . targeting categories of facilities For more detailed information collection that may be needed for the development of future waste management or other Agency program actions. " As a result'of public comments on the proposed notification requirement and • .additional information that has become available since the proposed ' . rulemtikfng,EPA has changed its thinking on how best to collect needed Imformation to characterize problems end`set priorities for addressing'this ' diverse universe of waste handlers. Some commenters argued that because of the diverse nature of industrial solid waste, more detailed information about the physical, and chemical ' characteristics of the waste would be needed to assess potential risks and support any development of waste management guidelines, than was. present on the proposed notification form. More detailed information might include specific data on hazardous constituents contained in the waste, disposalfacility size and location, L monitoring information, and' other detailed facility -specific ' information. The Agency agrees with the commenters arguments concerningthe scope of data elements necessary. ' In addition tothis information, the General Accounting Office (GAO) completed a recent report a (Ref. 30) that GAO,examined ground=water monitoring data, from 1121ndea4ial solid waste disposal facilities in callldnald andNew.lemy. Slate officials reported' that 6a'161'percenll of the 112 facilities studied indicatedground-water contamination (i.e., conatilue is el leyela,abara the State`s'stenderds or 1.continued 51000 Federal Register % Vol. 55, No. 198 confirmed the assessment of environmental threats made earlier by EPA In its Report to Congress (Ref, 1). This GAO report further emphasizes these findings using the results of an analysis of a study of 112 facilities In two slates. EPA believes the public comments received on the proposed notification, together with EPA's earlier findings concerning health threats and the findings in GAO's report, provide a compelling case to move forward more expeditiously than was previously Proposed toward a more comprehensive Information collection strategy to better understand the risks posed by these facilities and to assess the need for any future program actions by the Agency. EPA believes that, while the notification requirement proposed In the Mise proposal would provide EPA with better information than it currently has an the baseline inventory of facilities, it would not provide sufficientinformation needed to characterize potential problems and evaluate the need for u lura Agency action. Further, the time and resources required to complete this notification process would delay EPA's ability to accelerate a more detailed Information collection effort for Industrial nonhazardous waste management facilities. EPA would have to expand the notification requirements significantly to gather data that are believed to be needed. Instead of expanding the data requirements of tha notification, the Agency has, therefore, chosen to eliminate the notification and exposure information requirements In § 259.5 of today's final rule in order to move Pnaeribed ILTIte•1 At 32 (9 percent) of Ne 112 fadCaas, Iha known oe suapeeted ecuxa of ground- Walarm0lamtoaCoa Ma an ladumtrial landfill, audan Impoundment, oc eansuuationjdemolluou debris landfill. October 9, 3991 Rules and Regu forward expeditiously on a more comprehensive Information collection effort. As mentioned in the Introduction to this section, the Elements under consideration include: —An industry -wide statistical survey that will help set priorities for government action —Facility specific case studies to better understand facility operations, waste generation and waste management practices, and —An understanding of State program requirements and accomplishments, since States wlllundoubtedly remain the front-line government agencies In day to day environmental management. EPA anticipates that this approach will provide the Agency with the flexibility and cepability to better understand the specific relative health and environmental risks posed by the broad range of facWties and wastes understudy. VI. Summary of Part 258 The following Is a summary of each subpart of pert 258, A detailed discussion of major comments received on each subpart of the proposal and the Agency's response to these comments Is contained in Appendices B–H. A. SubpartA--General Subpart A contains the purpose, scope, applicability, and effective date of part 258 If 251%), It provides definitions necessary for the proper Interpretation of the rule (§ 258.2), and Indicates that there are other Federal laws and regulations with which an owner or operator of a MSWLF must comply (§ 258.3). The purpose of part 258 is to establish mf thrum national criteria for municipal solid waste landfills, Including MSWI.Fs used for sludge disposal and disposal of nonhazardous municipalwaste combustion (MWC) ash (whether the ash is co -disposed or disposed of in an ash monofill). Part 258 sets forth minimum national criteria for the location, design, operation, cleanup, and closure of MSWLF units. The rule provides that States will have flexibility in implementing these criteria, where States wish to run the program. A MSWLF unit that does not meet the part 258 Criteria will be considered to be engaged in the practice of "open dumping" in violation of section 9005 of RCRA. MSWLF units that receive sewage sludge and fail to satisfy these criteria will be deemed to be in violation of sections 309 and 905(e) of the Clean Water Act. Figure 1 depicts the decistanmaking process that owners and operators of MSWLF units should use to determine the applicability of part 258 requirements to MSWLF units. As indicated in the figure, the Criteria do not apply to owners and operators of MSWIYs that have stopped receiving waste prior to October 9, 1991 (see ' § 2581(c)} Owners and operators of MSWIYs that stop receiving waste between October 9, 1991 and October 9, 1993 are exempt from all of the requirements of part 258 except the final cover requirements cited in § 2581(d). Finally, MSWIYs that receive waste on or after the effective date of today's rule October 9,1993 must comply with all provisions of part 258 on the effective date with two exceptions. They are (1) the ground -water monitoring provisions of subpart E, which are phased in over a five-year period beginning on the date of publication of today's Rule, and (2) the financial responsibility provisions of subpart G, which are effective 30 months after the date of publication of today's Rule. snL G CODE 0550-60-9 ' Federal Registee.� Vol'. 5ff, No.19fl � L1dednesday, tJeto6er g;19g1 � Rimes andHegtr$at%s Figure t What requirements• apply to my MSWLF'? Is your facility Part 258 does not anything otherYES apply to you than a MSWLF? NO Did your MSWLF stop receiving waste prior to YES today? NO Will your MSWLF stop receiving waste during the next YES 24 months? NO . Will your MSWLF be receiving waste on or after 24 YES months from today? O'}'110006L `p BIWNO CODE$SfiD-6 4. Part 258 does not apply to you You must comply only with the final cover requirements of §258.60 (a)(2) 9 You must comply with all of Part 258 51002 Federal Register / Vol. 56, No. 196 /. Wednesday, October 9, 1991 / Rules and Regulations A Subpart B—Location Restrictions certain of these location restrictions are owner or operator must place these - Subpart D of today's rule establishes applicable to existing units. All of demonstrations in the operating record six location restrictions applicable to today's location restrictions require the and notify the State Director. 61SWl.F units. As shown in Figure 2, owner or operator to demonstrate that the meet the s :ecific criteria, Tb- 91L1JN0 0006 658o -50-Y Register / Vol. 56, No.196 ING CGDE 8560-50-C 51003 Fidure 2 Which. Location Restrictions Apply to my MSWLF?' :. New Units and Existing Units Lateral (Expansions 1. Airports 1. Airports 2. Floodplains 2. Floodplains 3. Unstable Areas 3. Unstable Areas 4. Wetlands 5. Seismic Impact Zones 6. Fault Areas ING CGDE 8560-50-C 51003 51004 Federal Re ( Vol. 55, No. 196 / Wednesday, October 9, 1991 / Rules and 1. Section 258.10 AirportSafety Under today's rule, owners or operators of new MSWLF units, existing' MSWLF units, and lateral expansions located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used only by piston -type aircraft -must demonstrate that the unit does not pose a bird hazard to aircraft The owner or operator must notify the State Director (as with all of today's demonstrations) that the demonstration has been placed In the operating record. In addition, today's rule requires that owners or operators proposing new MSWLF units or lateral expansions within a five -mile radius of any airport runway end used by turbojet or piston - type aircraft must notify the affected airport and the appropriate Federal Aviation Administration (FAA) office. This procedural requirement is consistent with existing FAA Order 5200.5A. 2. Section 25811 Floodplain The floodplain provision applies to new MSWLF units, lateral expansions, and existing MSWLF units located In 100 -year floodplain. These MSWLF units may not restrict the flow of the 100 -year flood, reduce the temporary water storage capacity of the floodplain, or result In the washout of solid waste so as to pose a hazard to human health or the environment. 3. Section 258.12 Wetlands Today's wetland provisions apply only to new units and lateral expansions of existing units; they do not apply to existing units. New MSWLF units or lateral expansions of MSWLF units are barred from wetlands unless the owner or operator can make the following demonstration to the Director of an approved State. First the owner or ' operator must rebut the presumption that a practicable alternative to the proposed landfill is available that does not involve wetlands. Second, the owner or operator must show that the construction or operation of the landfill will not cause or contribute to violations of any applicable Slate water quality standard, violate any applicable toxic effluent standard or prohibition, jeopardize the continued existence of and'ngcred or threatened species or critical habitats, or violate any requirement for the protection of a marine sanctuary. Third, the owner or operator must demonstrate that the MSWLF unit will not cause or contribut to significant degradation of wetlands. To this end, the owner or operator must ensure the Integrity of the MSWLF unit, minimize impacts on fish, wildlife, and other aquatic resources and their habitat from release of the solid waste, and assure that the ecological resources in the wetland are sufficiently protected. Fourth, the owner or operator must demonstrate that steps have been taken to attempt to achieve no net loss'of wetlands by Furst avoiding impacts to wetlands to the maximum extent practicable, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions. Because this demonstration must be approved by the Director of an approved State, this provision effectively bans the siting of new MSWLF units and lateral expansions in wetlands In States that do not have an EPA -approved permitting program. On August 9, 1991, the Administrator announced a comprehensive plan for the protection of the Nations wetlands. Included were a number of actions to improve the workability of the Clean Water Act section 404 regulatory program, which regulates the discharge of dredged or fill material into wetlands. Among these changes will be the development of wetlands categories by an interagency technical committee based on wetland value. After such a categorization scheme is developed, the mftigatien sequence (i.e.. avoidance, minimization, and then compensation) will be retained for the high value wetlands category, and projects in other wetland categories will be required to offset wetlands losses through compensatory mitigation. When such wetlands categories are identified, the above changes to the section 404 permitting program will be Implemented through amendment of applicable legal authorities. Section 258.12 of today's rule is consistent with regulatory provisions currently governing the section 404 program. When the section 4o4 regulatory program is modified in accordance with the Administrator's wetlands protection program, relevant portion of this rule will be modified accordingly. Furthermore, four agencies have recently published proposed revisions to a technical guidance document Implementing the current regulatory definition of wetlands, and the agencies will shortly be proposing to codify portions of that document in the Code of Federal Regulations. See 56 FR 40446 e (Aug. 14, 1991). The definition of wetlands contained In 4 258.12 of today's rule reflects the Agency's current definition under the section 404 program. See 40 CFR 232.2(r). When the agency proposes amendments to the definition of wetlands under the section 404 program, such changes will also be proposed for the definition contained in 1258.12 of today's role. 4. Section 258.13 Fault Areas Today's rule bans the location of new MSWLF units and lateral expansions' within 200 feet (80 meters) of faults that have experienced displacement during the Holocene Epoch. in States with approved programs, the owner or operator may site within the 200 -foot zone if the owner or operator demonstrates to the Director of an approved State that an alternative setback distance of less than 200 feet will prevent damage to the structural integrity of the MSWLF unit and will be protective of humanhealth and the environment 5. Section 258.14 Seismic Impact Zones Today's Wile bans the location of new MSWLF units and lateral expansions In seismic impact zones. in States with approved programs, owners or operators may locate new MSWLF units and lateral expansions in a seismic impact zone If they successfully demonstrate to the Director of an approved State that the unit is designed to resist the maximum horizontal acceleration in Bthffiedmaterial for the site. The design features to be protected include all containment structures (I.e.. liners, leachate collection systems, and surface water control systems). For purposes of this requirement, seismic Impact zones are defined as areas having a 10 percent or greater probability that the maximum expected horizontal acceleration in hard rock expressed as a percentage of the earth's gravitation pull (g), will exceed 0.10g. n 250 years, 6. Section 258.15 Unstable Areas Owners or operators of new MSWLF units, lateral expansions, and existing MSWLF units located in unstable areas must demonstrate to the State Director's satisfaction that the integrity of the structural components of the unit will not be disrupted. The demonstration must show that the structural components of the MSWLF can withstand the impacts of establishing events, such as landslides. The structural components include liners, leachate collection systems, final cover systems, run-on and run-off control systems, and any other component used in the construction and operation of the MSWLF unit that is necessary for Federal Register / Vol. 58, No. 198 / Wednesday, October 9, 1991 / Rules. and .Regulations 51(105 protection of human health and the. close the MSWLF unit within five years G Subpart C—Operating Criteria on envirtnen[. of the date of publication of this, rule . Subpart C of today's rule establishes 7. Section 258.18. Closure of Existingunless Units' � the Director of an approved State extends the deadline. The Director of an . operating requirements for new •Today's rule requires owners and - approved State may extend the deadline for up to two years, but only after lMSWLF units; existing MSWLFa, and lateral ateral expansions..Fiewre 3lists these operators of existing MSWLF units that considering the availability of operating requirements, each of which is cannot make the airport safety, , floodplain, or unstable area alternative waste disposarcapacity and explained briefly below. , demonstrations required under � ' � ' the potential risk to human health and p BILllaa.rODe ssso-w-u � ' g$ 258,10 a`, 258.11(al, or 253.15(a) to ,' the environment - I - 51006 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 19911 Ruies and Regulations Figure 3 OPERATIONAL REQUIREMENTS All owners/operators must: - Exclude the receipt of hazardous waste Provide daily cover - Control on-site disease vectors Provide routine methane monitoring Eliminate most open burning - Control public access - Construct run-on and run-off controls - Control discharges to surface water Cease disposal of most liquid wastes - Keep records that demonstrate compliance Mwea cone csea Federal Register / Vol. 56, No. 196 / Wednesday, October 9. 1991 ./ Rules and Regulations . 51507 Y. SeeElon 258.20 Procedures for and implement a remediation plan Containers of liquid waste can be ..Excluding the Receipt of Hazardous within BO days. placed in MSWLF units only when the Waste containers h are small containers Today's rule requires owners or operators of all MSWLF units to implement a program at the facility for detecting and preventing the disposal of regulated quantities of hazardous wastes and polychlorinated biphenyl (PCB) wastes. This program must include random inspections of incoming loads, records of any inspections, and training of facility personnel to recognize regulated hazardous waste and PCB wastes, and notification to States with authorized RCRA.subtitle C programs or the EPA Regional Administrator in an unauthorized State if a regulated hazardous waste or PCB wastes are discovered at the facility. 2. Section 258.21 Cover Material Requirements . Today's rule requires owners or operators of all MSWLF units to cover disposed solid waste with at least six inches of earthen materials at the an of each operating day. Daily coverts necessary to control disease vectors, fires, odors, blowing litter, and scavenging. The Director of an approved State can temporarily waive the daily cover requirement during extreme seasonal climate conditions end may allow alternative materials to be used as daily cover material. . & Section 258.22 Disease Vector Control Today's rule requires owners or operators of all MSWLF units to prevent or control on-site disease vector populations using appropriate techniques to protect human health and the environment 4. Section 258.23 Explosive Gases Control Today's rule requires the owners or operators of all MSWLF units to ensure that the concentration of methane generated by the MSWLF not exceed 25 percent of the lower explosive limit (LEL) in on-site structures, such as scale houses, or the LEL itself at the facilityproperty boundary. The owner or operator must implement a routine methane monitoring program, with at least a quarterly monitoring frequency. If the methane concentration limits are exceeded, the owner or operator must notify the State Director within seven days that the problem exists and submit 5. Section 258.24 Air Criteria Section 258:24(a) requires owners or operators of all MSWLF units to comply with applicable requirements of State Implementation Plans (SIPs) developed under section 110 of the Clean Air Act (CAA). Open burning Is prohibited except in limited circumstances, which include the infrequent burning'of agricultural wastes, silvicultural wastes, land -clearing debris, diseased trees, or debris from emergency clean-up operations. B. Section 258.25 Access Requirements Section 258.25 requires owners or operators of all MSWLF units to control public access to MSWLF units and to prevent illegal dumping of wastes; Public exposure to hazards at MSWLFs, -and-unauthorized vehicular traffic. 7. Section 25&28 Run-on/Run-off Control Systems Section 258.28 requires owners or operators of all MSWI.F units to design,' construct, and maintain run-on and iiin- off control systema to prevent Bow onto and control flow from the active portion of the MSWLF unit Run-off from the active portion of the unit must be handled in accordance with the surface water requirements of today's rule. & Section 25&27 Surface Water Requirements Under today's rule, all MSWLF units must be operated in compliance with National Pollutant Discharge Rlimination System MFS) requirements, established pursuant to 'section 402 of the CleanWater Act. Any discharges of a nonpoint source of Pollution from anMSWLF unit into waters of the United States must be in conformance with any established water quality management plan developed under the Clean Water Act... 9. Section 258.28 UquidsRestrictions In today's rule, the disposal of bulk or noncontainerized liquid wastes in MSWLF units is'prehiblted, with two exceptions: (1) The waste fs household waste (other than septic waste) and (2) the waste is leachate or.gas condensate that is derived from the MSWLF unit, and the MSWIY unit is equipped with a composite liner and leachate collection system. 'similar in size to that typically found n household waste;. (2) are designed to hold liquids foratse other than storage; or (3) hold household waste. "Liquid waste" is defined in today's rule as any waste material determined to contain free liquids as defined by Method 9095 'Taint Filter liquids Test". 10. Section 2M.29Recordkeepin8 Requirements ` Today's rule requires that the documents and records required under this Part be retained near the facility in an operating record by the owner or operator of eachMSWLF unit. (An alternative location may be approved by the Director of an approved State.) These documents are listed in § 258.29(a) of today's rule. Upon completion of each document required . in the operating record, the owner or operator must notify the State Director of its existence and its addition to the operhting record: Furthermore, all information contained In the operating record must be furnished upon request or be made available at all reasonable times for inspection by the State Director. - Today's rule allows the Directu. of .. approved State to set alternative schedules for the reeordkeeping and notification requirements specified in the rule except the notification requirements In § 258.10(b)pertaining to the notification of the FAA by owner/ operators planning to site anew or lateral expansion of a MSWLF within a 5-nitle radius of an airport, and § 258.55(g)(1)(iii) pertaining to the notification of persons who own landor reside on land overlying a plume of ground -water contamination D. Subpart D -7 -Design Criteria _ Subpart D of today's rule establishes facility design requirements applicable to new MSWLF units and lateral expansions. These requirements do not apply to existing units. Today's final design criteria provide owners and operators with two basic . design options: A site-specific design that meets the performance standard in today's rule and is approved by the Director of an approved State or a composite liner design. These two design options are depicted graphically in Figure 4. , BILL= Cede 658o-eaY 51608 Federal Register / Vol. 96, No.196 / Wednesday, October 9, 1991 / Rules and Regulations .. r E rom 'L Q A aw ❑� za U) LU A »- ZLU p °•.., o ¢ d a °i c O a +. c U m a cc cca = a,. Q c w a E m y o n m o 3 0 1N -M ¢U o c .Eco LU , C� o wLU a Qp Q. m O > c m ca n o F- tm t c =• 0 Z a. °- N y C C ii F a a� JV O C z in c W X 't Q C ;° 3 m o o d .c udi = LU o t- U E C a Z a= o ZC7 «:off LL — coo cA LU p E x n zw p yr z LU cn Z no wr �-U Fn LU O� ao E U O U a a X c a i Federal Ragister / Vola - The first option, which is available in '.approved States, allows owneis or operators to consider site-specific ` conditions in developing a design that must be approved by the Director of an approved State. This design must meet the performance standard in § 258.40, which requires that the design ensure that the MCLs (Table 1 of today's rule) will not be exceeded at &.a relevant .will of compliance. • . When evaluating whether designs - meet the performance standard the approved States must consider a number of site-specific factors, such as the climate and hydrogeology of the site. For example, in areas where ground water is vulnerable, the State may require a compositeaine2 system. In other areas where ground water is less - vulnerable, the State may determine that a less comprehensive design meets the Performance s tandard. State program approvals will be established in accordance with the "State Implementation Rule," expected to be proposed in early 1992, .The second option, the"composite liner system, is required only for landfills located in States without EPA approved programs. The composite liner system is designed to be protective in all locations, including poor locations. It consists of a composite liner, including a flexible membrane liner and a compacted Boll component, and a leachate collection and removal system. EPA is concerned that certain owner/ operators of new units or lateral expansions may be forced to use the design standard in § 258.40(a)(2) in situations where the composite liner specified in that section is not necessary to protect human health and the , _ environment, and their state does not have program approval. In these cases the performance standard under § 258.40(a)(1) may be more appropriate since it would potentially avoid an . unnecessarily stringent design. Therefore, the Agency has established a petition process in § 258.40(e). This process allows the owner/operator to use the performance standard in § 258.40(a)(1) if the State determines that the owner/operator's design meets the performance standard, and the State petitions EPA to review its determination, and EPA either approves the design or does not disapprove the design within 30 days of receipt. Additional discussion regarding .. today's design criteria can be found in sections IV.E and IV.0 and appendix D of this preamble- . . '.I I .., . .,..\i!.w No. 199 ./ Wednesday, October 9, 1991/' Rules and E. SubportE-Ground-Water Monitoring and Corrective Action' a. To Whom Does This. Requirement Apply? Today's rule requires a system of monitoring wells to be installed at new units, lateral expansions, and existing MSWLF units. Owners and operators of landfills that qualify for the small " community exemption are not required to comply with the requirements of this subpart In addition, today's rule provides for limited waivers for owners or operators who can demonstrate to the Director of an approved State that the MSWLF unit Is located above a hydrogeologic setting that will prevent hazardous constituent migration to ground water during the active life of the unit,, as well as during facility closure and throughout the post -closure period (§ 258.50(b)), b. When Must Ground -Water Monitoring be in Place?. New MSWLF units must have ground- water monitoring systems in place prior to accepting waste. The schedule for installing the groand-water monitoring system at existing MSWLF units and lateral expansions is dependent upon the location of the landfill with respect to the nearest drinking water intake Today's rule allows the Director of an approved State to establish an alternative compliance schedule for phasing mtheground-water monitoring requirements at existing MSWLF units. This alternative schedule provides that all existing MSWLF units will be required to have ground -water monitoring systems by October 9, 1996 (§ 258.50(d)). c. What Criteria Must the Ground -Water Moniforing5ystem Meet? . The ground -water monitoring system must consist of a sufficient number of appropriately located wells able to yield ground -water samples from the _ uppermost aquifer that represent the quality of background ground water and the quality of ground water passing the relevant point of compliance as specified by the Director of an approved State (§ 258.51). Each MSWLF unit is required to have a separate ground- water monitoring system unless the Director of an approved State allows multi -unit ground -water monitoring systems based on consideration of several factors. Monitoring wells must be cased in a manner maintaining the ;egulatlons - 51009 integrity of the bdie hole and must.be maintained so as to meet design specifications. The number, spacing, and depths of monitoring wells may be. based on site -speck characteristics, but each ground -water monitoring system must be certified as adequate by a qualified ground -water scientist or approved by the Director of an approved State: d. What are the Procedures for Sampling and Analysis? The rule provides procedures for . sampling monitoring wells and methods for the statistical analysis of ground- water monitoring of hazardous constituents released from the MSWLF (1258.53). Requirements are included for determination of ground -water elevations, background ground -water quality, and the number:of samples to be collected. - e. What are the Steps in the Ground - Water Monitoring and Corrective Action Programs? Todayts monitoring and corrective action provisions include three steps; which are depicted in Figure 5. In the first step, today's rule requires owners or operators of MSWLFs to establisli _ background concentrations and sample - at least semiannually during the active life of the facility, closure, and post - closure periods for a set of detection monitoring indicator parameters (§ 258.54). These indicator parameters include 47 volatile organic compounds and 15 metals (see Appendix I). The Director of an approved State may delete any of the constituents in Appendix I If it can be determined that a constituent is not reasonably expected to be contained in or derived from the waste contained in the unit. In addition, the Director of an approved State may establish an alternative list of inorganic indicator parameters for a MSWLF unit, in lieu of some or all of the heavy metals (constituents 1-15 in Appendix I), if the alternativeparameters provide e reliable indication of inorganic releases from the MSWLF unit to the ground- water. The Director of an approved State also may specify an alternate fregeency for repeated sampling of - Appendix I constituents during the active life of the MSWLF, and during post -closure. The alternative frequency during the active life must be no less than annual. 1"UtNa CODE 6560-5bm 51010 Federal Register / Vol. 60. No. 190 J Wednesday, October 9,1991 / Rules and Reguiations Figure 5 Ground -Water Monitoring and Corrective Action Monitoring Program • Install Monitoring System (258.51) • Establish Sampling and Analysis Program (258.53) Detection Monitoring (25 . Begin Semi Annual Detection Monitoring for Appendix I Constituents Assessment Monitoring (258.55) Is - Sample for Ali Appendix 11 Constituents There a - Set Ground -Water Protection Standard for Detected Statistically Yes Appendix 11 Constituents Significant Increase - Resample for Detected Appendix II Constituents and All in Appends I Appendix I Constituents Semi -Annually \nstiluents'? . Repeat Annual Monitoring for'AII Appendix If Constituents . Characterize Nature and Extent of Release No Continue/Return to Detection Monitoring Are All N Appendix It .Constituents Below No Continue Assessment Monitoring 0K1*a CODE two -50-C Is There a Statistically. Significant Increase in Appendix II Constituents Over Ground -Water Corrective - Assess Corrective YesMeasures (258.56) Evaluate Corrective Measures and Select Remedy (258.57) - Implement Remedy (258.58) ., V:.3 „_•t t, rF i. 1. ..7. F4 A1.. .4., ]..d!.., ..... I:.., ry',,.rk ., n .v.., n Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Rei uli if any of the detection monitoring parameters are detected at a statistically sighificant level over the established background, concentrations, the owner or operator must move to the. second step, assessment monitoring, and notify the State Director, After determining a statistically significant increase over background concentrations, the owner or operator must establish an assessment monitoring program unless he or she can demonstrate, based on certification by a qualified ground -water scientist (or approval of the Director of an approved State), that the contamination has .,resulted from a source other than the - landfill or that the increase resulted from an error in $ampling, analysis, statistical evaluation, or natural variation in ground -water quality. Assessment monitoring (§'25&55) requires annual analysis forthe full list of hazardous constituents included in appendix U. However, the Director of an approved State may specify an, alternative frequency for annual sampling and analysis of the full list of appendixfi constituents, and may specify an appropriate subset of wells for the annual appendix R analysis. The Director of an approved State also may modify the list of constituents in .. appendix If if it can be determined that a constituent is not reasonably expected to be in or derived from the waste . contained in the unit. If any -appendix if constituents are detected, in either the Initial or repeated appendix II analyses, the owner or operator must notify the State Director and continue to monitor, at least semiannually, for those constituents in appendix 11 that were detected. The Director of an approved State may specify an alternative frequency other than semiannual. If the owner or operator demonstrates, at any time during assessment monitoring, that all of the detected appendix Il constituents are at or below background values for two consecutive sampling events, he must notify the State and may return to detection monitoring. For each appendix It constituent that Is detected, background concentrations and a ground -water protection standard (GWPS) must be seL The GWPS must be the MCL ar•background concentration - level for the detected constituent. However, the Director of an approved State may set an alternative GWPS based on criteria defined in today's rule. The owner or operator must compare .. the levels of those detected appendix II coristituents'to the appropriate GWPS, if ,subsequent monitbring.indicates,a ' ' - :, statistically significant Increase over the GWPS, the owner or operator is ' required to notify the State Director and local officials and characterize Lie _ nature and extent of contamination. The owner or operator must make a best effort to characterize the nature and extent of the plume, including the delineation of the plume off site. As part. of characterizing the nature and extent of the release, the owne'r or operator ' must install additional wells, if ' , necessary. At least one well, however, must be installed at the facility. boundary in the direction of. contaminant migration in order to ascertain whether or not the contaminants have migrated past the facility boundary. If contamination has migrated off-site, the owner or operator must notify individuals who own land or reside on land overlying the plume. The owner or operator must then evaluate alternative corrective measures (§ 258.56) and select the appropriate remedy (1258.57). During this phase, the owner or operator is required to continue at least semiannual monitoring, (or an alternative frequency no less than annual)for all appendix I constituents (or an alternative list approved by the Director of -an approved State) and for those appendix R constituents exceeding the GWPS. As part of evaluating potential remedies, the owner or operator must hold a public meeting to discuss the remedies under consideration (prior to selecting a.final remedy). Once the owner or operator has selected a remedy, he must place a description of the selected remedy in the operating record and notify the State Director, The Director of an approved State , may determine, however, that remediation of a release is,not necessary if. (1) The ground water is contaminated by multiple sources and cleanup of the contamination resulting from the MSWLF will provide no significant reduction in risk; (2) the contaminated ground -water is not currently or reasonably expected to be a source of drinking water and is not hydraulically connected to other waters; (3) remediation is not technically feasible; or (4) unacceptable cross - media impacts would result from remediation. After the remedy has been selected, the owner or operator is required to implement the corrective measure, establish a correctiveaction ground- water monitoring program, and take any necessary Interim measures (§ 258.58). During Implementation of the corrective measure; the owner or operator may - • . determine that a requirement for the remedy cannot be met. In this situation, the owner or operator must obtain certification of a qualified ground -water scientist (or approval of the Director of an approved State) that the. requirement ' .cannot be met, notify the State Director,. and implement in alternate measure. ' Once.hnplemented, corrective action . must continue until the owner or operator achieves compliance with the' GWPS for a period of three consecutive years or an alternate period of time determined by the Director of an " appioved'State. Upon completion, the owner or operator must obtain .. certification that the remedy is complete from 'a qualified ground -water scientist (or approved by the Director of an approved State) and notify the State Director. . F. Subpart F—Closure and Post Closure - Care Today's rule requires owners or operators of new MSWLF units, lateral 'expansions, and existing MSWLF units to close each unit in accordance with specified standards and to monitor and maintain the units after closure. in addition, the rule requires all owners or operators to prepare closure and post - closure plans describing these activities and to comply with a minimum 'set of procedural requirements. 1. Closure Requirements All owners or operators of MSWLF units must install a final cover designed to minimize infiltration and erosion. The infiltration layer must be a minimum of 18 inches of earthen material that has a permeability less than or equal to the permeability of the bottom liner system or natural subsoils, or no greater than 1 X10-5 cm/sec, whichever is less. The erosion layer must be a minimum of six inches oPearthen material that can sustain native plant growth. The Director of an approved State may allow an alternative cover design if the cover layers achieve the same objectives as _ the specified design in the final rule. 2. Post -Closure Care Requirements Today's rule requires ell owners or operators to conduct post -closure care activities for a period of 30 -years after the closure of each MSWLF unit. The Director of an approvedStatemay either reduce the W -year post -closure period if the Director determines a shorter period will be protective of human health and the environment or increase the post -closure care period if he/she determines that a lengthened period is necessary to protect human .health and the environment. During the, past -closure care period. -all owners or operators of MSW1F units mast 51012 Federal Ragister / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations' maintain the integrity and effectiveness of the final cover, and continue ground- water monitoring, gas monitoring, and leachate management. 3. Planning Requirements Today's rule also requires owners or operators of MSWLF units to prepare closure and post -closure plans describing activities that will be undertaken to properly close each MSWLF unit and maintain them after closure. These plans must be prepared and'placed in the facility operating record no later than the effective date of today's rule, or by the Initial receipt of The closure and post -closure care standards also Include certain procedural requirements. First, prior to closing each landfill unit an owner or operator must notify the State Director and Include the notification in the facility operating record. Second, the owner or operator must begin closure of a landfilll unit within 30 days after the final receipt of waste and complete closure within 180 days. Extensions of both of these deadlines may be granted only by the Director of an approved State and only If certain criteria ere met Third following closure of the last landfill unit. owners or operators of all MSWLF units must record a notation In the decd to the property, that indicates that the property has been used as an MSWLF unit and that its use is restricted. Finally, owners or operators of all MSWLFz must notify the State Director and place In the facility operating record a certification signed by an Independent registered professional engineer (or approved by the Director of an approved State) that verifies that closure and post -closure core activities have been conducted in accordance with the closure and post - closure plans. O. Subpart C—Financial Assurance criteria design changes increase the costs at the MSWLF unit An owner or operator may reduce his cost estimates and the amount of financial responsibility provided he places a justification for the reduction in the estimate in the _ operating record and notifies the State Director. Today's rule includes a list of specific financial mechanisms that may be used to demonstrate financial responsibility, as well as criteria for Judging whether other mechanisms are acceptable. The rule permits the use of a trust fund with a pay -in period, surety bond, letter of credit, insurance, State -approved mechanism, and State assumption of responsibility. Today's Wile releases an owner or operator from closure, post -closure care, or corrective action financial responsibility when he or she has notified the State Director that he has placed in the faciliy operating record a certification signed by sin Independent registered professional engineer (or approved by the Director of an approved State) that the specific activities (i.e" closure, 30 years of post -closure care, corrective action) have been completed in accordance with the appropriate plao. In addition, to be released from financial responsibility closure, an owner or operator must file the required notation to the deed that the land has been used as an MSWLF unit. The financial responsibility requirements are effective 30 months after the publication of today's rule to allow time for rule development and implementation. VIL Implementation of Today's Rule States and owners and operators will need to undertake a number of steps to implement today's rule. As discussed below, many of these steps, such as State program upgrades and owner or operator compliance planning, need to be initiated well before the effective date of the rule. Today's rule requires owners or operators of all new MSWLFa, lateral expansions, and existing MSWLF units, except those owned or operated by Stale or Federal government entities, to demonstrate financial responsibility for the costs of closure, post -closure care. and corrective action for known releases. Today's rule requires owners or operators of MSWLF units to demonstrate financial responsibility for closure, post -closure care, and corrective action for known releases in an amount equal to the cost of a third . party conducting these activities. The coal estimates must be updated annually for Inflation and whenever operation or A. State Activities As indicated earlier, States will play a key role in Implementing today's rule. RCRA requires States to adopt and implement within 18 months of the promulgation of this rule, a permit program or other system of prior approval to ensure that MSWLFs are in compliance with the revised Criteria. EPA is required to determine whether States have developed adequate programs. To implement the above statutory mandate, States need to move quickly to review their existing permitting program to determine where their program must be upgraded and to complete the necessary program changes, if any are needed. States should work closely with the appropriate EPA Regional Office during this process and in developing the appropriate program information fog EPA review and approval. The process and criteria EPA will use in evaluating the adequacy of State programs will be set forth in a separate rule, the "State Implementation Rule." to be issued shortly. The Agency recognizes the traditional role of States in implementing landfill standards and fully Intends that the States will maintain the lead role in implementing today's program. Therefore, EPA's goal is for all States to apply for and receive approval of their programs. Once a State Is approved by EPA. the State will implement its revised subtitle D program (or continue with their current program ifno changes were needed). As part of this effort, States will need to review and modify existing permits as necessary and incorporate the revised Criteria into new permits. Approved States may establish alternative compliance schedules for ground -water monitoring at existing landfills and approve alternative methods of compliance for selected requirements. Finally, approved States will need to conduct Inspection and enforcement activities. B. Owner or OperatorActivitfes owners or operators are responsible for compliance with today's rule by the effective date regardless of the status of the State's program. In fact, -today's rule is structured to facilitate self- - Implementation by the'owner or operator. However, if the facility is located in an approved State, the owner or operator has the opportunity for increased flexibility in complying with today's rule. As mentioned above, approved States may approve, under certain conditions, alternative compliance schedules and methods or procedures. The owner or operator should contact the State to determine the status of the State program. Owners and opefators should begin planning immediately for compliance with today's rule. A key first step is determining which requirements, if ani, will apply. Figure 1 in Section VI of . today's preamble provides a decision- making process to assist in this process. Figure 1 indicates, for example, that if your MSWLF will not receive waste after the effective date, only the final cover requirements of § 25&6o(a)(2) will apply. If the community plans to phase out its existing MSWLF, it will need to identify an alternative waste Federal Register / Vol. 56, No. 190 / Wednesday, October 9, 1991 / Rules and Regulations 51015 management arrangement for the restrictions and the design criteria, overview of today's requirements and community. apply to existing MSWLF units, Section when they will become effective. All If the MSWLF will receive waste after VI of thispreamble summarizes the requirements are effective in 24 mora s, the effective date of today's rule, all or major requirements in today's rule and except ground -water monitoring (for some of the Part 258 requirements will their applicability to various types' of existing units and lateral expansions) apply. The specific requirements - MSWLF units.- and financial responsibility. Ground- applicable to your MSWLF unit depend . Once an owner or operator has water monitoring is phased in over a on whether your MSWLF unit Is an determined which requirements will five-year period for existing MSWLF - existing unit, lateral expansion, or a new apply to her/his MSWLF unit, the owner units and lateral expansions, and MSWLF unit. All requirements apply to or operator should begin to take steps to owners and operators must comply with new units and lateral expansions; all ensure compliance by the effective date financial assurance in 30 months. requirements, excent certain location of the requirement, Figure ti provides an 'slw coon 6550 -ss -a 51014 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations H Z W W LU x 00 to � N 1m a LL LL O LLIQ LU F U W LL LL w I Q i d — LLJ I c c c c tPtU) O lL � L 0 0 r pUp c ca (Dc k (i CL Q W i ••-S gnN �� O Y AU U cc U) M c ci n.ca (n e M c cc O 'O ca.O Ul Ct LL V Ca Y .,..,'+�• J - K — O .ted.. M O V cc d O d G i _ '�_. —(n c7 d tm O �! c r (A c '�' Occ w. C G. c I — C LIJ '�" O :E O J d O N oi c4 cn❑ - E d 7 M •C dbc p c 0 p N O _ V cca ca R C J� per•, my U c rs� CL x " L C O 'c O d < N W.d 05 y CD d c: x W N d O t to w 41 U) = O c N •- r2 N .y X Z " D W N O 70 I o N4c--„ d r+ Wr i d I U c lL � 0 0 pUp 51010 Federal Register / Vol. 58, No. 196 / Wednesday, October 9, 19911/ Ritlea and Regnlatidris (7) U.S. EPA, OSWER. Report to Congress, Methods to Manage aad Control plastic VYaates. EPA/530-SW=69-051. Febm&71990. f8l U.S. EPA. OSW. Summary of nate on of the Resource Conservation and Recovery -Act (RCRA). July 1988. (draft). EPA/5304W- 86.1138, PE88-242 441. . (9) U.S. EPA, OSWER, Characterization of Municipal Solid Waste,in the United States: 1990 Update, EPA/530SW-90-042. June 1990. (10) U.S. GAO, Nonhazardous Waste: Environmental Safeguards for Industrial Facilities Need to be Developed. GAO/ RCED40-92. April 19M. XI. List of Subjects 40 CFR Part 257 Reporting and recordkeeping requirements,Waste disposal. 40 CFR Part 258 Corrective aotian, Household . hazardous waste, Liner requirements, 'Liquids in laridlills, Reporting and recordkeeping requirements, Security measures, Small quantity generators. Waste disposal, Water pollution control. Dated: September 11, IM. William K. Reilly, Administrator. For reasons set out in the preamble, title 4e of the Code of Federal - Regulations is amended as set forth . below:' PART 257 -CRITERIA FOR CLASSIFICATION OF SOLID WASTE DISPOSAL FACILITIES AND PRACTICES 1. The authority citation for part 257 is revised to read asfollows: - Authority: 42 V.S.C. 6907(a)(3), 6944(a) and 6949a(c), 33 U.S.C. 1345 (d) and (e). . 2. Section 257.11s amended by adding paragraph (c)(10) to read as follows: § 257.1 Scope and purpose. and improvements on the land used for . the disposal of solid waste.. - ' Land application unit means as area where wastes are applied'onto or , incorporated into the soil surface (excluding manure spreading . operations) for agricultural purposes or for treatment and disposal.' Landfill means an area of landor an excavation in which wastes are placed for permanent disposal, and that is not a . 'land application unit, surface - impoundment, Injection well, or waste pile. Muniaipal solid waste landfill (MSV" unit means a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms we defined in this section. A- MSWLF unit also may receive other types of RCRA Subtitle D wastes, such as commercialsolid waste, nonhazardous sludge, and industrial 'solid waste. Such a landfill may be publicly or privately owned. Ari MSWLF unit may be a new MSWLF unit, an existing MSWLF unit or a lateral expansion. Surface impoundment or impoundment means it facility or part of a facility that is's natural topographic depression, human -made excavation, or diked area formed primarily of earthern materials (although it may be lined with human -made materials), that is designed to hold an accumulation of liquid wastes or wastes containing free liquids and that is not an injection well. Examples of surface impoundments are holding storage, settling, and aeration pits, ponds, and lagoons. Waste pile or pile means any noncontainerized accumulation of solid, nonilowing waste that is used for treatment or storage. (10) The criteria,of this part do not 4. In 40 CFR part 257, Appendix I is apply to municipal solid waste landfillrevised to read as follows: -- units, which are subject to the revised - criteria contained in part 258 of this chapter. 3. Section 257.2 is amended by revising the definition for "facility" end adding definitions in alphabetical order for "land application unit," "landfill," "municipal solid waste landfill unit," "surface impoundment," and','waste pile" to read as follows: , § 257.2 Dentitions. Facility means all contiguous land and-structurea,'other appurtenances, MAXIMUM CONTAMINANT LEVELS. (MCLS) PROMULGATED UNDER THE SAFE DRINKING WATER ACT-COf)tlnued Appendix I to 40 CFR Part 257 - Maximum Contaminant Levels (MCLS) MAXIMUM CONTAMINANT LEVELS (MCLS) PROMULGATED UNDER THE SAFE DRINKING WATER ACT Chemical: I I CAS No. acetic 744047-3 I . 0.05 94-75-7 0.1 100-49-7 0.075, 107-05-z 0.005 75-35-4 0.007 75-29-e 0.0092 7 4.0 59-99-9 0.004 7439-92-1 0.05 7439-97-6 0.002' 72-43-5 0.1 10.0 778249-2 0.01 7440-22-4. 0.05 8001-35-2 0.005, 71-55-e 0.2 79-01-6 0.905 acetic sUd..:_..«....._........ 9378-5 0.0 vnN dh�� •••-____._..,...... 7s-01r4oa02o2 5,A new part 258 is added to read as follows:'-, .. PART 25S•CRITERIA FOR MUNICIPAL. SOLID WASTE LANDFILLS Subpart A -General, Sec. 258.1 'Purpose, scope, end applicability. 258.2 Definitions. 258.3 Consideration of other Federal laws.'! 258.4-258.9 [Reserved]. Subpart B�Locatlon Restrictions Sec. 258.18 Airport safety. 258.11 Floodplain. 258.12 Wetlands. , 258,13 Fault areas. 258.14 Seismic Impact zones. 25815 Unstable areae. 258.16 Closure of existing municipal solid waste landfill units. 258.17-me.19 [Reserved]. , Subpart C -Operating Criteria Sea 258.20 Procedures for excluding the receipt of hazardous waste. 258.21 Cover material requirements. 258.22 Disease vector control. 258.23 Explosive gases control. - 258.&1 Air criteria. 25825 Access requirements. - 258.28 Run-on/run-off control systems. 258.27 Surface water requirements. 256.28 .Liquids restrictions. . 258.29 Recordkeeping requirements: ' 258.30-258.39 . [Reaervedl.. Subpart D-_ Design Crherla; ..Sec. 258.40 Des 1gn'crilme. 258.41-'25&49 - [Reserved]. Chemka] CAS No. MCL (Mg/1) Arsenk_._....__._...._._..._....... 7440-38-2 0.05 barium._._..._._:..........._..:.__. 744"9-3 1:0 Benzene.....« ..............__ .... _. 71-343-2 0GQ5 Cadmium...:....„.........._.._.... 7440-A3-9 0.01 Carbon teVachlodde............. X58-23-5 0:405 Chemical: I I CAS No. acetic 744047-3 I . 0.05 94-75-7 0.1 100-49-7 0.075, 107-05-z 0.005 75-35-4 0.007 75-29-e 0.0092 7 4.0 59-99-9 0.004 7439-92-1 0.05 7439-97-6 0.002' 72-43-5 0.1 10.0 778249-2 0.01 7440-22-4. 0.05 8001-35-2 0.005, 71-55-e 0.2 79-01-6 0.905 acetic sUd..:_..«....._........ 9378-5 0.0 vnN dh�� •••-____._..,...... 7s-01r4oa02o2 5,A new part 258 is added to read as follows:'-, .. PART 25S•CRITERIA FOR MUNICIPAL. SOLID WASTE LANDFILLS Subpart A -General, Sec. 258.1 'Purpose, scope, end applicability. 258.2 Definitions. 258.3 Consideration of other Federal laws.'! 258.4-258.9 [Reserved]. Subpart B�Locatlon Restrictions Sec. 258.18 Airport safety. 258.11 Floodplain. 258.12 Wetlands. , 258,13 Fault areas. 258.14 Seismic Impact zones. 25815 Unstable areae. 258.16 Closure of existing municipal solid waste landfill units. 258.17-me.19 [Reserved]. , Subpart C -Operating Criteria Sea 258.20 Procedures for excluding the receipt of hazardous waste. 258.21 Cover material requirements. 258.22 Disease vector control. 258.23 Explosive gases control. - 258.&1 Air criteria. 25825 Access requirements. - 258.28 Run-on/run-off control systems. 258.27 Surface water requirements. 256.28 .Liquids restrictions. . 258.29 Recordkeeping requirements: ' 258.30-258.39 . [Reaervedl.. Subpart D-_ Design Crherla; ..Sec. 258.40 Des 1gn'crilme. 258.41-'25&49 - [Reserved]. Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 19% / Rules and Regulations 51015 Owners or operators should examine each of the applicable requirements to identify steps necessary to ensure compliance. First, the owner or operator should evaluate the characteristics of the landfill site to determine if it complies with the location restrictions in today's rule. Certain restrictions apply for areas near airports, floodplains, unstable areas, wetlands, seismic impact zones, and fault areas. Some operational or design modifications may be needed at existing MSWLFii or for new MSWLFs that are planned. Today's final design requirements do not apply to existing units. However, owners or operators of new MSWLF units or lateral expansions should review their design plans to ensure that they will meet the specifications of the final rule (i.e., a design that meets the performance criteria In subpart D of today's rule and Is approved by the Director of an approved State or a composite liner design). Owners or operators of MSWLFa should review the current operating Procedures (or planned procedures if a new unit or a lateral expansion) of the landfill to determine if all required operational procedures are currently being carried out at the facility. For example, the owner or operator will need to have a routine methane monitoring program in place, control disposal of liquids, and establish a Program for detecting and preventing disposal of regulated hazardous waste and PCB wastes. All of today's operating requirements are summarized in Section VI above. As part of examining and upgrading the operation of the landfill, the owner or operator will need to begin steps to establish a ground -water monitoring program at the facility or upgrade the existing monitoring program. These steps include characterizing the hydrogeology of the site, installing wells, and establishing a sampling and analysis program. As indicated to Figure 0, the date monitoring must be in place depends on the location of the landfill with respect to drinking water Intakes. Approved States may set an alternative schedule so owners and operators should contact their States for Information on the status of the State program. Owners and operators will also need to developp and have in place withta 24 months OF, and post -closure care Plans forthe landfill. These plans must describe the various activities and Procedures the owner or operator will follow in closing and carrying out post. closure care at the landfill, Finally, the owner or operator should begin early planning for implementation of the financial assurance requirements in today's rule. During the next 3o months, EPA plans to propose and finalize a special test for local governments. Therefore, owners and operators, particularly local governments, should track this effort and provide input to the Agency on the proposal. VBI. EPA Training on Floral Rule As part of the implementation program for this rule, EPA is planning to conduct technical training for owners and operators, local government, and States. This training, which will be held at several locations throughout the country, will provide guidance on interpreting the technical provisions of today's rule. This training will be based on a comprehensive technical guidance document the Agency is currently developing for this rule. EPA expects that the guidance and the training programs will be available within the next six months. Specific information regarding the dates and locations of these programs will be announced in the Federal Register in the near future. DL Paperwork Reduction Act The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The requirements are not effective until OMB approves them and a technical amendment to that effect Is published In the Federal Register. The total annual public reporting burden for this collection of information is estimated to be 204,400 hours with an average of 5o hours per response. including time for reviewing Instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden. to Chief, Information Policy Branch, PM - 223Y, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, marked "Attention: Desk Officer for BPA." X. References A. Comment Response Documents The following comment response documents have been prepared and placed In docket number F-91-CMLF- FFFFF. • US. EPA, OSW. Comment Response Document on the Proposed Solid Waste Disposal Facility Criteria-NotiiMation Requirements 140 CFR part 257) August 192L • U.S. EPA, OSW. Comment Respoma Document on the Proposed Solid Waste Disposal Facility Ctiter(a-Cencral Provisions (40 CFR part 258 -subpart A) August 129L U.S. EPA, OSW. Comment Response Document on the Proposed Solid Waste Disposal Facility Criteria-Localton Restrictions (4o CFR part 258 -subpart B) August 1991. • U.S. EPA, OSW. Comment Respomsa Document on the Proposed Solid Waste Disposal Facility Criteria-0perating Criteria • U.S. EPA, OSW. Comment Response Document on the Proposed Solid Wale Disposal Facility CrlLeria-Design Criteria 140 CFR pari 258-aubparl D) August IM, • U.S. EPA, OSW. Comment Response Document on the Proposed Solid Waste Disposal Facility Criteria--Ground-water Monitoring and Comective Action (40 CFR part 258 --subpart E) August 1e01. • U.S. EPA. OSW. Comment Response Document on the Proposed Solid Waste Disposal Facility Criteria -Closure and Post. Closure Care (40 CFR part 25B -subpart F) August 1991. • U.S. EPA, OSW. Comment Response Document on the Proposed Solid Waste Disposal Facility Criteria -Financial Assurance (40 CFR part 25s -subpart G) August 1991. B. RegulatoryImpact Anolysls • U.S. EPA, OSW, Regulatory Impact Analysts (RIA) for the Final Criteria for Municipal Solid Waste fandORa-(40 CFR pari 2581-Sub00a D of RCRA-December 1990. U.S. EPA, OSW, Addendum to RIA for the Final Criteria for Municipal Solid Waste Landfills -(4o CFR part 259) -Subtilis D of RCRA-Augustl99L • US. EPA, OSW, Comment Response Document on the Proposed Solid Waste Disposal Facility Crileria-RIA-August 1991. C Other References (1) U.S. EPA, OSWELL Report to Congmss, Solid Waste Disposal in the United State, EPA/530-SW-W-011& October 1995. (2) U.S. EPA. OSW, Survey of Solid Waste (Municipal) Landfill Facilities. August 29= (3) US. EPA, OSWFR. The Solid Wates Dilemma: An Agenda for Action. EPA/530- SW-89-019. February i9m, (4) U.S. EPA, OSWER, Derision -Makers Guide to Solid Waste Management. EPA/ 530 -SW -80-072, Novemberigw. (5) World Wildlife Fund & The Conservation Foundation, Getting at the Sourcm Strategies for Reducing Municipal Solid Waste. 1991. (e) U.S. EPA, OSW, Characterization of Products Containing Lead and Cadmium In Municipal Solid Waste In the United Slates, 1970 to 2000. EPA/530-SW-s%oi5. January, 1959. Federal Register / Vol. 56, No. 196 Subpart E--Ground-Water Monitoring and Corrective Action SEG' 258.59 Applicability.' - 253.51 Ground -water monitoring systems. - 258.52 [Reserved]. 258.53 - Ground -water sampling and analysis requirements. 258.54 Detection monitoring pmgmm- , 258.55 Assessment monitoring program. 258,56 Assessment of corrective measures. 258.57 Selection of remedy. 25358 Implementation of the corrective " .. action program. ' - ` 258.59' [Reserved]. Subpart F'Closure and.PIast-closure Care Sec. 258.66 Closure eriteria. 258.61 Post -closure can requirements, 258.62-258.69 [Reserved).` Subpart G—Financlal Assurance Criteria 258.70 Applicability and effective date. . 258.71 Financial assurance for closure: 258.72 Financial assurance for post -closure can. 258.73 Financial assurance form' mcliye action. ' 253.74 Allowable mechanisms. - Appendix I to Part 258—Constituents for Detection Monitoring . Appendix II to Part 258—List of Hazardous' . and Organic Cgristitueats' Authority: 42 U.S.C. NO7(a)(3), 6944(a) and 6949(c): 33 U.S.C. 1345 (d) and (e). Subpart A—General § 258.1 Purpose, scope, and applleabtllty. (a) The purpose of this part is to establish minimiun national Criterla . under the Resource Conservation and Recovery Act [RCRA or the Act), as. amended, for all municipal solid waste landfill [M[SWLF) units and under the ' Clean Water Act, as amended, for municipal solid waste landfills that are used to dispose of sewage sludge. These minimum national Criteria ensure the protection of human health and the environment. (b) These Criteria apply to owners and operators of new MSWLF units, existing MSWLF. units, and lateral . ..expansions, except as otherwise specifically provided in this part: all other solid waste disposal facilities and practices that are not regulated under Subtitle C of RCRA are subject to the criteria contained in part 257 of this chapter. (c) These Criteria do not apply to municipal solid waste landfill units that do not receive waste after October 9, 1991. (d) MSWLF units that receive waste after October 9, 1991 but stop receiving waste before October 9,1993 are exempt from all the requirements of this part 258, except the final cover requirement specified In § 258.60[8): The final cover 1991 / Rules and 'Regulatlons' 5201/ most be installed within six months of last receipt of wastes. Owners or . operators of MSWLF uh]ts described in Us paragraph that fail to complete cover installation within this six month "per`iod wilfEe subject to allthe ` requirements of this part 258, unless otherwise specified. (e) All MSWIY units that eceive - waste on or a er October 9y1993,must comply with all requirements of this.part 258 unless ot4arwise-specif>bad. (t)(1) Owners or operators of new MSWLF units, existing MSWLF units, and lateral expansions that dispose of 'less than twenty (20) tons of municipal ` solid waste daily, based on an annual . average are:exempt horn subparts•D and E of this part; so longus there is no "evidence of existing ground -water ' contamination from the MSWLF unit, and the MSWLF unit serves: ' (f) A community. that experiences an .annual interruption of at least three - consecutive months of surface transportation that prevents access to a regional waste management facility, or - (if) A community that has no - practicable waste management's - alternative and the landfill unit is*, located -in an area that annually receives less than or equal to 25 inches of 'precipitation., ' (2) Owners or operators of new NISWLF units, existing MSWLF units, and lateral expansions that meet the criteria in paragraph (f)(1)(i) or (f)(1)(it) - Of this section must'place in the operating record information . demonstrating (his. (3) If the owner or operator -of a new, MSWLF unit, existing MSWLF unit, or. lateral expansion has knowledge of ground -water contamination resulting from the unit that has asserted the exemption in paragraph (f)(1)(i)or (f)(1)(ii) of this section, the owner or operator must notify the State Director 'of such contamination and, thereafter, comply with subparts D and E of this part. (g) Municipal solid waste landfill units .failing to satisfy these criteria are considered open dumps for purposes of State solid waste management planning - under RCRA: (h) Municipal solid waste landfill units failing to satisfy these criteria constitute open dumps, which are prohibited under section 4005 of RCRA. (1) Municipal solid waste landfill units containing sewage sludge and failing to satisfy these Criteria violate sections 309 and 405(e) of the Clean Water Act. 0) The effective date of this part is .October 9, 1993, exceliCaubpart G of this part 253 is effective April 0, 1904. § 258.2 Definitions. Unless'-otherwisenoted all terms contained in,thl's,partare defined -by' . - their plain meaning. Th s section - - contains definitions for terms that ` appear throughout this part! additional definitions appear in the specific sections to which they apply. Active life means the period of operation beginning with the initial receipt of solid waste and ending.at completion of closure activities In accordance with,§ 258.60 of this part.* Active portion means that part of a ' facility or unit that has received or is, receiving wastes.and that has not been: .closed in accordance with .§ 258.60.of this part.. - :.: . ' . Aquifermeans a.geological forma{tori,. -: group of formations; or porton of a, formation capable of yielding significant - :quantities of ground water to wells or ' springs: .. ..- Commercial solid waste means all types of solid wastegeneratedby stores; offices, restaurants; warehouses, and other nonmanufacturingactivities, . excluding residential and industrial wastes. ..... . • Director of an approved State means the chief administrative officer of a . State agency responsible for ' implementing the State municipal solid ' waste permit.program or other system of prior approval that is deemed to be - -adequate by EPA under regulations', 'published pursuant to sections 2002 and 4005 of RCRA. - - rsxisung mz� wr,r -umr means any municipal solid waste landfill unit that is receiving solid waste as of the ' effective date of this part (October 9, 1993). Waste placement in existing units must be consistent with past operating ' practices or modified practices to ensure. good management:. Facility means all contiguous land and structures, other appurtenances, and improvements on the land used for . the disposal of solid waste. Ground water means water below the . land surface in a zone of saturation. Household waste means any solid . waste (including garbage, trash,, and sanitary waste in septic tanks) derived " from households (including single and . multiple residences, hotels and motels, - bunkhouses, ranger stations, crew .quarters, campgrounds, picnic grounds," and day -use recreation mass). - Industrial solid waste means solid waste generated by manufacturing or. industrial processes that is not a " hazardous waste regulated under - subtitle C of RCRA. Such waste may Include, but is not limited to, waste resulting from the following . manufacturing processes: Electric power 51018 Federal Register / VoL, 58, No. 198 / Wednesday, October.'9, 1991 / Rules and Regulations generation; fertilizer/agricultural chemicals; food and related praducts/ by-products; Inorganic chemicals; iron and steel manufacturing; leather and leather producta; nonferrous metals manufacturing/foundries; organic chemicals: plastics and reslna manufacturing; pulp and paper Industry, rubber and miscellaneous plastic products; stone, glees, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste. Lateral expansion means a horizontal expansion of the waste boundaries of an existing MSWLF unit. Leachate means a liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste. Municipal solid waste landfill unit means a discrete area of land or an excavation that receives household waste, and that is not a land application unit, surface impoundment, injection well, or waste pile, as those terms are defined under 1257.2. A MSWLF unit also may receive other types of RCRA sublitle D wastes, such as commercial solid waste, nonhazardous sludge, small quantity generator waste and industrial solid waste. Such a landfill may be publicly or privately owned A MSWLF unit may be a new MSWLF unit, an existing MSWLF unit or a lateral exppanslon. NewMSPVLFunttmeans any municipal solid waste landfill unit that has not received waste prior to the effective date of this part (October 9, 1093). Open burning means the combustion of solid waste without: (1) Control of combustion sit to maintain adequate temperature for efficient combustion, (2) Containment of the combustion reaction In an enclosed device to provide sufficient reaidence time and mixing for complete combustion, and (3) Control of the emission of the combustun producta, Operator means the person(s) responsible for the overall operation of a facility or part ofs. facility. Owner means the person(s) who owns a facility orpart of a facility. Run-off means any rainwater, leachate, or other liquid that drains over land from any part of a facility. Run-on means any rainwater, leachate, or other liquid that drains over land onto any part of a facility. Saturated zone means that part of the earth's crust In which all voids are filled with water. Sludge means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant. Solid waste means any garbage, or refuse, sludge from a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations; and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permit under 33 U.S.C. 1342, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (08 Stat. 923). State means any of the several States, by only piston -type aircraft must demonstrate that the units are designed and operated so that the MSWLF unit does not pose a bird hazard to aircraft. (b) Owners or operators proposing to site new MSWLF units and lateral expansions within a five -mile radius of any airport runway end used by turbojet or piston -type aircraft must notify the affected airport and the Federal Aviation Administration (FAA). (c) The owner or operator must place the demonstration to paragraph (a) of this section in the operating record and notify the State Director that it has been placed In the operating record . (d) For purposes of this section: (1) Airport means public -use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities. (2) Bird hazard means an Increase In the likelihood of bird/aircraft collisions that may cause damage to the aircraft of injury to its occupants. the District of Columbia, the § 258.11 Floodplaine. Commonwealth of puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. State Director means the chief administrative officer of the State agency responsible for implementing the State municipal solid waste permit program or other system of prior approval. Uppermost aquifer means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquiferwithin the facility's property boundary. Waste management unit boundary means a vertical surface located at the hydraulically downgradient limit of the unit. Tbis vertical surface extends down into the uppermost aquifer. §2S8.3 Consideration of other Federal laws. The owner or operator of a municipal solid waste landfill unit must comply with any other applicable Federal rules, laws, regulations, or other requirements. §§ 258.4258.9 [Reserved] Subpart B—Location Restrictions 1258.10 Akportsafety. (a) Owners or operators of new MSWLF units, existing MSWLF units, and lateral expansions that are located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used (a) Owners or operators of new MSWLF unite, existing MSWLF units, and lateral expansions located in 100 - year floodplain must demonstrate that the unit will not restrict the flow of the 100 -year flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to human health and the environment. The owner or operator must place the demonstration in the operating record and notify the State Director that it has been placed in the operating record. (b) For purposes of this section: (1) Floodplain means the lowland and relatively flat areas adjoining inland and coastal waters, Including flood -prone areae of offshore Islands, that we inundated by the 100 -year flood. (2)100 -year flood means a flood that has a 1 -percent or greater chance of recurring In any given year or a flood of a magnitude equalled or exceeded once in 100 years on the average over a significantly long period. ' _ (3) Washout means the carrying away of solid waste by waters of the base flood. § 258.12 Wetlands. (a) New MSWLF units and lateral expansions shall not be located in wetlands, unless the owner or operator can make the following demonstrations to the Director of an approved State: (1) Where applicable under section 404 of the Clean Water Act or applicable State wetlands law's, the presumption that practicable alternative to the Federal Vol. 56, No. 196 / Wednesday, proposed landfill Is available which does not involve weilanda is clearly rebutted; (2) The construction and operation of the MSWLF unit will not- . (i) Cause or contribute to violations of any applicable State water quality standard, (ii) Violate any applicable toxic effluent standard or prohibition under Section 307 of the Clean Water Act, (iii) Jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat, protected under the Endangered Species Act of 1973, and (iv) Violate any requirement under the Marine Protection, Research; and Sanctuaries Act of 1972 for the Protection of a marine sanctuary; (3) The MSWLF unit will not cause or contribute to significant degradation of wetlands. The owner or operator must demonstrate the integrity of the MSWLF unit and its ability to protect ecological resources by addressing the following factors: (i) Erosion, stability, and migration potential of native wetland soils, muds and deposits used to support the MSWLF unit; (ii) Erosion, stability, and migration potential of dredged and fill materials used to support the MSWLF unit; (iil) The volume and chemical nature of the waste managed in the MSWLF unit; (tv) Impacts on fish, wildlife, and other aquatic resources and their habitat from release of the solid waste; (v) The potential effects of catastrophic release of waste to the wetland and the resulting impacts on the environment; and (vi) Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected. (4) To the extent required under section 404 of the Clean Water Act or applicable State wetlands laws, steps have been taken to attempt to achieve no net loss of wetlands (as defined by acreage and function) by fust avoiding impacts to wetlands to the maximum extent practicable as required by paragraph (a)(1) of this section, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of man=made wetlands); and (5) Sufficient information is available to make a reasonable determination vith respect to these demonstrations. (b) For purposes of this section, wetlands means those areas that are defined in 40 CFR 2322(r). 9, 1991 / Rules and Regulations 51019 § 256.13 Fault areas: (a) New MSWLF units and lateral expansions shall not be located within 200 feet (50 meters) of a fault that has had displacement in Holocene time unless the owner or operator demonstrates to the Director of an approved -State that an alternative setback distance of less than 200 feet (00 meters) will prevent damage to the structural integrity of the MSWLF unit and will be protective of human health and the environment (b) For the purposes of this section: (1) Fault means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side: (2) Displacement means the relative movement of any two sides of a fault measuied in, any direction. (3) Holocene means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the present. 925a.14 Sefsmlc impact zones. (a) New MSWLF units and lateral expansions shall' not be located in seismic Impact zones, unless the owner or operator demonstrates to the Director of an approved State/Tribe that all contaimnent structures. Including liners, leachate collection systems, and surface water control "systems, are designed to resist the maximum horizontal acceleration in lithified earthmaterialfor the site. The owner or operator must Place the demonstration in the operating record and notify the State Director that it has been placed in the operating record. (b] For the purposes of Us section: (1) Seismic impact zone means an area with a ten percent or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth's gravitational pull paragraph (g) of this section, will exceed 0.10g in 250 years, . (2) Maximum horizontal acceleration in lithified earth material means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a 90 percent or greater probability that the acceleration will not be exceeded in 250 years, or the - maximum expected horizontal acceleration based on a site-specific seismic risk assessment (3) Lithifled earth material means all rock,. including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock that formed by crystallization of magma or by induration of loose sediments. This term does not include man-made materials, such as fill, concrete, and asphalt, or unconsolidated earth materials, soil, or regolith lying at or near the earth surface. § 259.15 Unstable areas. (a) Owners,or operators of new MSWLF units, existing MSWLF units, and lateral expansions located in an unstable area must demonstrate that engineering measures have been incorporated into the M9WLF unit's design to ensure that the integrity of the structural components of the MSWLF unit will not be disrupted. The owner or operator must place the'demonatration in the operating record and notify the State Director that it has been placed in the operating record. The owner or operator must consider the following factors, at a minimum, when determining whether an area is unstable: (1) On-site or local soil conditions that may result in significant differential settling; " (2) On-site or local, geologic or geomorphologic features; and (3) On-site or local human -made features or events (both surface and subsurface). (b) For purposes of this section: (1) Unstable area means a location that Is susceptible to natural or human - induced events or forces capable of Impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terranes. (2) Structural components means liners, leachate collection systems, final covers, run-on/run-off systems, and any other component used in the construction and operation of the MSWLF that is necessary for protection of human health and the environment. (3) Poor foundation conditions means those areas where features exist which indicate that a natural or man -induced event may result in Inadequate foundation support for the structural components of an MSWLF unit. (4) Areas susceptible to mass movement means those areas of influence (i.e., areas characterized as having an active or substantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the MSWLF unit, because of natural or man, -Induced events, results in -the downslope transport of soil and rock material by means of gravitational influence. Areas 51020 Federal Register / Vol. 58, No. 198 / Wednesday, October 9, 1991 / Ru,es and Regulations of mass movement include, but are not limited to, landslides, avalanches, debris elides and flows, soil fluction, block sliding, and rack fall. (5) Karst terrones means areas where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present In karat terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys, §2511.16 Closure of existing munlelpal solid waste landfill untie. (a) Existing MSWLF unite that cannot make the demonstration specified in § 258.10(a), pertaining to airports, § 258.11(a), pertaining to floodplafns, or § 258.15(a), pertaining to unstable areas, must close by October 9, 1990, in accordance with § 258.80 of this part and conduct post -closure activities In accordance with § 258.01 of this part. (b) The deadline for closure required by paragraph (a) of this section may be extended up to two years if the owner ce operator demonstrates to the Director of an approved Slate that: (1) There is no available alternative disposal capacity; (2) There is no Immediate threat to human health and the environment. Nota to Subpart B: Owners or operators of MSWLFs should be aware that a Slate in which their landfill Is located or Is to be located, may have adopted a stale wellhead protection program In accordance with section 1428 of the Safe Drinking Water Act. Such state wellhead protection programs may Impose additional requirements on owners or operators of MSWLFe than those set forth in this part. 1255.17-258.19 (Reserved]. Subpart C—Operating Criteria §259.20 Procedures for excluding the receipt of hazardous wants. (a) Owners or operators of all MSWLF unite must Implement a program at the facility for detecting and preventing the disposal of regulated hazardous wastes as defined in part 201 of Ibis chapter end polychlorinated blphenyls (PCB) wastes as defined in part 781 of this chapter. This program must include, at a mWmum: (1) Random Inspections of Incoming loads unless the owner or operator takes other steps to ensure that incoming loads do not contain regulated hazardous wastes or PCB wastes; (2) Records of any Inspections; (3) Training of facility personnel to recognize regulated hazardous waste and PCB wastes; and (4) Notification of State Director of authorized States under Subtitle C of RCRA or the EPA Regional Administrator if in an unauthorized State if a regulated hazardous waste or PCB waste is discovered at the facility. (b) For purposes of this section, regulated hazardous waste means a solid waste that is a hazardous waste, as defined in 40 CFR 201.3, that is not excluded from regulation as a hazardous waste under 40 CFR 201.4(b) or was not generated by a conditionally exempt small quantity generator as defined in § 281.5 of this chapter. §258.21 Cover material requirement& (a) Except as provided in paragraph (b) of this section, the owners or operators of all MSWLF units must cover disposed solid waste with six inches of earthen material at the end of each operating day, or at more frequent intervals if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging. (b) Alternative materials of an alternative thickness (other than at least six inches of earthen material) may be approved by the Director of an approved State If the owner or operator demonstrates that the alternative material and thickness control disease vectors, fires, odors, blowing litter, and scavenging without presenting a threat to human health and the environmenL [c) The Mector of an approved State may grant a temporary waiver from the requirement of paragraph (a) and (b) of this section if the owner or operator demonstrates that there are extreme seasonal climatic conditions that make meeting such requirements impractical. § 258.22 Disease vector control. (a) Owners or operators of all MSWLF units must prevent or control on-site populations of disease vectors using techniques appropriate for the protection of human health and the environment. (b) For purposes of this section, disease vectors means any rodents, flies, mosquitoes, or other animals, including insects, capable of transmitting disease to humans. § 258.23 Explosive gases control. (a) Owners or operators of all MSWLF units must ensure that: (1) The concentration of methane gas generated by the facility does not exceed 25 percent of the lower explosive limit for methane in facility structures (excluding gas control or recovery system components); and (2) The concentration of methane gas does not exceed the lower explosive limit for methane at the facility property boundary. (b) Owners or operators of all MSWLF units must implement a routine methane monitoring program to ensure that the standards of paragraph (a) of thin section are met. (1) The type and frequency of monitoring must be determined based . on the following factors: (f) Sail conditions; (ii) The hydrogeologic conditions surrounding the facility; (III) The surrounding the nulic e facility, and (iv) The location of facility structures and property boundaries. (2) The minimum frequency of monitoring shall be quarterly. (c) If methane gas levels exceeding the limits specified in paragraph (a) of this section are detected, the owner or operator must: (1) Immediately take all necessary steps to ensure protection of human health and notify the State Director, [2) Within seven days of detection, place in the operating record the methane gas levels detected and a description of the steps taken to protect human health; and (3) Within 80 days of detection, implement a remediation plan for the methane gas releases, place a copy of the plan in the operating record, and notify the State Director that the plan has been implemented. The plan shall describe the nature and extent of the problem and the proposed remedy. (4) The Director of an approved State may establish alternative schedules for demonstrating compliance with paragraphs (c) (2) and (3) of this section. (d) For purposes of this section, lower explosive limit means the lowest percent by volume of a mixture of explosive gases in air that will propagate a flame at 25C and atmospheric pressure. §258.24 Alr erlted& (a) Owners or operators of all MSWLFs must ensure that the units not violate any applicable requirements developed under a State Implementation,; Plan (SIP) approved or promulgated by the Administrator pursuant to section 110 of the Clean Air Act, as amended. (b) Open burning of solid waste, except for the infrequent burning of agricultural wastes, silvicultural wastes, landclearing debris, diseased trees, or debris from emergency cleanup operations, is prohibited at all MSWLv units. . .. .. . . Federal stet/ Vol. 56, No. .196 § 259.23 •Aceess requirements, . (3) The waste is household waste. . Owners or operators of ell MSWLF (c) For purposes of this section: units must control public apcess and ' Prevent unauthorized vehicular traffic (1) Liquid waste meads any waste and illegal dumping of wastes by using Material that) ,determined contain artificial barrier s,natural barriers, or 'tree liquids" as defined by tethod 9095 both, as appropriate to. protect human (Paint Filter liquids Test), as described - health and the environmteaf,- m , Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods' § 258.25 Run-on/run-oft control systems. (EPA, Pub. No. SW -846). (a) Owners or operators of all MSWLF (2) Gas candensate means the liquid units must design, construct, and generated as a result of gas recovery maintain: I process(es) at the MSWLF unit. ' (1) A run-on control system to prevent flow onto the active portion of the § 258.29 Recordkeeping requirements, landfill during the peek discharge from a (a) The owner or operator of a 25 -year storm; - MSWLF tmitmust record and retain (2] A run-off f the l system from the near the facility in an operating record active portion le the landfill to collect or In an alternative location approved and control m least the water volume by the Director of an approved State the . resulting -off a m hour, Live p r storm, following information as it becomes (b) Run-off from the active portion of the landfill unit must be handled in available: accordance with § 258.27(a) of this part (1) Any location restriction - demo part; n required under subpart B 6258.27 Surface water requirements. of this part; � - MSWLF units shall not: - (2) Inspection records, training (a) Cause a discharge of pollutants procedures, and notification procedures into waters of the United States, required In § 258.20 of this part, including wetlands, that violates any Og requirements of the Clean Water Act,- Gas monitoring results from including, but not limited to, the monitoring and any remediation plans National Pollutant Discharge required by § 258.23 of this part; Elimination System (NPDES) (4) Any MSWLF unit design ' requirements, pursuant to section 40?_ documentation for placement of (b) Cause the discharge of a nonpoint leachate or gas condensate,in a MSWLF .source of pollution to waters of the unit as required under § 258.28(a)(2) of United States, including wetlands, that this part; - violates any requirement of an area- (5) Any demonstration, certification, wide or State-wide water quality finding, monitoring, testing, or analytical management plan that has been data required by subpart E of this part;. approved under section 208 or 319 of the (6) Closure and post -closure care Clean Water Act, as amended. plans and any monitoring, testing, or § 258.23 Oqukls restrictions, - analytical data asrequiredby § § 258Ao (a) Bulk or noncontainerized liquid and 256.61 of this part; and waste may not be placed in MSWLF (7) Any cost estimates and financial units unless: assurance documentation required by [i] The waste is household waste subpart G of this part other than septic waste; or (8) Any information demonstrating (2) The waste is leachate or gas compliance with small community condensate derived from the MSWLF exemption as required by § 258.1(f)(2). unit and the MSWLF unit, whether Itis a new or existing MSWLF, or lateral (b) The owner/operator must notify expansion. fState Director when the documents P a, is designed with a composite from paragraph (a) of this aection•have liner and leachate collection system as been placed or added to the operating described in § 258.40(a)(2) of this part record, and all information contained in The owner or, operator must place the ,the operating record must be famished demonstration In the operating record- - upon request to the State Director or be and notify the State Director that it has made available at all reasonable times been placed in the operating record. (b) Containers holding -liquid waste for Inspeciion by the State Director. may not be placed in aMSWLF unit (c) The Director of an approved State . unless: • _ i i r . - •... „ can as, alternative schedules for . (1) The container is a small container recordkeeping and notification similar in size to that normally found in requirements as specified In paragraphs household waste;. (a) -and (b) of this section. excepf.for the . (2) The container is designed to hold notification requirements in § 255.10(b) liquids for use other than storage; or • and '§ 25a.55(g)(i](iiij. 9, 1991 / Rules and Regulations 51021 § 258.30-258.39: [Reserved].' Subpart 01—Design Criteria § 258.48 Design criteria.., (a) New MSWLF units and lateral expansions shall be constructed: (I) In accordance with a design approved by the Director of an approved State or as specified in § 258.40(e) for unapproved States. The design must ensure that the concentration values listed in Table 1 of this section will not be exceeded in the uppermost aquifer at the relevant point of compliance, as specified by the Director of an approved State under paragraph (d) of this section, or . (2) With a composite liner, as defined in paragraph (b) of.this section and a . leachate collection system that is designed and constructed to maintain less than a 3acm depth of leachate'over the liner. (b) For purposes of this section, Composite liner means a system consisting of two components; the upper component must consist of a minimum 30 -mil flexible membrane liner (FML), and the lower component must consist of at least a two -foot layer of compacted soil with a hydraulic conductivity of no more than 1X10-' cm/sec. FML - components consisting of high density polyethylene,(HDPE) shall be at least 60 -mil thick The FML component must be installed in direct and uniform contact with the compacted soil component. - (c) When approving a design that complies with paragraph (a)(1) of this section, the Director of an approved State shall consider at least the following factors: - (1) The hydrogeologic characteristics of the facility and surrounding land- (21 and n) The climatic factors of the area; ed - (31 The volume and physical and chemical characteristics of the leachate. (d) The relevant point of compliance specified by the Director of an ;approved State shall be no more than 150 meters from the waste management unit boundary and shall be located on land owned by the owner of the MSWLF unit. In determining the relevant point of compliance State Director shall consider at )east the following -factors: . (1) The hydrogeologic characteristics of the facilityand surrounding land (2) The volume and physical and chemical characteristics of the leachate; (9) The quantity, quality, and direction, of now of ground water, (4) The proximity and withdrawal rate of the.ground-water users: 51022 Federal / Vol. 58, No. 196 / Wednesday, October. 9, 1991 / Rules and (5) The availability of alternative drinking water supplies; (5) The existing quality of the ground water, including other sources of contamination and their cumulative impacts on the ground water, and whether the ground water is currently used or reasonably expected to be used for drinking water, (7) Public health, safety, and welfare effects; and (8) Practicable capability of the owner ar. operator. (e1 if EPA does not promulgate anile establishing the procedures and requirements for State compliance with RCRA section 4005(c)(1](B) by October 0, 19113, owners and operators in unapproved Slates may utilize a design meeting the performance standard in § 258A0(a)(1) if the following conditions are met: (1) The Stale determines the design meets the performance standard in § 258.40(¢)(1); (2) The State petitions EPA to review its determination and (3) EPA approves the State determination or does not disapprove the determination within 30 days. Note to subpart D: 40 CFR part 239 Is reserved to establish the procedures and requirements far Slate compliance with RCRA section 4005(c)(1)(B). TAetE 1 OAS 1.0 0.005 0.01 0.005 0.05 0.1 0.075 0,005 0.007 ! 0.0002 4 0.004 0.05 0.002 &I o.oi 0,05 o.00s 0.2 0.005 0.01 0.002 Subpart E—Ground-Water Monitoring and Corrective Action 1258.50 Applicability - (a) The requirements in this part ap to MS4YLF units, except as provided' paragraph (b) of this section (b) Ground -water monitoring requirements under § 258.51 through 1258.55 of this part may be suspended by the Director of an approved State for e MSwLF unit if the owner or operator can demonstrate that there is no potential for migration of hazardous constituents from that MSWLF unit to the uppermost aquifer (as defined in ' § 258.2) during the active life of the unit and the post -closure care period. This demonstration must be certified by a qualified ground -water scientist and approved by the Director of an approved State, and must be based upon: (1) Site-specific field collected measurements, sampling, and analysis of physical, chemical, and biological processes affecting contaminant fate and transport, and (2) Contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human health and environment. (c) Owners and operators of MSWLF units most comply with the'ground- water monitoring requirements of this part according to the following schedule unless an alternative schedule is specified under paragraph (d) of this section: [1) Existing IVISWLF units and lateral expansions less than one mile from a deinking water intake (surface or subsurface) must be in compliance with the ground -water monitoring requirements specified in $$ 258.51- 258.55 by October 9,1998; (2) Existing MSwLF units and lateral expansions greater than one mile but less than two miles from a drinking water Intake (surface or subsurface) must be in compliance with the ground- water monitoring requirements specific in § § 258.51-258.55 by October 9, 1995; (3) Existing MSWLF units and lateral expansions greater than two miles from a drinking water Intake (surface or subsurface) must be in compliance with the ground -water monitoring requirements specified in §1 258.51- 258.55 by October 9. 1996. (4) New MSWLF units must be in compliance with the ground -water monitoring requirements specified in § § 258.51-258.55 before waste can be placed in the unit. (d) The Director of an approved Stat may specify an alternative schedule fo the owners or operators of existing MSWLF units and lateral expansions t comply with the ground -water monitoring requirements specified n § § 258.51-258.55. This schedule must ensurethat 59 percent of all existing MSWLF units are in compliance by. ply October 9. 1994 and all existing MSW m units are in compliance by October 9,. 1996. In setting the compliance schedo the Director of an approved State must consider potential risks posed by the' unit to human health and the environment. The following factor`s . should be considered in determining potential risk (1) Proximity of human and environmental receptors; (2) Design of the MSWLF unit; (3) Age of the MSWLF unit; (4) The size of the MSWLF unit; and (5) Types and quantities of wastes disposed including sewage sludge; and (5) Resource value of the underlying aquifer, including: (t) Current and future uses; (it) proximity and withdrawal rate of users; and (iii) Ground -water quality and quantity. (e) Once established at a MSWLF unit, ground -water monitoring shall be conducted throughout the active life and poet -closure care period of that MSWLF unit as specified In § 258.51. (f) For the purposes of this subpart, a qualffied ground -water satendst is a scientist Or engineer who has received s baccalaureate or poet -graduate degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by State registration, professional Certifications, or , completion of accredited university programs that enable that individual to make sound professional judgements regarding ground -water monitoring contaminant fate and transport, and correctiveaction (g) The Director of an approved State d may establish alternative schedules for demonstrating compliance with § 258.51(d)(2), pertaining to notification of placement of certification in operating record; § 258.54(c)(1), pertaining to notification that statistically significant increase (SSI) notice is in operating record; § 258.54(c) (2) and (3), pertaining to an assessment monitoring program; § 258.55(b), pertaining to sampling and analyzing Appendix 11 constituents; § 258.55(d)(1), pertaining to placement of notice (AppendixD constituents detected) in record and notification of State notice in record; § 258.55(d)(2), r pertaining to sampling for appendix I and if to this part; $ 258.55(g), pertaining o to notification [and placement of notice" in record) of SSI above ground -water protection standard; §§ 258.55(g)(1)(iv) and 258.55(a), pertaining to assessment of corrective measures; § 258.57(6), pertaining to selection of remedy and LF notification of placement in record; § 258.56(c)(4), pertaining (o notification le, of placementin record (alterrialive . . Federal. Register /Vol. 56, No. 196 _/,Wednesday, October 9, 1991 / Rules and Regulations 51023 • corrective action measures); and. ' (1) Number, spacing, and. orientation are designed to ensure monitoring. § 258.58(f) pertaining to notification of . of the MSWfY nails; -' results that provide ori accurate • placement in record (certification of (2) idydrogeologic setting; ,--representation of ground=water duality remedy completed). _ 13) Srte histcry; at thebackground and downgradient 258.51" Ground -water monitoring . ayatems. (4). Emgineeiliig design of the MSWLF units, and wells installed in compliance With '§ 258.51(a) of this part. The owner or _ ,. ,. a O A ground -water monitoring system (5) Type of waste acceptedat the - - operator must notify the State Director must be installed that consists of a sufficient number of wells, installed at MSWLF units, (c) Monitoring wells must be cased in that the sampling and analysis program documentation has been laced in the p appropriate hoiden a anddepom to ' yyield ground -water samples from the � a manner that maintains the integrity of she monitoringwell bore hole. This operating record and the program must P g P og � include proceduresend techniques fpr: uppermost aquifer (as defined in 1258.2) That: casing trust be screened or perforated end packed with gravel or said, where (1) Sample collection; 2 le O Sample preservation and shipment; ' (1)Representthe�qualityof ' background ground water that -bas not necessary, to enable collection of Found -water samples. The annular 3 Analytical Oprocedures; (4).Chain of custody. control; and " been affected by from aniL A space (i.e., the space between the bore hole and well casing) above the (5) Quality assurance and quality determination of background quality may include sampling of wells that are sampling depth must be sealed to control. .. (b) The ground -water monitoring not hydraulically upgradient of the _ prevent contamination of samples and the ground water. program must include sampling and waste management area where: (1) Hydrogeologic conditions do not (1) The owner or operator must notify analytical methods that are appropriate , for ground -water sampling and that allow the owner or operator to ' the State Director that the design, accurately measure hazardous ' determine what wells are hydraulically installation, development, and constituents and other monitoring . - upgradient: or '. decommission of any monitoring wells, parameters in ground -water samples: ..(it) Sampling at other wells will. piezometers and other measurement, Ground -water samplesshall not be :- provide an indication of background . sampling, and analytical devices ' field -filtered prior to laboratory • ground -water quality, that ises _ documentation has been placed in the analysis. representative or more re resenta$ve than that provided by the upgradient operating record; and (2) The monitoring wells, piezometers, (c) The sampling procedures and frequency of human wells; and - - and other measurement, sampling, and vprotective .health and the environment the en (2) Represent the quality of ground., analytical devices on. be operated'and . (d) Ground -water elevations must be . • water passing the relevantpoint of maintained so that they perform to measured in each well immediately compliance specified by Director of an design specifications throughout the life prior to purging, each time ground water approved State under §.258.40(d) or at of the monitoring program. is sampled. The owner or operator must the waste management unit boundary in (d) The number, spacing, and depths determine the rate -and direction of .anapproved States. The downgradlent of monitoring systems shall be: ground -water flow each time ground monitorin s stem must be installed et g Y ' (1) Determined based upon site- ' water is sampled. Ground -water. the relevant point of compliance specified by the Director of an approved specific P fic technical Information that must include thorough characterization of -same elevations in wells whichmoretor the waste managemenfarea must be State under § 256.40(d) or at the waste management unit boundary m - (f) Aquifer thickness, ground -water - flow rate, ground -water flow direction measured within a period of time short enough to avoid temporal variations in unapproved States that ensures PP detection of ground -water including seasonal and temporal fluctuations in ground -water flow; and ground -water flow which could preclude accurate determination of ground -water contamination in the uppermost aquifer. When physical obstacles pre'c)pde (it) Saturated and unsaturated geologic units and fill materials.' flow rate and direction. - installation of ground -water monitoring overlying the uppermost aquifer, (e) The owner or operator must _ . establish background ground -ureter' wells at the relevantpohit of compliance at existing units, the down -gradient materials comprising the uppermost aquifer, and materials comprising the quality in a hydraulically upgradient or background well(s) for each of the . monitoring system may be installed at the closestpracticable distance confining unit defining We lower boundary of the uppermost aquifer, monitoring parameters or constituents _ hydraulically down -gradient from the inekudfng, but not limited to: required in the particular ground -water monitoring program that applies to the relevant point of compliance specified' - by the Director of an approved State Thicknesses, stratigraphy, lithology, ' hydraulic conductivities, porosities and MSWLF unit, as determined under § 258.54(a) or § 258.55(a) of Us part. under § 258.40 that ensure detection of groundwater contamination in the effective porosities. I (2) Certified by a qualified ground- - Background ground=water quality may be established at wells that are not uppermost aquifer.. (b) The Director of an approved State water scientist or approved by the Director of an approved State. Within 14 located hydraulically upgradient from the MSWLF unit if it meets the may approve a multiunit ground -water days of this certification, the owner or • requirements of §258.51(8)(1). monitoring system instead of separate ground -water monitoring systems for operator must notify the State Director - that the certification has been placed in M The number of samples collected to establish ground -water quality data ` each MSWLF unit when the facility has the operating record. must be consistent with the appropriate several units, provided the multi -unit ground -water monitoring system meets § 258.52 [Reserved]. statistical procedures determined the requirement of § 258.51(a) and will § 258.53 Groundwater sampling and pursuant to paragraph (g) of this section. The sampling procedures shall be those be as protective of human health and the environment as'individual analysis requirements. I (a) The ground -water monitoring specified under § 258.54(6) for detection f monitoring, 1258.55 (b) and (d) for monitoring systems for each MSWLF unit, based on the folldwmg factors: program must include consistent sampling and analysis procedures that assessment monitoring, and § 258.56(6) of corrective action. §11124 _ Federal Register / Vol. 58, No. 190 % Wednesday, October 9, 1991 / Rules and Regulations. - fsl The owner or operator most be done at a Type I error level no less that constituent, according to the - epeclfy in the operating record one of ' -the following be than 0.01 for each testing period. If a statistical procedures and performance statistical methods to multiple comparisons procedure Is used, standards specified under paragraphs .t used In evaluating ground -water the Type I experiment wise error rate for (g) and (h) of this section. -, .;,monitoring data for each hazardous each testing period shall be no less than:` (2) Within a reasonable period of time - conslituent The statistical test chosen 0.05; however,,,the Type I error of no less after completing sampling and analysis, shall be conducted separately for each than 0.01 for fndivtdual well the owner or operator must determine - hazardous constituent in each well.comparisons must be maintained. This whether there has been a statistically (1) A parametric analysis of variance (ANOVA) followed by multiple performance standard does not apply to tolerance intervals, intervals, significant increase over background at (e] If necessary, the statistical method prediction each monitoring well. comparisons procedures to identify or control charts. evaluate ground -water monitoring data statistically significant evidence of (3) If a control chart approach is used $ 258.54 Detection monitoring program. contemingtign. The method must to evaluate ground -water monitoring (a) Detection monitoring is required at Include es6malion end •tes4m of the -treats • data�}t re s'peciFc type of control chart MSWLF units at all ground -water " con belween each compliance and Its associated parameter values monitoring wells defined under - -^' well's mean and the background mean shall be protective of human health and $ $ 258.51 (a)(1) and (a)(2] of this part. At ' - levels for each constituent, the env(ionment The parameters shall a minimum, a detection monitoring .- . (2) An analysis of variance (ANOVA) be determined after considering the program must. include the monitoring for based on ranks followed by multiple number of samples in the background' the constituents listed in appendix to comparisons procedures to identify statietically significant evidence database, the data distribution, and the the for this part. of range of concentration values (1) The Director of an approved State contamination. The method most each constituent of concern. may delete any of the appendix I ' tgclade estimation and testing of the contrasts between each compliance (4) If a tolerance interval or a predictional interval is used to evaluate 'monitoring parameters fur a MSWLF unit if it can be shown that the removed well's median and the.background ground -water monitoring data, the levels constituents are not reasonably " - median levels for each constituent of confidence and,, for tolerance expected to be in or derived from the (3) A tolerance or prediction interval intervals, the percentage of the waste contained in the unit. procedure in which an interval for each population that the interval must (2) The Director of an approved State constituent is established from the contain, shall be protective of human may establish an alternative list of distribution of the background data, and " health and the. environment These inorganic indicator parameters for a the level of each constituent inn each parameters shall be determined after MSWLF unit, in lieu of some or all of the compliance well is compared to the considering the number of samples fn heavy metals (conatituents 1 15 in ' • upper tolerance or prediction limit the background data base, the data appendix I to this part), if the alternative (4) A control chart approach that gives distribution, and the range of the parameters provide a reliable indication control limits for each constituent._. _ - (5) Annthec atatisticai (eat method , copcen4agop.ynluzs for eacl}„ -,., , - _ . constituent of concern. of inorganic releases from the MSWLF that meets the performance standards of - i 25b.63(h). The owner or operator must (5) The statistical method shall account for data below the limit of unit to the ground water. In determining alternative parameters, the Director place a justification for this alternative detection with one or more statistical shall consider the following factors: al The types, a follows and .-' In the operating record and notify the Stain Di{eclor of the use, of thio procedures that are protective of human end the environment Any concentrations of constituents In wastes atalletnellv_e lest The justification must ._treis that the alternative method ,health practical quantitation limit [pql) that is used in the statistical method shall be managed at the MSWLF omit; (11) The mobility, stability, and meets the performance standards of the lowest concentration level that can persistence of waste constituents or $ 268,53(h), (h) Amy statistical method chosen be reliably achieved within specified Limits of precision and accuracy during their reaction products in the unsaturated zone -beneath the MSWLF under $-258,63(8) shall comply with the following performance standards, as routine laboratory operating conditions that are available to the facility. unit (III) The detectability offndicator ep ruprfate: (e] If necessary, the statistical method parameters, waste constituents, and iThe statistical method used Eo 'In shell Include procedures to control or reaction products ht the ground wafer, evaluate ground -water monitoring data cored for seasonal end spatial and ' shell ba eppropttala for the distribution chemical hazardous variability as well as temporal (iv) The concentration or values and , of parameters or correlation in the data. coefficients of variation of monitoring constituents. if the distribution of the (I) The owner or operator must parameters or constituents In the chemical parameters or hazardous determine whether or not there fs a groundwater background. consflluenfs Is shown. by the owner or statistically significant increase over (b) The monitoring frequency for all operator to be Inappropriate for a background values for each parameter constituents listed in appendbcI to this normal theory test. then the data should or constituent required in the particular part,. or In the alternative list approved be transformed or a distribution -free ground -water monitoring program that in accordance with paragraph (a)(2) of theory test should be used. If the applies to the MSWLF unit, as this section, shall be at least semiannual distributions for the constituents differ, determined under $ $ 258,54(a) or during the active life of the facility - more than one statistical method may be 259.55(a) of thio part. (including closure) and the post -closure needed. (1) In determining whether a period. A minimum of four independent - (2] If an individual well comparison statistically significant Increase has samples from each well (background procedure Is used to compare an ' occurred, the owner or operator must and downgradient) must be collected Individual compliance well constituent compare the ground -water quality of and analyzed for the appendix I concentration with background each parameter or constituent at each constituents, or the alternative list conatitusn(poncentrations or is ground- monitoring well designated pursuant to approved in accordance with paragraph water protection standard; the test shall $ 258.51(a)(2) to the background value of (a)(2) of this section, during the first Vol. 56. No. 196 J Wednesday, October.9. 1994 I Rules -and Regulations 616:5 semiannual sampling event. At least one sample from each well (backgroundand downgradientj must be collected and analyzed doting subsequent semiannual, sampling events. The Director of an .'approved State may specify art appropriate alternative fiequency far repeated sampling and,analysis for appendix I constituents, or the alternative list approved in accordance with paragraph (a)(2) of this section, , during the active life (including closure} and the post -closure cars period. The alternative frequency during the active life (including closure) shall be no less than annual. The alternative frequency shall be based on consideration of the following factors: [1) Uthology ofthe aquiferand unsaturated zone; (2) Hydraulic conductivity, of the "aquifer and unsaturated zone; •(3) Groand-water flow rates, 14) Minimum distance between upgradient edge of the MSWI.F unit end downgradient monitoringwell screen (minimum distance of travel); and', (5) Resource value of the aquifer. (cl If the owner or operator determines, pursuant to § 258.53(g) of - thispart, that there is a statistically. significant increase over background for one or more of the constituents listed in . appendix Ito this part or in the v, alternative list approved in accordance with paragraph (a)(2) of this section, at .any, monitoring well at the boundary specified under § 258.51(a)(2), the owner or operatoc (1) Must, within 14 days of this .finding. place a notice in the operating record indicating which constituents have shown statistically significant. changes from background levels. and. notify the State director that this notice was placed in the operating record: and • (2] Must establish an assessment monitoring program meeting the requirements of f 258.55 of this part ivIthin 90 days except as provided for in paragraph (c)(3] of this sectiom (3) Thso erloperatormay demonstrate ate source other than a MSWLF unit caused the contamination or that the statistically significant increase resulted from errorin sampling, analysis, statistical evaluation, or, natural variation in ground -water quality. A report documenting this demonstration must he certified by a qualified ground -water scientist or approved by the Director of an approved State and be placed In the operating record. If a successful demonstration is made and documented, the owner or operator may continue detection ' monitoring as specified in this section. If, afler90 days, a successful demonstration Isnot made, the owner or operatoc must initiate an'assessment mouflaring program as required in § 258.55.' 9258-55 AssessirrentmottHoring:program_ (a) Assessment monitoring is required whenever a statistically significant increase over background hasbeen detected for one ormare of the ' constituents listed in the appendix t to this part or in the at list approved in accordance with- § 258.54(a)(2). (b) Within go days of triggering an assessment monitoring program, and annually thereafter, the owner or _ operator must sample and analyze the ground water for all constituents identified in appendix It to this part. A . minimum of one sample from, each w dowrgradientell must becollected ' and analyzed during each sampling .event. For any constituent detected in the downgradient wells as a result of the complete appendix D analysis, a minimum of four independent samples. from each well (background and dowhgradient) must be collected and analyzed to establish background for the constituents, The Director of an approved State may specify an ,: appropriate subset of wells tube .sampled and analyzed for appendix a constituents during assessment monitoring. The Director of an approved State may delete any of the appendix II monitoring parameters for a MSWEF. unit if it can be shown that the removed constituents are notreasonably. expected to be in or derived from the wasje contained in the unit' (e) The Director of anapproved State may specify an appropriate alternate frequency for repeated sampling and . analysis for the full set of appendix fl'. constituents required by § 258.sgb]. o€ this part, during the active life, (including closure) and post -closure care of the unit considering the following factors:. (1) I3thology of the aquifer and unsaturated zone: (2) Hydraulic' conductivity of the aquifer and unsaturated zone: (3) Ground-waterflow rates; - (4)Minimum distance between upgradient edge of the MSWLF'unit and downgradient' monitoring well screen (minimum distance of travel); - (5) Resource value of the aquifer, and '(8} Nature (fate and transport) of any constituents detected in response to this section. (d) Ater obtaining the results from the initial or subsequent sampling eventa . required in paragraph (VI of this section, the owner or operator must: [1) Within 14 days, place a notice in the operating record identifying the appendix If constituents that have been detected and notify the State Director that this notice has -been placed in the . operating record; (2) Within 90 days, and on at least a semiannual basis thereafter, resample all wells specified by $ 25&51(a), conduct analyses foralt constituents to appendix f to this part or in the alternative list approved in accordance' With § 258.54(a)(2), and for those constituents in appendix If to this part that are detected in response to paragraph (b) of this section, and record their concentrations in the facility operating record. At least one sample " from each weft (background and downgradfentj must be collected and analyzed during these sampling events. The Director of an approved State may specify an alternative monitoring frequency during the active life (including closure) and the post -closure period for the constituents referred to in this paragraph. The alternative frequency for appendix constituents. or the altamativelist approved in accordance with 12585](a)(21,, during. . theactive life (including closure) shall - be no less than annuaE T7ie alternative frequency shall be based on , consideration of the -factors specified, in paragraph (c) of this section: . (3) Establish background. concentrations forany constituents detectedpursuant to paragraph (b) or (d)(2) of this section; and - . (4) Establish ground -water standards for all constituents detected pursuant to paragraph (hl or (d) of this seclion.The ground -water protection standards shall be established in accordance with paragraphs (h) or (F) of this section. _ (e) If the concentrations of all appendixII constituents are shown to be at or below background values, using the statistical procedures in § 258.53[g), for two consecutive sampling events, the owner oroperatormust notify the State Director of this finding andmay return to detection.mmutoring.. - (f)Ifthe concentrations ofany . _ appendix 11 constimentsare above _ background values, but all concentrations are below the ground- water protection standard established under paragraphs (h) or (f) of this section, using the statistical procedures in § 258-53[g), the owner or operator must continue assessment monitoring in accordance with this section. (g} If one or more appendix Il constituents are detected at statistically significant levels above the ground- water protection standardestablished under paragraphs (h) or of this section in any sampling event, the. 'owner or operator must, within 14 days 51026 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1591 / Rules and Regulations, . of this finding, place a notice in the operating record Identifying the appendix II constituents that have exceeded the ground -water protection standard and notify the State Director and all appropriate local government officials that the notice has been placed In the operating record. The owner or operator also: (1)(1) Must characterize the nature and extent of the release by installing additional monitoring wells as necessary; (11) Must install at least one additional monitoring well at the facility boundary In the direction of contaminant migration and sample this well in accordance with § 258.55(d)(2); (ill) Must notify all persons who own the land or reside on the land that directly overlies any pert of the plume of contamination if contaminants have migrated off-site if indicated by sampling of wells in accordance with § 258.55 (g)(1); and (iv) Must Initiate an assessment of corrective measures as required by 1255.56 of this part within 90 days; or (2) May demonstrate that a source other than a MSWLF unit caused the contamination, or that the SSI increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in ground -water quality. A report documenting this demonstration must be certified by a qualified ground -water scientist or approved by the Director of an approved Slate and placed in the operating record. If a successful demonstration is made the owner or operator must continue monitoring in accordance with the assessment monitoring program pursuant to § 258.55, and may return to detection monitoring if the appendix It constituents are at or below background as specified In § 258.55(e). Until a successful demonstration is made, the owner or operator must comply with § 258.55(g) including Initiating an assessment of corrective measures. (h) The owner or operator must establish a ground -water protection standard for each appendix B constituent detected in the ground- water. The ground -water protection standard shall bet (1) For constituents for which a maximum contaminant level (MCL) has been promulgated under section 1412 of the Safe Drinking Water Act (codified) under 49 CFR part 141, the MCL for that constituent; (2) For constituents for which MCLs have not been promulgated, the background concentration for the constituent established from wells in accordance with § 258.51(a)(1); or (3) For constituents for which the background level is higher than the MCL identified under paragraph (h)(1) of this section or health based levels identified under § 258.55(1)(1), the background concentration. (t) The Director of an approved State may establish an alternative ground- water protection standard for constituents for which MCLs have not been established. These ground -water protection standards shall be appropriate health based levels that satisfy the following criteria: (1) The level is derived in a manner consistent with Agency guidelines for assessing the health risks of environmental pollutants (51 FR 33992, 34006, 34014, 34028, Sept. 24,1986); (2) The level is based on scientifically valid studies conducted in accordance with the Toxic Substances Control Act Good Laboratory practice Standards '[40 CFR part 7921 or equivalent (3) For carcinogens, the level represents a concentration associated, with an excess lifetime cancer risk level (due to continuous lifetime exposure) with the 1X10" to SX1o'6range; and (4) For systemic toxicants, the level represents a concentration to which the human population (including sensitive subgroups) could be exposed to on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime. For purposes of this subpart, systemic toxicants include toxic chemicals that cause effects other than cancer or mutation. (j) In establishing ground -water protection standards under paragraph (f) of this section, the Director of an approved State may consider the . following: (1) Multiple contaminants in the groundwater, (2) Exposure threats to sensitive environmental receptors; and (3) Other site-specific exposure or potential exposure to ground water. § 258.56 Assessment of corrective measures. (a) Within 90 days of finding that any of the constituents listed in appendix II to this part have been detected at a statistically significant level exceeding the ground -water protection standards defined uhdei § 258.55 (h) or (i) of this part, the owner or operator must initiate' an assessment of corrective measures. Such an assessment must be completed. within a reasonable period of time. (b) The owner or operator must continue to monitor in accordance with the assessment monitoring program as specified in § 258.55. (c) The assessment shall include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy as described under § 258.57, addressing at least the following: (1) The performance, reliability, ease of implementation, and potential impacts of appropriate potential remedies, including safety impacts, cross -media impacts, and control of exposure to any residual contamination; (2) The time required to begin and complete the remedy; (3) The costs of remedy implementation; and (4) The institutional requirements such as State or local permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedy(s). (d) The owner or operator most discuss the results of the corrective measures assessment, prior to the selection of remedy, in a public meeting with interested and affected parties. § 258.57 Selection of remedy. (a) Based on the results of the corrective measures assessment conducted under § 258.58, the owner or operator must select a remedy that, at a minimum, meets the standards listed in paragraph (b) of this section. The owner or operator must notify the State. Director, within 14 days of selecting a remedy, a report describing the selected remedy has been placed in the operating record and how it meets the standards in paragraph (b) of this section. (b) Remedies must: (1) Be protective of human health and the environment (2) Attain the ground -water protection standard as specified pursuant to § § 258.55 (h) or (i); (3) Control the source[s) of releases so as to reduce or eliminate, to the maximum extent practicable, further releases of appendix B constituents into the environment that may pose a threat to human health or the environment; and (4) Comply with standards for management of wastes as specified in § 258.58(d). (c) In selecting a remedy that meets the standards of § 258.57(b), the owner or operator shall consider the following evaluation factors: (1) The long- and short-term effectiveness and protectiveness of the potential remedy(s), along with the . degree of certainty that the remedy will prove successful hased on consideration of the following:. (t) Magnitude of reduction of existing risks; (ff) Magnitude of residual risks in terms of likelihood of further releases Federal Register C Vol. 58, No. 196 due to waste remaining following implementation of a remedy; (iii) The type and degree of long-term management required, including monitoring, operation, and maintenance; (iv) Short-term risks that might be posed to the community, workers, or the environment during implementation of such'a remedy, including potential - threats to human health and the - environment associated with .excavation, transportation, and redisposal of containment, (v) Time until full protection is achieved; . . . (v2) Potential for exposure of humans and environmental receptors to remaining wastes, considering the potential threat to human health and the environment associated with excavation, transportation, redisposal, or containment; (vii) Long-term reliability of the - engineering and institutional controls; and (viii) Potential need for replacement of the remedy. (2) The effectiveness of the remedy in controlling the source to reduce further releases based on consideration of the following factors:, 011he extent to which containment practices will reduce further releases; (ii) The extent to which treatment technologies may be used. (3) The ease or'difficultyof . implementing potential remedy(s) based on consideration of the following types offactors: - (i) Degree of difficulty associated with constructing the technology; (ii) Expected operational reliability of the technologies, (iii) Need to coordinate with and obtain necessary approvals and permits from other agencies; - • (iv)Availability ofnecessarp equipment and specialists; and - (v) Available capacity and location of needed treatment, storage, and disposal .services. (4) Practicable capability of the owner or operator, including d consideration of the technical and economic capability. - (5) The degree to which community concerns are addressed by a potential remedy(s). (d) The owner or operator shall - specify as part of the selected remedy a schedules) for initiating and completing remedial activities. Such a schedule must require the initiation of remedial activities within a reasonable period of time taking into consideration the factors set forth in paragraphs (d) (1)-(8) of this section. The owner or operator must consider the following factors in determining the schedule of remedial . activities: October 9,`1991 / Rules and Regulations 5107 - - (1) Extent and nature of contamination; ' (21 Practical capabilities of remedial technologies In achieving compliance with ground -water protection standards established under § 258.55 (g) or (h) and other objectives of the remedy; (3) Availability of treatment or. - disposal capacity forwastesmanaged during implementation of the remedy; (4) Desirability of utilizing technologies that are not currently available, but which may offer significant advantages over already available technologies in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives; (5) Potential risks to human health and the environment from exposure to contamination prior to completion of the remedy; (6) Resource value of the aquifer including: " (f) Current and future was; (ii) Proximity and -withdrawal rate of Users, (tit) Ground -water quantity and quality; . (iv) The potential damage to wildlife, crops, vegetation, and physical structures causedby exposure to 1,raste constituent;" (vJ The hydrogeologic characteristic of the facility and surrounding land; - (vil Ground -water removal and treatment costs: and . (vii) -The cost and availability of alternative water supplies. (7) Practicable capability of the owner or operator. - (8J Other relevant factors: (e) The Director of an approved State may determine that remediationof a release of an appendix II constituent " from itMSWLF brit fa not necessary if " the owner or operator demonstrates to " the satisfaction bf the Director of the., approved State that ' (11 The ground -water is additionally " contaminated by substances that have originated from a source other than. a MSWLF unit and those aubstances are Present in concentrations such that cleanup of the release from the MS4VLF unit would provide no "significant reduction in risk to actual or potential receptors; or ' (2) The constituent(s) is present in ground' water that: (f) Is not'currently or reasonably .expected to be a source of drinking hater, and _ (it) Is not hydraulically connected With water's to which the hazardoua constituents are migrating or are likely to migrate in a concentrations) that would exceed the ground -water protection standardsestablished under § 258.55 (h) or (i); or (3) Remediation of therelease(s) is technically.impracticable; or (4) Remediation results in unacceptable cross -media impacts. (i) A determination by the Director of an approved State pursuant to paragraph (e) of this secticnshall not affect the "authority of the State to require the owner or operator to undertake source control measures or othermeasures that maybe necessary . to eliminate or minimize further releases to the ground -water, to prevent exposure to the ground -water, or to remediate the ground -wafer to concentrations that are technicallypracticable slid significantly reduce threats to human health or the environment. § 258.58 Implementation et the corrective actlGnprogram. (a) Based on the schedule established under § 258.57(d) for initiatfor, and completion of remedial activities the owner(operatormusb . - (1) Establish and implemient a corrective action ground -water monitoring program that: (i) Ata minimum, meet the requirements of an assessment monitoring program under § 258.55; (ff) Indicate the eff, ectiveness of the corrective actionremedy; and ' (titj Demonstrate compliance with groundwater protection standard pursuant to paragraph (e) of this section. (2) implement the corrective action remedy selected under § 258.57; and (3) Take any interim measures necessary to ensue the protection of human health and the environment. Interim measures should, to the greatest extent practicable, be consistent with the objectives of and contribute to the performance of any remedy that may be required pursuant to $ 258.57. The following factors must be considered by an owner or operator In determining whethezinterimmeasures are necessary: (i) Time required to develop and implement a final remedy; (ill Actual or potential exposure of . nearbypopulations or environmental al or potential contaminatfon water supplies or sensitive Uv) Further degradation of the ground- water that may occur if remedial action is not initiated expeditiously; (v) Weather conditions that may cause hazardous constituents to migrate or be released; ' (vi) Risks of fire or explosion, or potential for exposure to hazardous constituents as a result of an accident or 51028 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and'Regulations failure of a container or handling system; and (vii) Other situations that may pose threats to human health and the environment. (b) An owner or operator may determine, based on information developed after implementation of the remedy has began or other information, that compliance with requirements of § 258,57(b) are not being achieved through the remedy selected. In such cases, the owner or operator must Implement other methods or techniques that could practicably achieve compliance with the requirements, unless the owner or operator makes the determination under § 258.58(c). (c) It the owner or operator determines that compliance with requirements under § 258.57(b) cannot be practically achieved with any currently available methods, the owner or operator must: . (1) Obtain certification of a qualified ground -water scientist or approval by the Director of an approved State that compliance with requirements under § 258.57(b) cannot be practically achieved with any currently available methods; (2) Implement alternate measures to control exposure of humans or the environment to residual contamination, as necessary to protect human health and the environment; and (3) Implement alternate measures for control of the sources of contamination, or for removal or decontamination of equipment, units, devices, or structures that are: (1) Technically practicable; and (li) Consistent with the overall objective of the remedy. (4) Notify the State Director within 14 days that a report justifying the alternative measures prior to Implementing the alternative measures has been placed in the operating record. (d) All solid wastes that are managed pursuant to a remedy required under § 258.57, or an Interim measure required under § 258.58(a)(3), shall be managed in a manner: (1) That Is protective of human health end the environment; and (2) That complies with applicable RCRA requirements. (e) Remedies selected pursuant to § 258.57 shall be considered complete when: (1) The owner or operator complies with the ground -water protection standards established under 51 258.55(h) or (i) at all points within the plume of contamination that lie beyond the ground -water monitoring well system established under § 258.51(a). (2) Compliance with the ground -water protection standards established under § § 258.55(h) or (I) has been achieved by demonstrating that concentrations of appendix If constituents have not exceeded the ground -water protection standard(s) for a period of three consecutive years using the statistical procedures and performance standards in § 258.53(g) and (h). The Director of an approved State may specify an alternative length of time during which the owner or operator must demonstrate that concentrations of appendix II constituents have not exceeded the ground -water protection standard(s) taking Into consideration: (i) Extent and concentration of the release(s); (it) Behavior characteristics of the hazardous constituents in the ground- water; (III) Accuracy of monitoring or modeling techniques, including any seasonal, meteorological, or other environmental variabilities that may affect the accuracy; and (iv) Characteristics of the ground- water. (3) All actions required to complete the remedy have been satisfied. (f) Upon completion of the remedy, the owner or operator must notify the State Director within 14 days that a certification that the remedy has been completed In compliance with the requirements of § 258.58(e) has been placed in the operating record The certification must be signed by the owner or operator and by a qualified ground -water scientist or approved by the Director of an approved State. (g) When, upon completion of the certification, the owner or operator' determines that the corrective action remedy has been completed in accordance with the requirements under paragraph (e) of this section, the owner or operator shall be released from the requirements for financial assurance for corrective action under § 258.73, § 258.59 (Reserved] Subpart F—Closure And Post -Closure Care any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10-' cm/sec. whichever is less, and (2) The erosion layer must consist of a minimum of 6 inches of earthen material that is capable of sustaining native plant growth. (b) The Director of an approved State may approve an alternative final cover design that includes: (1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in paragraph (a)(1) of this section, and (2) An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specked in paragraph (a)(2) of this section. (c) The owner or operator must prepare a written closure plan that describes the steps necessary to close all MSWLF units at any point during its active life in accordance with the cover design requirements in § 258.60(a) or (b), as applicable. The closure plan, at a minimum, must include the following Information: (1) A description of the final cover, designed in accordance with § 258.60(a) and the methods and procedures to be used to install the cover; . (2) An estimate of the largest area of the MSWLF unit ever requiring a final cover as required under § 258.6o(a) at any time during the active life; (3) An estimate of the maximum inventory of wastes ever un -site over the active life, of the landfill facility; and (4) A schedule for completing all activities necessary to satisfy the closure criteria in § 258.60. (d) The owner or operator must notify the State Director that a closure plan has been prepared and placed in the operating record no later than the . effective date of this part, or by the initial receipt of waste, whichever is later. (e) Prior to beginning closure of each MSWLF unit as specified fn § 258.60(f), sin owner or operator must notify the State Director that a notice of the Intent to close the unit has been placed. in the operating record. § 258.60 Closure criteria. (a) Owner or operator of all MSWLF units must install a final cover system that is designed to minimize infiltration and erosion. The final cover system must be comprised of an erosion layer underlain by an infiltration layer as follows: • (1) The infiltration layer must be comprised of a minimum of 38 inches of earthen material that has a permeability less than or equal to the permeability of In The owner or operator must begin closure activities of each MSWLF unit no later than 30 days after the date on which the MSWLF unit receives the known final receipt of wastes or, if the MSWLF unit has remaining capacity and there is a reasonable likelihood that the MSWLF unit will receive additional wastes, no later than one year after the most recent receipt of wastes. Extensions beyond the one-year deadline for beginning closure may be Federal Register. / Vol. 56. No. granted by the Director of an approved; State if the owner or operator demonstrates that the MSWLF unit -has the capacity to receive additional wastes and the owner or operator has taken and will continue to take all steps necessary to prevent threats to human health and the environmental from the unclosed MSWLF unit. (g) The owner or, operator of all MSWLF units must complete closure activities of each MSWLF unit in accordance with the closure plan within 180 days following the beginning of closure as specified in paragraph (f) of this section. Extensions of the closure period maybe granted by the Director of an approved State if the owner or operator demonstrates that closure.will, of necessity, take longer than 180 days and he has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed bISWLF unit. (h) Following closure of each MSWLF unit, the owner or operator must notify the State Director that a certification, signed by an independent registered Professional engineer or approved by Director of an approved State, verifying that closure has been completed in .accordance with the closure plan, has been placed in the operating record. (f) (1) Following closure. of all MSWLF units, the owner or operator must record a notation on the deed to -the landfill facility property, or some other instrument that is normally examined during title search, and notify the State Director that the notation has been recorded and a copy has been placed in the operating record. (2) The notation on the deed must in Perpetuity notify any potential purchaser of the property that- (1) hat(t) The land has been used as a landfill facility; and (ii) Its use is res tricted under 0) The owner or operator may request permission from the Director of an approved State to remove the notation from the deed if all wastes are removed from the facility. § 258.61 Post -closure care requirements. (a) Following closure of each MSWLF unit, the owner or operator must ' conduct past -closure care. Post -closure care must be conducted for 3o years, except as provided under paragraph (b) of this section, and consist of at least the following: (1) Maintaining the Integrity and effectiveness of any final cover, including making repairs to the cover as necessary to correct the effects of settlement, subsidence, erosion, or other events, and preventing run-on and run - .y, October 9,-1991 off from eroding or otherwise damaging the final cover, (2) Maintaining and operating the leachate -collection system in accordance with the requirements in § 258.40. The Director of an approved State may allow the owner or operator to stop managing leachate if the owner or operator demonstrates that leachate no longer poses a threat to human health and the environment; (3) Monitoring the ground water in accordance yAth the requirements of subpart E of this part and maintaining the ground -water monitoring system, if . applicable; and (4) Maintaining and operating the gas .monitoring system In accordance with the requirements of § 258.23. (b) The length of the post -closure care (1) Decreased by the Director of an approved State if the owner or operator demonstrates that the reduced period is, sufficient. to protect human health and the environment and this demonstration Is approved by the Director of an approved State; or (2) Increased by the Director of an approved State if the Director of an approved State determines that the" .lengthened period is necessary to protect human health and the environment (c) The owner or operator of all MSWLF units mustprepare a written Post -closure plan that includes, at a minimum, the folio information: (1) A descriptio10 f the monitoring and maintenance activities required in § 258.61(a) for each MSWLF unit, and the frequency at which these activities will be performed (2) Name, address, and telephone number of the person or office to contact about the facility during the post -closure period; and (3)'A description of the planned uses of the property during the Post -closure period. Post -closure use of the property shall not disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the monitoring systems unless necessary to comply with the requirements in this Part 258. The Director of an approved State may approve any other disturbance if the owner or operator demonstrates that disturbance of the final cover, liner or other component of the containment system, including any removal of waste, will not increase the potential threat to human health or the environment. (d] The owner or operator must notify the State Director that post -closure plan has been prepared and placed in the operating record no later than the effective date of this part, October 9, and Regulations 51029 1991, or by the initial receipt of waste, whichever is later. (e) Following completion of the past - closure care period for each MSWLF unit, the owner or operatormustnotify the State Director that a certification, signed by an independent registered professional engineer or approved by the Director of an approved State, verifying that past -closure care has been completed in accordance with the post - closure plan, has been placed in the operating record. , - §§258.62 258.69 [Reserved) Subpart G—Financial Assurance Criteria § 258,70 Applicability and effective date. (a) The requirements of this section apply to owners and operators of all MSWLF units, except owners or operators who are State or Federal government entities whose debts and liabilities are the debts and liabilities of a State or the United States. (b] The requirements of this section are effective April 9, 1994. § 258.71 Financial assurance for closure. (a) The owner or operator must have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area of all MSWLF unit ever requiring a final cover as required under $258.80 at any time . during the active life in accordance with the closure plan. The owner or. operator must notify the State Director that the . estimate has beenplaced in the operating record. (1) The cost estimate must equal the cost of closing the largest area of all MSWLF unit ever requiring a final cover at any time during the active.Iffe when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see § 258.00(c)(2) of this part). - (2) During the active life of the MSWIY'unit, the owner or operator must annually adjust the closure cost estimate for inflation. (3) The owner or operator must increase the closure cost estimate and the amount of financial assurance Provided under paragraph (b) of this section if changes to the closure plan or MSWLF unit conditions increase the, maximum cost of closure at any time dmfng the remaining active life. (4) The owner or operator may reduce the closure cost estimate and the amount Of financial assurance provided under paragraph (b) of this section if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the MSWLF unit. The 51030 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations owner or operator must notify the State Director that the justification for the reduction of the closure cost estimate and the amount of financial assurance has been placed in the operating record. (b) The owner or operator of each MSWLF unit must establish financial assurance for closure of the MSWLF unit in compliance with § 258.74. The owner or operator must provide continuous coverage for closure until released from financial assurance requirements by demonstrating compliance with § 258.60(h) and (i). § 258.72 Financial assurance for post - Closure caro. (a) The owner or operator must have a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post -closure care for the MSWLF unit In compliance with the post -closure plan developed under § 250.61 of this part. The post -closure, cost estimate used to demonstrate financial assurance in paragraph (b) of this section must account for the total costs of conducting post -closure care, including annual and periodic costs as described in the post -closure plan over the entire post -closure care period. The owner or operator must notify the State Director that the estimate has been placed in the operating record. (1) The cost estimate for post- closure care must be based on the most expensive costs of post -closure care during the post -closure care period. (2) During the active life of the MSWLF unit and during the post -closure care period, the owner or operator must annually adjust the post -closure cost estimate for Inflation. (3) The owner or operator most increase the post -closure care cast estimate and the amount of financial assurance provided under paragraph, (b) of this section if changes in the post - closure plan orMSWLF unit conditions Increase the maximum costs of post - closure care. (4) The owner or operator may reduce the post-clasure coat estimate and the amount of financial assurance provided under paragraph (b) of this section if the cost estimate exceeds the maximum coals of post -closure care remaining over the post -closure care period The owner or operator must notify the State Director that the justification for the reduction of the post -closure cost estimate and the amount of financial assurance has been placed in the operating record. (b) The owner or operator of each MSWLF unit must establish, in a manner In accordance with § 258.74, financial assurance for the costs of post - closure care as required under § 258.61 of this part. The owner or operator must provide continuous coverage for post - closure care until released from financial assurance requirements for post -closure care by demonstrating compliance with § 258.61(e). § 258.73 Financial assurance for corrective action. (a) An owner or operator of a MSWLF unit required to undertake a corrective action program under § 258.58 of this part must have a detailed written estimate, In current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the program required under § 258.58 of this part. The corrective action cost estimate must account for the total costs of . corrective action activities as described in the corrective action plan for the entire corrective action period. The owner or operator must notify the State Director that the estimate has been placed in the operating record. (1) The owner or operator must annually adjust the estimate for inflation until the corrective action program is completed in accordance with § 258.58(f) of this part. (2) The owner or operator must increase the corrective action cost estimate and the amount of financial assurance provided under paragraph (b) of this section if changes in the corrective action program or MSWLF unit conditions increase the maximum costs of corrective action. (3) The owner or operator may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided under paragraph (b) of this section if the cost estimate exceeds the maximum remaining costs of corrective action. The owner or operator must notify the State Director that the justification for the reduction of the corrective action cost estimate and the amount of financial assurance has been placed in the operating record. (b) The owner or operator of each MSWLF unit required to undertake a corrective action program under § 258.58 of this part must establish, in a manner in accordance with § 258.74, financial assurance for the most recent corrective action program. The owner or operator must provide continuous coverage for corrective action until released from Financial assurance requirements for corrective action by demonstrating compliance with § 258.58 (f) and (g). § 258.74 Allowable mechanisms. The mechanisms used to demonstrate Financial assurance under this section must ensure that the funds necessary to meet the costs of closure, post -closure care, and corrective action for known releases will be available whenever they are needed. Owners and operators must choose from the options specified in paragraphs (a) through (j) of this section. (a) Trust Fund. (1) An owner or operator may satisfy the requirements of this section by establishing a trust fund which conforms to the requirements of this paragraph. The trustee must be an entity which has the authority to act as a trustee and whose trustoperations are regulated and examined by a Federal or State agency. A copy of the trust agreement must be placed in the facility's operating record. (2) Payments into the trust fond must be made annually by the owner or operator over the term of the initial permit or over the remaining life of the MSWLF unit, whichever is shorter, in the case of a trust food for closure or post -closure care, or over one-half of the estimated length of the corrective action program in the case of corrective action for known releases. This period is referred to as the pay -in period. (3) For a trust fond used to demonstrate financial assurance for closure and post -closure care, the First payment into the fund must be at least equal to the current cost estimate for closure or post -closure care, except as provided in paragraph 0) of this section, divided by the number of years in the pay -in period as defined in paragraph (a)(2) of this section. The amount of subsequent payments must be determined by the following formula: CE—CV Next Payment = Y where CE is the current cost estimate for closure or post -closure care (updated for inflation or other changes), CV is the current,value of the trust fund, and Y is the number of years remaining in the ,pay -in period (4) For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund mustbe at least equal to one-half of the current cost estimate for corrective action, except as provided in paragraph 0) of this section, divided by the number of years in the corrective action pay -in period as defined in paragraph (a)(2) of this section. The amount of subsequent payments must be determined by the following formula: Next Payment = I�, 8" Federal ( Vol.. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations 51031 where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that _ will be incurred during the second half of the corrective action period), CV is •the current value of the trust fund, and Y is the number of years remaining on the pay -in period. (5) The initial payment into the trust fund must be made before the initial ' receipt of waste or before the effective date of this section (April 9, 1994), .: whichever is later, in the case of closure and Past -closure care, or no later than 120 days after the, corrective action remedy has been selected in accordance with the requirements of § 258.58. (6) If the owner or operator establishes'atrust fund after having used one or more alternate mechanisms specified In this section, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established Initially and annual payments made according to the specifications.of this paragraph and § 270.74(a) of this section, as applicable. (7) The owner or operator, or other person authorized to conduct closure, Post -closure care, or corrective action activities may request reimbursement from the trustee for these expenditures. Requests for reimbursement will be granted by the trustee only if sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post -closure care, or corrective action, and If justification and documentation of the cast is placed In the operating record. The owner or operator must notify the State Director that the documentation of the justification for reimbursement has been placed in the operating record and that reimbursement has been received. (8) The trust fund may be terminated by the owner or operator only if the owner or operator substitutes alternate financial assurance as specified in this section or if he is no longer required to demonstrate financial responsibility in accordance with the requirements of § § 258.71(b), 258,72(b), or 258.73(6). (b) Surety Bond Guaranteeing Payment or Performance. (1) An owner or operator may demonstrate financial assurance for closure or post -closure care by obtaining a payment or Performance surety bond which conforms to the requirements of this paragraph. An owner or operator may demonstrate finandaf assurance for corrective action by obtaining a • performance bond which conforr .s to the requirements of this paragraph. The bond must be effective before the Initial receipt of waste or before the effective date of this section (April 9, 1994), whichever is later, in the case of closure and post -closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of § 258,58. The owner or operator must notify the State Director that a copy of the band has been placed In the operating record. The surety company issuing the bond must, at a minimum; be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury. _ (2) The penal sum of the bond must be in an amount at least equal to the current closure, post -closure care or corrective action cost estimate, whichever is applicable, except as provided in § 258.74(k). , M' Under the terms of the band, the surety will become liable on the bond obligation when the owner or operator . fails to perform as guaranteed by the bond. (4) The owner or operator must establish a standby trust fund. The staridby trust fund must meet the requirements of § 258.74(a) except the requirements for initial payment and subsequent annual payments specified in § 258.74 (a)(2), (3), (4) and [5). ' (5) Payments made under the terms of . the bond will be deposited by the surety directly into the standby trust fund. Payments from the trust fund must be approved by the trustee. (6) Under the terms of the bond, the surety may cancel the, bond by sending notice of cancellation by certified mail to the owner and operator and to the State Director 120 days in advance of cancellation. If the surety cancels the bond the owner or operator must obtain alternate financial assurance as specified in this section (7) The owner or operator may cancel the bond only if alternate financial assurance Is substituted as specified in this section or if the owner or operator is no longer required to demonstrate' financial responsibility In accordance with § 258.71(b), 258.72(b) or 258.73(b). (c) Letter of Credit. (11 An owner or operator may satisfy the requirements of this section by obtaining -an irrevocable standby letter of credit which conforms . to the requirements of this paragraph. The letter of credit must be effective before the initial receipt of waste or before the effective date of this section (April 9, 1994), whichever Is later, in the case of closure and post -closure case, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of § 258.58. The owner or operator must notify the State Director that a copy of the letter of credit has been placed in the operating record. The Issuing institution must be an entity which has the authority to issue letters of credit and whose letter -of -credit operations are regulated and examined by a Federal or State agency. (2) A letter from the owner or opera toi referring to the letter of credit by number, issuing institution; and date, and providing the following information: Name, and address of the facility, and the amount of funds assured, must be included with the letter of credit in the operating record. (3) The letter of credit must be irrevocable and issued for a period of at least.one year in an amount at least equal to the current cost estimate for. closure, post -closure care or corrective action, whichever is applicable, except as provided in § 258.74(a). The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless the issuingetter institution has cancelled the lof credit by sending notice of cancellation by certified mail to the owner and operator and to the State Director 120 days in advance of cancellation. If the letter of credit is cancelled by the issuing institution, the owner or operator most obtain alternate financial assurance. (4) The owner" or operator may cancel the letter of credit only if alternate financial assurance is substituted as specified in this section or if the owner or operator is released from the requirements of this section in. accordance with § 258.71(b), 258.72(b) or 258.73(bJ. (d) Insurance. (1) An owner or operator may demonstrate financial assurance for closure and post -closure care by obtaining insurance which conforms to the requirements of this paragraph. The insurance must be effective before the initial receipt of waste or before the effective date of this section (April 9, 1994), whichever is later. At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States. The owner or operator must notify the State Director that a copy of the insurance policy has been placed. in the operating record. (2) The closure or post -closure care insurance policy must guarantee that funds will be available to close the MSWLF unit whenever final closure occurs or to provide post -closure care for the MSWLF unit whenever the post. closure care period begins, whichever is applicable. The policy must also guarantee that once closure orpost- closure care begins, the insurer will be 51032 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations esponsible for the paying out oUunds to the owner or operator or other person authorized to conduct closure or post - closure care, up to an amount equal to the face amount of the policy. (3) The insurance policy must be Issued for a face amount at least equal to the current cost estimate for closure or post -closure care, whichever is applicable, except as provided In § 258.74(a). The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments. (4) An owner or operator, or any other person authorized to conduct closure or post -closure tate, may receive reimbursements for closure or post - closure expenditures, whichever is applicable. Requests for reimbursement will be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of closure or post -closure care, and if justification and documentation of the cost Is placed in the operating record. The owner or operator must notify the Slate Director that the documentation of the Justification for reimbursement has been placed in the operating record and that reimbursement has been received. (5) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment maybe conditional upon consent of the Insurer, provided that such consent is not unreasonably refused. (6) The Insurance policy must provide that the insurer may not cancel, terminale or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy by sending notice or cancellation by certified mail to the owner and operator and to the State Director 120 days in advance of cancellation. If the insurer cancels the policy, the owner or operator must obtain alternate financial assurance as specified In this section. (7) For Insurance policies providing coverage for post -closure care, commencing on the dale that liabil;ty to make payments pursuant to the po 'cy accrues, the Insurer will thereafter annually Increase the face amount of the policy. Such Increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent Investment rate or of the equivalent coupon -issue yield announced by the U.S. Treasury for 26 - week Treasury securities. (8) The owner or operator may cancel the insurance policy only if alternate financial assurance is substituted as specified in this section or if the owner or operator, is no longer required to demonstrate financial responsibility in accordance with the requirements of § 258.71(b), 258.72(b) or 258.73(b). (e) Corporate Financial Test. (Reserved] (f) Local Government Financial Test. [Reserved] (g) Corporate Guarantee. [Reserved] (h) Local Government Guarantee. [Reserved] (t) State Approved Mechanism. An owner or operator may satisfy the requirements of this section by obtaining any other mechanism that meets the criteria specified in § 258.74(1), and that is approved by the Director of an approved State. 0) State Assumption of Responsibility. If the State Director . either assumes legal responsibility for an owner or aIperator's compliance with the closure, postclasure care and/or corrective action requirements of this part, or assures that the funds will be available from State sources to cover the requirements, the owner or operator will be in compliance with the . requirements of this section. Any State assumption of responsibility must meet the criteria specified in § 258.74(1). (k) Use of Multiple Financial Mechanisms. An owner or operator may satisfy the requirements of this section . by establishing more than one financial mechanism per facility. The mechanisms must be as specified in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (I), and 0) of this section, except that it is the combination of mechanisms, rather than the single mechanism, which must provide financial assurance for en amount at least equal to the current cost estimate for closure, post -closure care or corrective action, whichever is applicable. The financial test and a guarantee provided by a corporate parent, sibling, or grandparent may not be combined if the financial statements of the two firms are consolidated. (1) The language of the mechanisms listed in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (f), and 0) of this section must ensure that the instruments satisfy the following criterla; (1) The financial assurance mechanisms must ensure that the amount of funds assured is sufficient to cover the costs of closure, post -closure care, and corrective action for known releases when needed; (2) The financial assurance mechanisms must ensure that funds will be available in a timely fashion when needed; '(3) The financial assurance mechanisms must be obtained by the owner or operator by the effective date of these requirements or prior to the Initial receipt of solid waste, whichever is later, in the case of closure and post - closure care, and no later that 126 days after the corrective action remedy has been selected in accordance with the requirements of § 258.58, until the owner or operator is released from the financial assurance requirements under § § 258.71, 258.72 and 258.73. (4) The financial assurance mechanisms must be legally valid, binding, and enforceable under State and federal law. Appendix 1 to this Part 258— Constitubnts for Detection - Monitoring r Common name z I CAS AN a Constituents: 67-64-1 17) Acrylonitrlle.................................. moray_.....__ ... ...... _..... _._. (Total) inic_._.....�.............._....«_.._.. 74-97-5 (Tatai) um__....._._ ....................«........ 21) Branlalarin; Tribromamelhana_.. (17010 tIlium........... ............. _..._........ 75-15-0 (Total) mium_ ..... ... _....... ............... 24) Chlorobenzew ............................ (Total) mium............____.__._._..:._. 75-004 (Total) sart ...«_...__..I ... __........ _... ... (170120. per .................. _............. ....... (TclsO d_ ........................ ........................._..._............ MCI, ....... _...... ........ _...I ...... _.._..._ (Total) :Kel............................................. (Total) Ionium ...... .... ___........ (30) • o-Dlchtarobenzene; 1,2 -Dick- (Total) vac....«......._..«_««..._......-....,.. 95-50-1 (To<2l) WE= ........... _._.:......«_........_. obomene................... ... ____........... (Tota) mIlium...... ............ ...«.............. - 110-57-6 (Total) tc...... _................. _..... ................. chlodde....... ..... .:....:..__.................. (Tocol) 16) Acetone ....... ............ _....... .... ..._ . 67-64-1 17) Acrylonitrlle.................................. 107-13-1 16) Benzene_._ ... ........................ ........ 71-43-2 19) Bmmochbromelhane ... _.............. 74-97-5 20) Bromodichlarometh ne........... __ 75-27-4 21) Branlalarin; Tribromamelhana_.. 75-25-2 22) Carbon 6SLAnde.... ......... _a....... 75-15-0 23) Carbon lelrachlodds........... 56-23-5 24) Chlorobenzew ............................ 106-90-7 25) Chloroathane; EW chloride..._. 75-004 26) Chlomrmm; Trkhlaomelhane.... 67-66-3 27) D,bromochbmmethena; Chlor- odibramomethane .................«......... 124-46-1 126) 1,2-Dlbra o-3-chloropropane; MCI, ....... _...... ........ _...I ...... _.._..._ 96-12-6 (29) 1,2-D&xomoelhane; Ethylene dibromide; EDB ... ................ _........ _. 106-93-4 (30) • o-Dlchtarobenzene; 1,2 -Dick- - lorobenzens............. _................. .... ... 95-50-1 (31) p-Dichlorobemau,; 1,4-Diehlor- obomene................... ... ____........... 10646-7 (32) bans-1,4-Dlchlor 2430ene........ - 110-57-6 (33) 1,1-Dlch1vr thanrr, Ethy11dene chlodde....... ..... .:....:..__.................. . 75-3A-3 (34) 1,2-Dichlormthane; Ethylene dichlcdde........ _.... .._......... ... ......... . 107-017-2 (35) 1,1-Dichleroethylene; 1,1431ch. Ioroethwe; Vinylidene chloride.__. 75-35-4 (36) cis-1,2-1)lohIcroethylene; cis- t2-niMloromhene._.-.._................ 156-59-2 Federal Register / Vol. 56. No. 198 (.Wednesday, October 9, 1991/Riles and Reg111atinns KSctga Common name = ' CAS AN = Common name = CAS RN = - Common name = CAS RN' (37) Vans-l,2-01chloroethYlene; (47) Methyl ethyl ketone; MEK; 2- (59) 1,2,3-Trichlwopropane..«___....... e6-18-4 Yana. Xchlohkxopa en Prop.:._..._ 155-60.5 Bufarrone.._.:.................._.-.:.�,«... 78-93-3 (60) Vinyl acetate....._:._...t„_.�._^G 108-05-4 (38) 1,2-Dichloropropane; Mopylane (48) Methyl iodide; lodomethane.__ 74-88-4 (61) Vinyl chloride ........... ..__ 75-01-4 dichloride__._. ............... ._...... ........ 78-875 (49) 4-Methyl-2-pcmanane; Methyl (39) cis-1,3-Cichloropropene.............. 10081-01-5 (Sobutl4 ketone ........ .. .. 108-10-1 (62) XNenes..... ........ _...... ..:_..... .._.. 1330.20.7 .(40) tarts-l,3-Dkillomproperte...... «... 10061-02-6 (50) Stinane._........ .... ....... ..... I ........ . 100-42-5 rThis list contains 47 volatile Organics for which (41) Ethylbeniene ............ _.....„.._:_. 100-41-4 (51) 1,10,2•Tetrachlomelhane _...... 630.20-6 9 ppossNle analytical procedures rrovatu in EPA (42) ne...none; Methyl ' butyl (53) tTetracTeroethylens; Tatrach. 79-34-5 Assort third e•Test Methods ranoE6 asng,ft d ketone ................................. 591-78-6 (53) Tetrachloroethylene; Tetrach- Waste;' r 1 editlon, November 1988, as revised 1987, includiesSW-846 Method 826P and 15 (43) Methyl bromide; Bromomslh- 4) Toluene; Perchloroethyfene....... 127-18-4 metals ' ane ......... chloride;.« ......... _.Zd-83-9 (54) Toluene....._.__._ .... _........Meth-. 108-88-3 metaCs far method Som the coo, sexes -either Method 6010 or a method -from Ota WO cedes of methods. hods. - (44) Methyl chloride; Chloromelh• - (55) 1,1,1•TrichlwaeMene;, Meth- xCommwl names are those widely used fn Bev - ane._.._._..._._...._..____:......._..:....... 74-87-3 YtcMwoTrichl.:.._.__ne..__...._.. 71-55-8 emment 56 regulations, sdOntfic Publications, and com- (45j Methylene bromide; Cibromo- ( ) 1.1,2-TdcMaoe e; TrI _..„,.._.._. 79-00-5 merca; synonyms exist for many chemicals. meMene,-..._-..chlorids; ...^..-.._._.. 74-95-3 (571 Trichloroethylene. Trichiaroeth- =Chemical Abstracts Service regfsby number. (46) McOtylane chloride; Ofchlwo; ene...............-. 79-01-6 Where "Total” Is entered, a8 spades in the ground methane _................. _.... _..... _ 75-09-2 (58) Tridlorolluwomothane; CFC- - .water that contain this element we Included. .._..._ ... :......... __.:...:.......... _...... 75-69-4 Appendix II to this Part 258 -List of Hazardous Inorganic and Organic Constituents' Common Name • - - e CAS RN Chemical abstracts service index name .. Sug- 9esin- meth- PC1L ( g/ y �`... ods = Acanaphthena_.......... ..... ................__.._.._.......___.._._.._...... 83-32-9 Acenaphthylene, 12-dihydre................... .. ...... , 8100' 200 _.... ..... ........ 206-98-8 t... Acenaphmylene 6270 . 10 ' ......._.. ..... _._......... _..... -_............. :................. .......... 8100 200 Acetane........ _._._.__.._.._...._...«..._..._..__....._.__.. _........._. Acetonilft MeLhyl cyanide 67-64-1 2-Prapenone.__..._...._._.. 8270 B2W 10� 1017 ..................... _..^- ............... ............ Acelrphenone..._...._...«..«_:_..«......_...._.:......«._..«............_._. 75-05-e Acetnnitriie....«._..__._.._.......-.„......«...„.......... ........ ...._..... ....«... 8015 100 2•AAF.......«..« 98-86-2 Edmore. t-phemyl............._.__^..__.__......_....__...........:_....„. 8270 10 Aadeilamino0•uwane; ................�..„«......_..:._..... Awalein:.,___.____.__.._.._____:_...._,.....:.. 53-96.3 Acetamide, N-9H-Buoren-2-y4.._._......... 8270 20 -8260 107-02-8 ....__......... __.._.._._...^_....... . 8030 S Acrybnitrlla - 1 100 ___.......... . ........ .107-13-1 2-Propenenible........___ ..._�..._..._..—.,..c_„..__.__._,.____.. 8030 ' 5 - Aldrin ....:_._..__._...... ....._._.,.__.__.__._...._ 309-00.2 t,4:5,8-Dimefhanonap thafene, 12,3.4.10,10•hexacMdro- 8260 -'. SO it 200 0.05 Aityr cMoritle 1,4,4a.5,8,ea-hexahydm 1g4g1eQ,5¢,eq8 ( �): 827010 .............................. .........__„__ ..................._..-................ - to7-05-1 1-Propene.3-chloro.«._........._.._.......__._.__ ... .......„.._..«.._. 8010 5 . 4Aminob;phetryl_....._..._«....... .................... __.._.„. .. .........-...._.. AMhracene..__._..._ 82-fi7-1 C1,1r-Bi hen 7<.amine.._............ .. .' �. P Yf......................_........._.._._«..... 8280. 8270 10 20 ............._......._._........_.........__.___.._. 120.12-7 Anthracene .... ..... ......... ' ........ 8100 200 .._........... _..._............... ... rry 6270 - ................^.._.....................^........................._...... .. :6010 300 7040 2006 - Arsenic:....... ._.........___._.._...^._- _.....__.».._._..__...^_. (Tota6 Arsenic._ '. 7041 30 ........... _..... ' .. .. 7080 10 Bartum..... ..................... _.... _........:....... ................._......................._ (Total) •- - Barium...._......_. '.7061 20 ........................_......._................. „„......._.«._.:::.._ •solo zD . •- eenzene....._..._.._.,_._._.^..._...._..........:............_..:.............._....... 71-43-2 . •. Benzene....._........._. . 7080 1000 .. ..._............'..................„................:.._..._.a..._. 8020 2 8021 0.1 _ 13enzoCalen8uacenq Be.n..z...a-_n._t_h.a._c«ene _.._....._........ 56-55-3 8260 _.........................__:_........._._.-.. 8100 1200 BevoCb]fluoranNena..................._«........_...._.._._.._._........ ......... 205-89-2 ... BenztelacePhenanthrylene......_.......... 0270 Ya O ........... 8100 200 ....._...._._:.:.'....;__._._... 207-08-9 Benzolk7fluonene.-_......_...__... 8270 10 am 8100 200 Benzo(ghllperylene.__..........._. ............. ......................I .......... «. 8100 200 eenzoCal 50-02-8 Benzoralpyrene. ...... _......... .......... _....... ___ ................... . B270 8270 8100 t0 200 Benzyl alcohol _._. 100-51-6 „' - Semm eneeNenoi.._.__—,-..._._._.__.' ..............-.„.„_horror««__:.«. 8270 8270 10 - 20 tfma6BeryBiurrk:.._:-...._._ ................. .._........ .-........... ..._...-..._...._.._ 6010 3 .. - 7090 56 alpha -BHC_-.._.....-....._._...„... .. 319-84-8 Cyclohexane, /,2,3,4,5,6�hexadilwo-, (ta,2a,3p,4¢,5p,ett)-_.. 7091 - 8080 2 0.05 beta -BHC _.__......- .... «rococo - .._..____._._.......____«.__-....__ 319-85-7 ' - `- CYckhaxans, 1,2,3,4,5,5-haxaohlom, (ta2p,3gQ7,5g6(6_-,_ - 8270 Wile 10 0.05 daha-BHC.............._...._.._.._.._..___...i.^._. .......__.«_.._.....__. 3t9-88-6 Cydohexerre, 12,3.4.5.6hexaddoro-. (1¢2¢,3a,4R,5a,6R)- 8270 8080 20 0.t 11270 20 51034 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations Common Name x gamma.BHC; Undane _.._...... __-........ ....... BrA2-chIwoethcxy)malhane ....... ...._................ Bis(2-chlaroethyl) ether, Dichloroethyl ether...... lhs-(2chlono i-malhylmhyi) other, 22' -Dice, Other, DCIP, Bae nate 7 Bla(2•ettr haxyl) phthalate ........ _....,...._...... .... eromochlaomalhana; Chlorabmmomelhane... B(omodchlaromothano; Dfbromochlaromelhan� Bronalorm; Tdbromomelhane .... _...... ...... .... 4•Bromcphanyl phenyl ether.._._.__............. Butyl bomyt phthWa!e; Benzyl butyl phthalate. Cadmium.._.... ..... ..................... _.__........... Carbon daulTda—w-._...._......_.-._.... ............ . Carbon tetrachloride ........ ........... .......... .... , p-Chlow nZm._..._._..._..........._..__._..... Chlorobonzene, ...... _...._........ -........ ........... Chlarobomilal a ........ ......... ......... .__............. p-Ch;o mcre % 4-Chloro-3-methNPhenol._. Chloroalhime, Ethyl chloride ........ —1 ............ Chloroform; Tr,chloromalhane ..... ................. 2XV0rophancl __._.._.._............ ................. 4-Chbrophanyl phenyl other _..... _............. Clxysene.____.__._...__.__._.._........... Cobalt_. _....._......____.._. ... ..... .... m•Crosol; 3-methylphencl ..... ......... ......... a-Crosol; 2-methylphenot ... ...................... p-Crosot 4-meNNPhanol ......... ...... .._...... .. Cyarnda._.___........................ .............. 2,4-D; 2,4-Dichlorophonoxyacetic add...... 4.41 -DOD ..... .. . ...... - UM.;.:a 4.41 -DDT ._._.__..................................... DMIlate........................................................... I 05 1 CAS HN • Chemical abstracts service Index name • gested me h- cda 6 . POL (rgy L) ,...'............... 58-89-9 Cyclohexane, 1,2,3,4.5.6-hexachloro-, (1a,2a,3A.4a,5a,6/8)-.... 8080 0.05 8270 20 .._........... 111-91-1 Ethane, 1,1'-Cmelhylenebis(oxy)lbisT2-chloro........................... . 0110 5 8270 10 ....................... 111-44.4 Ethane, 1.11-oxybis[2chloro........................................................ 8110 3 0270 10 arodllsopropyl 108-60-1 Propane,aV-oxybis[t-ehbro-......................... ...................... I...... 8110 10 8270 10 .............. 117-81-7 1,2-Senzenedlcarboxylfe acid, bis(2-elhylhexyl) ester.................. 8060 20 �........ ...................... 74-97-5 Methane, bromachioro....:................................................................ 8021 0.1 8260 5 �....... ... ._........... 75-27-4 Methane, br4modichloro-........................ .............. ................... ..... . 6010 1 8021 0.2 8260 5 ........................... 75-25-2 Methane, bibromo....... ........ ..._.......................... ......... _... ............. . 8010 2 8021 15 6260 5 ......................... 101-55-3 Benzene. t-broma-4-phenoxy-.......................................... ........... . B110 25 8270 10 _....... _................ 85-68-7 1,2-Senzenedicarboxylic acid, butyl phenylmethyl ester ..... _....... 8060 5 8270 10 ........................ (Total) Cadmium.......................................................................................... 6010 40 7130 50 _ '- 7131 1 ......................... 75-15-0 Carbon disulFide.................................... __..... ..... _........ ................... . 8260 100 ...... .................... 56-23-5 Methane. letrachloro-........................................... .......... ...... I ......... . 8010 1 8021 0.1 8260 t0 .......... ...,_...._... See Note 8 4,7-Metharw-11-1-indene, 1,2,4,5,6,7,8,6-octachlao- 8080 - 0.1 _2,3,3a,4,7,7e-hexahydra-. 6270 50 ......................... 106-47-8 Benzenamina. 4chloro-....... ........... .............................. .............. 6270 20 .... ........... _...... .... 108-90-7 Somme, chloro.............................................................................. 8010 2 8020 2 8021 0.1 8260 5 ....... _.._......... . 510-15£ Bomeneacellc acid, 4chloro-.(4.chlorophenyt) a -hydroxy-, 827b X10 ethyl ester. . ......... I ... ............ 59-50-7 Phenol, 4-chloro-3-methyl............................................................... 6040 5 6270 20 ... ....... _.......... . 75-00-3 Ethane, chloro ............. ....... .................. ............. I ......................... . 8010 5 8021 1 6260 10 ....... .................... 67-66-3 Methane. b.chloro............................ ..................... .............. ......... ... 8010 0.! 8021 0: 8260 5 ....... .._.......... .... . 91-58-7 Naphthalene.2chloro...................:................................................ 8120 10 8270 t0 ............................ 95-57-8 Phenol, 2 -chloro- ....... ............. ..................................................... 1.4 8040 5 8270 10 ...............I......:...... 7005-72-3 Benzene,lchiero4.phenoxy................................. ....................... . 8110 40 8270 10 ............................ 126-99-8 1,3.Butadiene, 2 -chloro- ........ ................. ....... ................. ........ ..,...... 8010 50 Not) 20 ........................... (total) Chromium ............ ........ ............................... .............................. ........ . 6010 70 7190 500 7191 10 ............................. 218-01-9 Chrysane................ ... ............................... ...... .... _I ........................ .... 8100 200 8270 10 ......_...... ............... (Total) Cobalt................................................................................................. 6010 70 7200 500 7201 10 ............................ (Total) Copper .......... _.......... ........................ ... _.................. .... ......... ............. 6010 e0 7210 200 7211 10 ............................ 108-39.4 Phenol, 3 -methyl-........ .... ....... ..._................... .......................... ...... . 8270 10 ............................. 96-48-7 Phenol, 2-mothyl-................... ...................... ........ ...... ..... ...I ....... ... 6270 10 ............. 106-44-5 Pheml.4.melhyl..... ............. ............................... ..... ...... _................ 6270 10 ........ ..I.... ....... ...... 57-12-5 Cyanide .... ........... ........................................................................... 9010 200 ............ ..I ............................ 94-75-7 Acetic arid,(2,4-dichlorophenoxy).................. ...........................,... 8150 10 ............................ 72-54-8 Benzene 1,11{2,2-dlchlw ethy0dene)bis[4-chloro-..................... 8080 0 6270 10 ............................... 72-55-9 Sanzeno, 1,1'.(dicNcroelhyenylidem)bis[4chloro............. ....... 8080 0 1 8270 10 ............................... . 50-29-3 Benzene, 1,11-(2,2,2-Idchloroethylidene)bis[4-chloro-....._.......... BOBO 0 0270 10 ............................... 2303-16-4 Carbamolhioic acid, bis(1-melhylethyp-,S.(2,3.dichloro-2-pro 8270 10 penyl) ester. I 05 1 decal Pegister f VoL 56, No. 196 / Wednesday, October 9, 1991) Rules and Regulations .51035 .. . Common Namex- Dibromcchioromethane; Chlorodibromomethane.... 1,2-Dibromo-3.chlwopropane; DBCP.....................«. 1,24)i1sromoethane; Ebryiene ddbromide; EDB....... Dl -n -butyl phthalate._ ...................._............................. 6 -Dichlorobenzene; 1,2-0ichicrobenzene._.... .......... m -Dichlorobenzene; 1,34)ichforabenzene P-Dichlorcborcume; 010d0rod8uwornethane; CFC 1,1-Dichlwoethane; EMylddene chloride.._ ......... __. 1,2-DkF.lwoelhane; Ethylene dichloride_...._.._._..._. •1,1•Dichloroethylerre; 1,1-151ch1cr0athene; lfinylidene cls-t2-Dich1ometbylena; ds-t2-Dichlorcethene_._. trans-l2-Uchloroethylene trans-1,2-Dichlwoethene. 2,&Dicidarophenol __...... ._...... 124)ichloropropane; Propylene ds 1,3-Dichbroprbpane; 7dmeWwe 2,2-Dichloropropane; facpropyrder 1,1-Dichloroprcpene.._.....__....._. cis-1,3-01chlompropene..__..-...._. Dielddn...... Diethyl Phil 0,0-DfeOryl Dimethoete i . CAS RN Chemical abstracts service index name + x hd ods' 53-70-0 DibenzEs hlambracene........................................................._...._::. 8100 8270 132-84-9 Dibenmfuran__._............ ........ ............................... -........__._... 8270 124-48-1 Methane, deiromochlaro-....__........................................._.:......_.. 8010 8021 8260 96-12-8 Propane.l2-dibrome•3-chbnr......................................... 8011 8021 8260 106-03-4 Ethane, 1.2-rill:romo-.__....... ...._..__............................................... 6011 8021 84-74-2 1,241eozenerIIcarhoxyrc acid, dibatyi ester ......... ....W......_........... SOOW 95-50-1 Benzene, 1,2dictliom-....... ...-............................................... 8010 8020 8021 8120 6260 BZ70 541-73-t Benzene,.1,3-[Nchloro-......................._................ ...................... _.. solo . 8020 8021 8120 . 6260 8270 10610646-7Bemene, 1,4-0ichicro-............ .............. ._..__._.................... -^ 8040 8020 8021 0120 6280 ... 8270 91-944 -6 C1,tr-ml 3,3r chloro .....................«._. 8270 110.57-8 1,-dichbr,amine, 2 -Butene, 1.4-dkhiwo-. (E)- 8260 75-71-8 Methane, d'Khlwcdfluoro-_._..._...-................. —.... ... 8021 8260 75-34-3 Ethane, 1,1dfchbro.............:........................ 8010 8021 8260 1N-08-2 Ethane.tt_dichlaro-_........ »..__......._._......_.._._._.I......____. 6010 8021 8260 75-35-4 Ethane, ttdichkro-._..__........«_._.........._..__..._..............__.._ 8010 . - 8021 156-5¢2 Etna8260 n& 12dichf rm-,(Z).:..........................:.....«......_.._.__. 8021 - 8260 156-00-6 Eihene. l,2-dwhlaro-.(E)..... .............. .................. __._.._...._.. 8010 8021 8260 120-83-2. Pnerof, 2.4d(chloro..............___......._._.:._......:_._.:_._......_. '8040 . .. 8270 87-85-0 .Phenol, 2,8dfdiforo-.._._._.....__._«.__..__...........__-_...___._._. 8270 ' 78-87-5 Propane, 1.2-d7chioro-_....... _....__.............................. ... 8010 6021 142-28-9 Propane,. 1,34chforo-..... _...... _................ .......... :.............. __.__. 8024 8260 684-20-7 Pro➢ane, 2.2dichlaro-..... _ ...................................... ..._.................. 8021 8280 563-58-8 t -Propene, 4.1-dlchloro-.......... «._............. _... .......... :.......... ___. 8021 10061-0t-5 t-Pmpeno;. t,3-dlchloro-,8260 (2)•- .................................. 8010 8260 10061-02-8 i -Propene, 1,3diehbro•, (E)-- ............................ ........ .. _._ 6010 8250 60-57-1 2,7:J;&Dimetham ,3,4,5,8,9,9 -hexa,. 'BOBO ' 67.7a-octa yrens, ehfora-ie,,7a,3,6,6a,7,7aactahydra, (1ea,292aa,3Q, 8270 84-66-2 2-BemOne idarb .42•Bersenedfcarhozylic acid, diethyl ester ..................... 8060 8270 237-97-2 Phpsphomthidc acid, 0,0 -diethyl 0-pyradnyf ester ....... __..«..._.. 8141 8270 SQ -51-5 Phosphorodi)hloic acid. 0.04melhyl S-r2•(me8ryfa 8141 eater. 1m8w)•2- 8270 60-11-7 Benzene,N,Ndime8ryl4(phe:ryfam). _«.._._...... .... .__�... 8270 57-97-6 Benzralanthracene, 7,12 -dimethyl-. ......... .......... ......._.:...._.._.._ 8270 POL'(to/ 200 10 10 I 0.3 5 O.1 30 25 0.1 10 5 s til 2 5 0.5 10 6 10 5 5 0.2 10 5 10 2 5. OA 15 5 10 20 iW 0.5 5 1 0.5 5 0,5- 0.3 :50.3 5 4 05 5 ' 0.2 5 1 0.5' 5 5 10 10 0.5 045 0.3 5 0.5 15 0.2 5 20 10 6 10 0.05 10 5 10 5 3 20 10 1Q 51036 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations —Continued Cooxnon Name s Di-nactyt phthal Downylamine- Dnulfolon.— Endosullan 1..._ Endosuflan 11- Endoidlan salt Endon..._..— Endin aldahyM Etnylbalrzona_ EN =Umcry4 Ethyl moUlane; Fan4bm ._ FFwrsnthone.. Mu ons-..-.-. Hoptachlor— Hoplachlor apr Isobutyl CAS FIN a I Chemical abstracts service Index name 119-93-7 105-67-9 131-11-3 99-65-0 534-52-1 51-28-5 121-14-2 606-20-2 88-85-7 117-84-0 122-39-4 298-04-4 959-98-8 33213-65-9 1031-07-8 72-20-8 7421-93-4 100-11-4 97-63-2 01,1 r-Biphenyl)-4,41-diamme, 3,31-mmemyl-. Phenol, 2.4-crimethyl......................................... 1,2-Senzenedicarboxylic acid, dimethyl ester Benzene. 1.3-dinilro.......................................... Phenol, 2-methyl-4.6dimtm .............................. Phenol, 2.4dmitrc.............................................. Benzene, 1-methyl-2,4dinero- ...... _................. Benzene. 2-methy41,3diniho• ....................... Phenol, 2-(1-melhyiproPy1-4,e-mnitr0- .......... . 1,2-Senzenedicarboxylic add, dioctyl ester... Bermanarnme, N -Phenyl ........................... ....... 6,9.Methano-2,4.Menzomoxalhiepin, 6,7,8,9,10,10 -hexa - chloro -1 A5a,6,9,%a-herahydro-, 3axide, 6,9-Methano-2,4,3.benzodioxathiepin, 6,7,8,9,10,10-hexa- ch1oro-1,5,5a,6,9,9a-hexahydro-, 3 oxide, (3a,5aa,6p,9p, 9aa)-. 6,9.Melhanc-2,4,3-benzocri athiepin, 6,7,8,9,10,10.hexa- cNcro-1,5,5a,6,9,9a.hexahydro-,3.3-dloxidm 2.7:3,e-DimethanonaphthC2,3-b3oldrene, 3,4,5,6,9,9-hexach- Iorala,2,2a.3,e,6a,7,7a-cctahydro-, (1aa, 2)3.220,3¢,6., Ba0,7,3.7aa)-. 1,2,4Methenocyclepenlated)pentalene-5-cwboxaldehyde, 2,2a,3,3,4,7-hexachlorodephydro-, (1a,2p,2ag,4g, 4a0,50,ea0.6b0,7R *)-. Benzene, ethyl ................... .... ...... ..................... .................... ..., 2-Propenoie acid, 2-methyt-, ethyl ester B2-50-0 Methanesulfonic acid 52-85-7 Phosphorothioic acid, 77-47-4 67-72-1 888-7 591-78-184 tB3-39 965-73-I 78-59- 120-58- 143 -SO2 1,3-Cyctopenladiene, Ethane, haxachloro-. 1 -Propene, 1,1,2,3,3; 2-Hexanone .............. Ifdeno(1,2,3-cd)pyrei 1 -Propanol, 2 -methyl 1,4,5,0.0knethanona 1,4,4a,5,8,8a belts 2Zyclohexen-lane, 1.3-Benzodioxole, 5. 1,4,5,6,7,8,8-heplachloro-3a,4,7,7a- 2-b3oxbene, 2,3,4,5,6,7,7-heplach- ahydro-, (1aa, 1b0. 2a, 5a, 520, hexachloro- Sug- gested melh- ode• 8270 6040 8270 8060 8270 8270 8040 8270 8040 8270 8090 8270 6090 8270 8150 8270 8060 8270 8270 am 8141 9270 8060 8270 .8080 8270 8080 8270 8080 8270 8000 8270 8020 8221 8260 8015 8260 8270 9270 8270 8100 8270 8100 8270 8080 8270 6080 8270 0120 8270 8021 8120 8260 8270 .8120 8270 812C 8260 827C 827C 826C Bloc 8270 S0l, 824( 027( 8261 8091 8271 827( 8271 PDL)Yg/ 10 5 10 5 10 20 150. 50 150 50 0.2 10 0.1 f0 1 20 30 10 10 2 0.5 10 0,1 20 0.05 20 0.5 10 .0.1 20 0.2 10 2 0.05 5 5 10 10 10 20 200 10 200 10 0.05 10 1 10 0.5 10 0.5 5 10 10 5 10 0.5 10 10 10 50 200 10 50 100 20 10 60 10 10 20 0,0 -dimethyl ester. 206-44-0 Flumanthene............ _. 86-73-7 9H-Fiuorens...... _- ..... , 76-44-8 4,7-Methano-11,14ndar letrahydro-. 1024-57-0 2,&Metheno-21-i-inder laro-la,lb,5,5a,6,8a BR. Sao). 118-74-1 Benzene, hexachloro- 87-68-3 1 1,3 -Butadiene, 1.1,2,3 77-47-4 67-72-1 888-7 591-78-184 tB3-39 965-73-I 78-59- 120-58- 143 -SO2 1,3-Cyctopenladiene, Ethane, haxachloro-. 1 -Propene, 1,1,2,3,3; 2-Hexanone .............. Ifdeno(1,2,3-cd)pyrei 1 -Propanol, 2 -methyl 1,4,5,0.0knethanona 1,4,4a,5,8,8a belts 2Zyclohexen-lane, 1.3-Benzodioxole, 5. 1,4,5,6,7,8,8-heplachloro-3a,4,7,7a- 2-b3oxbene, 2,3,4,5,6,7,7-heplach- ahydro-, (1aa, 1b0. 2a, 5a, 520, hexachloro- Sug- gested melh- ode• 8270 6040 8270 8060 8270 8270 8040 8270 8040 8270 8090 8270 6090 8270 8150 8270 8060 8270 8270 am 8141 9270 8060 8270 .8080 8270 8080 8270 8080 8270 8000 8270 8020 8221 8260 8015 8260 8270 9270 8270 8100 8270 8100 8270 8080 8270 6080 8270 0120 8270 8021 8120 8260 8270 .8120 8270 812C 8260 827C 827C 826C Bloc 8270 S0l, 824( 027( 8261 8091 8271 827( 8271 PDL)Yg/ 10 5 10 5 10 20 150. 50 150 50 0.2 10 0.1 f0 1 20 30 10 10 2 0.5 10 0,1 20 0.05 20 0.5 10 .0.1 20 0.2 10 2 0.05 5 5 10 10 10 20 200 10 200 10 0.05 10 1 10 0.5 10 0.5 5 10 10 5 10 0.5 10 10 10 50 200 10 50 100 20 10 60 10 10 20 Federal:Regisberj .Yol. 56, No. 196 f m 1. October 9, 1991 Rules and 51037 —Continued Common Nam = CAS Fj N 3 Chemical abstracts Service index nerve PDL (rgl moth. Q ods Lead............................. ...... ............ ............................................ (Tote . 0 Lead.._....._..._- ............. . ...... ....... . ................................. 6010 400 Mercury .......... ........ ... ................. (TotaQ Mercury 7420 7421 1000 10 MslhacryloniiiW_­..'...'.'* ... . ..................... . ....... ...... 126-98-7 8 ............. .. . ....... . ... 2 -Pro .161, ....... . .......... . ..... ................. . . Parent . 2-rrethyl. 7470 Methapyriene ... ­.: ....... . . .. . ................... . ......... ............. i ............ . 91-80-5 ................ . .............................._.»44_4_4 U -Ethanediamine, N-N-dimethyl-NI-2-pyddinyl-NI/2-thienyl- 8015 8260 100 Metboxychl,, ..................._».... / methyl), 8270 100 ............................... . ..... I .... ....... 72-43-5 BOTOXITH3.1.1 '-(2,2Atflchl ... thylIdIIQbiI(4.m,thOXY . ..... . ...... 8080 2 Methyl bromide; Bronmernothane ............. .... ....... ............. 74-M-9 Methane, brome, 8270 10 Methyl chloride; Chloaxnalhane ................ . . . ... ................. _ . ............ 6010 8021 20 10 .....................................». ... 74-87-3 Methane, chloro-.......................„. 3-Methylchotanthmn . ...... .............. .................... . .... . ... . ................ Methyt ethyl keitone: MM 2-Butmone_.....4_444...:._...._ 56-49-5 B0=143amenthrylene, 1.2-cf1hydre-3-mthyl. ......... : 8010 8021 8270 1 0.3 ............... 78-93-3 ....... ...... 2-BuWcna 10 MethYl loclicle; l6clonnethare_ ............. . .................. . ............ 74-884 ......... . ...... ........... . ....... . .. . ........... . ........ .. Methane, lode, 1 Solis 8260 10 100 Methyl motha&yfat . ..... ........... .. ........ .............. ........ . ... . ........... .... - 11010 8260 40 10 ........ . ............ ................... % ........... ... 80-62-6 2- Properoic acid. 2 -methyl, mothyl eater . Methyl methanesulfonate._ .......... . ............... . ................ ZMethyfnaphthrdene 66-27-3 . ..... .......................... . . I Mathenesufforic acid, ethyl ester..........._._:.. 8015 am 2 ad .. . .... . . ..................... Methylparathlorn Paradhion mathyi..' . .... ........................ . .. ..... I .. . .. . ............................. . 91-57-6 2911-00-0 ...... . Naphihl,,,,, 2-mathyl ..... . . ..................... ........... ........ Phosphonothiolo acid, 0.0 8270 8270 10 10 . -dimethyl 0-(4-dh';�.nyl) ater ....... 8140 0.5 8141 1 41-Meftl-2-pentancne; Methyl lsobutyl ketone......_:...._......... ..... 108AG-1 2,Panta I none. 4 -methyl- 8270 io M, ethylene bromide: Dib�ornometftane ...... I ............ . ... . ... . 6� ...... ........... . 8015 5 100 .......................................... 74-95-3 Methane,dibronne. .. . ......82M .... . . .................... ...................... . .. solo -15 Methylene chloride; hicride; Dichloromethane 6021 8260 20 10 ........ . ....... ......... . ............. 75-09-2 Metha cro. ................ .............. . .......... .... ... . . ............ solo 6 • Naphthalene ............. ..... . ............ . .. 91-2D4 Naphthalene_:.......-_._.......... .8021 8260 0.2 to . . .. . .................. ..... . ............. ...... 8021 0.5 8100 200 I. 4-Naphthoqulnonm__;.._:__ . . ......... ......... . ................ 1-Naphthylamine»444_......._.4 130-154 I. 4-Naphihalonedone.-.....;.........«.444_4.-444_4-..«............_.. 82rO 0270 5 10 . ..... . ....... . ....................... .. : ........ ........ 2-Naphthylarnim ...... ....... .. 134-32,7 ......... . ... . ...... ..... ............ . .. , �Naphthalsnarnine: 1 ... . ........... . ........... ............. ............. 8270 8270 10 10 . .. Nickel ...............«. ....... . ... I ................... . .......... . . . . .. . ............... 91-59- 454 N . 1 2- aphthalerrarrL . . ................ : .... . .. . ........... 8270 10 ... .................. . ............... (Total) Nickel .............. ...... _._ .......... ....... ..... . ................... . .. . ........ 6010 150 • o-Nitroanigne; 2-Nitroanillne... ........... . .. . ............ .......... . .. . . ; ......... m-Nitroanfline, 3.1,11troanih, 8 8-74-4 i 2 -nitro- 7520' 400 P-Nibrowdrinw, .. ......... ......... . . . ............. . 9 9-09-2 ....... V: ......... ........... ............ . ... __ BermevounTne, 3-r4t,, ............ . ....... ............. . 4 . .......... 8270 • 8270 so so ............ . * ...... ...... .....%.......... Nitrobeyoa,, . . .................. . 100-Oi-S . .. Bezuerrarline. "tire .... . .. ... . . ......... *'** ........ . . 20 .. . .................................... 98-954 Benzene, O'NarcPhanol; 2-Nitrophenol ............._.......L.:.......... ....... . . ........... 8090 �8270 40 10 . . ...... . .88-75-5 Phenol, 9 -nitro, ..... . . ........ . ..... . .... . ......... ............ .8040 5 P-1,11froPherrol; 4-Nitropherml . . . 8270 10 . ....... . . ............. ........ I ........ . ... I 100-02-7 Phenol, 4-njt,,_...................4444..„„.._. ................._..I........................ 8040 ' N-Nitroaodi.r�blutylarnlne ...... . I 8270 50 4. ...... 4 ............. . . . ........ N-Niselrodlethylarnim.... .. .. . ...... 924-16-3 i-Ekdanernine, N.butyl-N,nitro� ... ....... ...... .......... 8270 10 . ........... ........ ....... ......... N-Nitrosocrimethylamnine, . . ................_......4444..................._....... 55-18-5 Etheflafnine, N.8ftI­N­nitro&o_... ................. . . ...... 8270 20 ... N-Niftsodiphanyfarrine .... ... 62-75-9 MOtimaeline, eozo 2 1.4 ... .... . . . .............. . 4 ..... . I ..... N:NitroaoolprcI3yjaMtnG; N-Nitroso-N-dipropylarnin,; 8640-6 Semenamine, N-nitroso-N-phanyl-., ...... . .. . . ................ .......... 8070 s DI ­n -pro- Pyinilrosarnine. 621-54-7 I-Proparamine, N.nftrc�N-propyl-.._,. . ....... . .......... ........... 8070 N-Nitrosomethoethalarnine........................._......4...................10 .... . ... N.Witrbsopiparicline, ... ........................... 10595-95-6 "me Etharmunim. N th-AN-nitroso.� ........... .. 4.- ........... .... ..... 8270 10 4 .. . . .... ................... 4 ............ N -Nitros ......... .... ....... 100-75-4 Piperldne, I- nitroso- ....... . ........ ...... .. . ......... 8270 20 ... 4 ............ - 4 .... 1.4 S-Ni(ro�toliuTdno .... ........... ..........S130-55-2 PYffolkrme, I.nitroao•_­. . .... ....................... m ........ 4... 8270 40 Parathilan ....... . .. . ...................«44_44.._.„._..._.:_. ..... 4 .... ...................._4......:... 99-56-8 BOMOr"ne. Zmethyl-5-nIt� ...... . . ....... 4.4 .................. ­ 8270 10 . ...... ........56-38-2 Phosphorothrok, acid, 0,0 -die 0-(4nitrophary) ester:__... 8141 0.9 Pentachimobenzene ..... ................... Pentachloronilrob,,,, ................................. ............ ene... 608-93-5 Bermene, pentachloro- ............. . ............ ............ •........ 8270 8270 10 ....... I .......... 4 ............... . .... . ..... 4 P611tachlorophanol . ... ...... ................. 82-68-8 ........... Bermane. pentachlorodtn, ...................... 8270 10' 20 . . ...... 4 ......... . . .... . . •8746-5 Phenol. Pentachlorc,__, ............ 4 ........ . .. . ....... 4444...«. .. 8040 5 Phonacefln.' .......... ................... Phenanthrene--- 62-A4-2 Acelamida, N-(4­ethoxyp6nQ_, .... . . ........... 4-44-4-4 ..................... 8270 8270 so : ................. ... . .... ......... . .... . ....... 65-01-8 . Phorranthrom., ....... T"11111*1 ...... . ......... :___ . . ......... . ........... 8100 20 200 Phenol_,.....„......._:..................4................ .. .. ...... 4 .............. P-PhanYlOnecliannine»......................._...__:_...........444 108-95-2 Phenol .... ......... . 4 .......... . ........... 8270 8040 10 Phorato4 ...... . ........ ........... ...................... . ........ .......... i . ............ X .. . .... . ........... 10640-3 298-02-2 IA-Bamenadfaming.... Phospho(odithloic acl�­E ...... --,4,* ...... *,*,4,* . ........... * ............ .... . ... -diethyl S-1(cthylI*)meV*3 ester.. �Bvo 614o 1 ID .0 8141 2 05 8270 51038 Federal Register / VOL 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations —Continued - Canon Name' I CAS RN' I Chemical abstracts service index name e Polychlalnalod blphanyls: PCBs: Pyrene Ulm See Nate 9 1,1' -Biphenyl, chloro derivatives 23950-58-5 Benzamide, 3,5-dlcNoro-N-(1,1- 107-12-0 Propanenitrile............... _........... 129-00-0 Pyrene ............................ ..... ....... 94-59-1 1,3-Senzodmxo1e, 5-(2-pmpeny (Total) Selenium.......... .............. _.... _.., (ictal) Silver ... :..... .............................. ..... 93-72-1 Propanoic acid, 2-(2,4,5-Iriohlo, 100-42-5 Benzene, ethenyl.. ..................... 18496-25-8 1 Sulfide......... 93-76-6 Acetic add, 95-94-0 Benzene, 1, 630-20-9 Ethane, 1,1, f,1,2,2•TeOaehlaroe9larfe__............. ._...... _.............. _..... ............ 79-34-5 Elhana, 1,1,2,2•tetraehlcro- TalndhMrceOhylane; TatracNaoethenel Pachloroethyteae ...... 127-18.4 Ethene, telrachloro............ W.4,6•TobacMaophanol.-«......... _... «.............. .................. _......... . 58-90-2 Phend, 2,3,4,"etrachlo1`0� Thal9um....«._....—..«..«............ «.._....... ................ ..__,.... _....... (Total) Thaltum,...._................ _..... . Ta.......,«««_.__«_.— ..... ._....................... ................ .- (Tolal) Tin- ....... ._................_._-. Toluetro---_.....«_....._...«......................._.._.._..._... 108-88-3 Benzene, methyl - ............... . o-Tduliwa«_«—...__...._...._._.. .. .-------.....----. _---------..-..--.. 95-53 Senzenamine, 2 -methyl._. .-.__...._.....-...._..____........._.._-.«........ Seo Note 10 Toxaphene__.._-..:«-._.---. 1.2,4TdcMaohonzena.«.............._.._......_,«.._.«............._........._. m4-Tone«rcloom 120-82-1, Benzene, 12.41richlaro-... 1,1,1•TrkMaroethene; Mathylchlorotam.._.......... _...............«.. 71-55-6 Ethane, 1,10-Mchlcro-...... 1.1.2•Tr1chlorca9wrw..._.-...... ....... .-.«........ _._..... ......... ........... . 79-003 Ethane, 1,1,2•trichiorc-..... TricMaooNytone: Trichbmelhene.._................ .._................... 79-01-6 Ethane, trichloro- ......... ..... Trldicralluoromethene; CFC -11 « ....... _.............. ...:........ «_........ 75-694 Methane, trichloro0uoro-.., 2,4,5-TrkNaoPlarrot__._........ .............. -...........-..._._..........._. 95-954 Phenol, 2.4,5-trichloro•..... 2,4.8-TdcMaophanol... ._.._.................. ........... _......... ................. 88-06-2 Phenol, 2,4,8-trchloro-_.. 1.2,3•TrkMaOpropane..«_.._................ ..................... I ................... . - 96-18-4 Propane, 1,2,3-trlchloro-... 0,0,0-Tdolhyi phosphorothloale.._..«............ ..................... - ........... . 128 -BB -1 Phospharothioic acid, 0.0, ty111•Trlr4lrOhWlZona.._..«.............._...._....«...................«._......... 99.751 Benzen9. 1.3.&trinitro•..... Vuudium..._.__«.__...._...__._......_...._........ (Total) Vanadium ........................... 1Vw acetate ........................................................... 108-05.4 Ace9c acid, ethenyl ester VkrA dkrida: Chtcroethene._-....... _........................ ........... .... . 75-61-4 Ethane, chloro .................. %ylaha (btat).._._._.__.._.............................. ...... .......... See Nota 11 Benzene, dunethyl-......... (Total) Sug- gested meth- ads" PQL "I L) ...._.._... 8080 50 8270 200 ............. 8270 10 ...... _..... 8015 60 8260 ISO .............1 8100 200 8270 10 .............. 8270 10 ._.... -....... 6010 750 7740 20 7741 20 .............. 6010 70 7760 100 7761 10 .... _....... 6150 2 ..._._... 6020 1 8021 0.1 8260 10 ................ 9030 4000 .._...... - 8150 2 .......... ..... 6270 10 ................ 8010 5 8021 0.05 8260 5 ................ 8010 0.5 8021 0.1 8260 5 .........:...... 8010 0.5 8021 0.5 8260 5 ....... 8270 10 ..._.......... 60101. 400 7840 1000 7641 10 40 ............... Sol 8020 2 8021 0. t 8260 5 ....._._. 8270 10 ,,,_._.... 8080 2 ....._ 8021 0.3 8120 0.5 8260 10 8270 10 .............. 8010 0.3 8021 0.3 8260 5 .................. 6010 0.2 8260 5 .................. 8010 1 8021 0.2 8260 5 ........... 8010 10 8021 0.3 8260 6 .......... _...... . 8270 10 ................. 8040 5 8270 10 ................. 8010 10 8021 5 8260 15 .................... 8270 10 .................... 8270 10 ................... .' 6010 81: 7910 2000 7911 40 .................... 8260 50 ................... 8010 2 8021 0.4 8260 10 .......:... ...« 8020 5 8021 0.2 8260 5 .................... 6010 20 7950 50 7951 0.5 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations 51039 *The regulatory requirements, pertain Do also footnotes 5 MCI 6. ty to the list of substances; the right hard columns (Methods and PDL) are given for informational purposes only. See 'Common names are these widely used in government regulations, act entgc publications. and commerce; synonyms exist for loony chemicals, ASIndChemical are tit is Servicer the 9t Coll number Where "Total" is enl¢retl, all species in the ground water that contain this element are incfuded CAS intlex are those used in the 901 Collective Index ° Suggested Methods refer to analytical procedure numbers used In EPA Repan SW446 'rest Methods for Evaluating Solid Waste", third adiflon, November 1986,.as revised, December 1987. Analytical details can be found in SW -646 and in documentation on file at the agency. CAUTION: The methods listed are representative SW -846 procedures and may not always he the most suitable methods) for monitoring an analyte under the regulations. °Practical Cuentiffiflon Limits.(POLs) are the lowest concentrations of analytes in ground waters that can be maliably determined within speed Omits of precision and accuracy by the indicated methods under routine laboratory operating conditions. The POLs. Tilted are generally stated b one significant figure.'POLs are based on 5 mL samples for volatile organics and 1 L samples for semivolatile organics, CAUTION: The POOL values in many cases are based only on a general estimate for the method and not on a determination for Individual compounds; POLs are notaart of the regulation. chloro- AS AN 39638-32-I This substance Is 9)ealled eis(2-chloroisopropyl) ether, the name Chemical Abstracts SeJvCa appImt to its noncommercial isomer. Propane, 2,2"-axybis(2- Chlordane: This entry includes alpha -chlordane (CAS AN 5103-71-9), beta -chlordane (CAS AN 5103-74-2), gammachlordane (CAS RN 5566-34-7), and constituents of chlordane (CAS AN 57-74-9 and CAS AN 1..789-03-6). POL shown is for technical chlordane method 6270. . POLs of specific Isomers we about 20 µg/L by phenyls ° r 1221 (CAS A 11104- (CAS AN 1336-36-3); Ltiis category contains congener chemicals, including constituents of Arodar 1016 (CAS RN 12674-11-2), (CAS r 1221 (CAS AN and Ar cl-2), Ar6c1M 1232 (CAS RN 11141-16-5), Afoder 1242 (CAS RN 53 cludin -9), Arocbr s of (CAS AN 16 (CAS Arodor 1254 (CAS AN 11097-e: This and Arodar 1260 (CAS AN 11096-82-5). The POL shown is an "era 53469-21-9). for PCB congeners. i. Toxaphene: This entry includes congener chemicals contained in technical toxaphene (GAS AN 8001-35-2), i.e., chlorinated camphene. xylane M1aD: This entry Includes c -xylene (CAS AN 96-47-6), m -xylene (CAS RN 108-36-3), p -xylene (CAS AN 108-42-3), and unspecified xylenes a 82t�hylhenzehas) (CAS AN 1330-20-7). PQLa for method 6021 ere 0.2 for c -xylene and 0.1 for m- or P -xylene. The POL for m -xylene Is 2.0 µ91L by method 8020 Appendices to the Preamble Appendix A—[Reserved] Appendix B—Supplemental Information for Subpart A—Gerteral Subpart A discusses the purpose, scope, and applicability of part 259 (§ 258.1). It provides definitions necessary for the proper interpretation' of the rule (§ 258.2), and indicates that there are other Federal laws and rules with which owners and operators of MSWLFs must comply. 1. Section 258.1 , purpose, Scope, and Applicability - Part 258 sets forth minimum national - Criteria for the location, design, operation, cleanup, and closure of - municipal solid'waste landfills. An ' MSWLF that does not meet these Criteria will be considered to be . engaged in the practice of "open dumping" in violation of section 4005 of RCRA. Moreover, MS' WLFs failing to satisfy these Criteria will be deemed to be in violation of sections 309 and 405(ej of the Clean Water Act if they are receiving sewage sludge. The purpose of part 258 is to establish minimum national Criteria for municipal solid waste landfills, including MSWLFs used for sludge disposal. The Criteria do not apply to owners and operators of MSWLFs that have stopped receiving waste as of October 9, 1991 (see. § 258.1(c)). Owners and operators of MSWLFs that stop receiving waste between October 9, 1991 and October 9, 1999 are exempt from all of the requirements of part 258 except the final cover requirements cited in § 258.1(d). Finally, MSWLFs that receive waste on or after October 9, 1991 must comply with all of part 258 unless otherwise specifically exempted, e.g., the small communities exemption contained in § 285.1((). , The effective date of part 258 is October 9, 1993, except for two - provisions: (1) The ground -water monitoring provisions of § § 258.51– - 258.55, which are phased infor existing MSWLFs and lateral expansions over a five-year period beginning on October 9, 1991, in accordance with § 258.50, and (2) the financial responsibility provisions of subpart G, which are effective April 4,1994. The proposed'§ 258.1 was the subject of extensive and substantive comments. These comments, and EPA's response to the comments, are addressed below. a. Closed Facilities - The proposal excluded "closed units," from the revised Criteria. "Closed units were defined as "" •- ` any solid waste. disposal unit that no longer receives solid waste as of the effective date of this part and has received a final layer of cover material." The Agency proposed this approach for several .. reasons. First, as discussed fa the preamble to the proposal, identification of "closed units" would be difficult, time consuming, and complicated by such issues as changes in ownership. Second, the inclusion of inactive facilities would - dilute the already scarce technical and financial resources available to the States. Moreover, other' authorities and . resources are available to address inactive facilities that are creating environmental hazards. For example; abandoned MSWLFs releasing hazardous substances that pose a threat to human health and the environment can be addressed using authorities under the Comprehensive Environmental Response, Compensation, and (lability Act' (CERCLA). . Several commenters argued that EPA should distinguish between those facilities that have closed as of promulgation of the revised Criteria and those that continue to receive waste after today's date, but stop doing so prior to the date .the toles take effect.' These commenters were concerned that some MSWLF owners or operators would take advantage of this window, Perpetuating problems that could compromise human health and the environment. Specifically, several commenters_ urged that liquid restrictions, ground -water monitoring, and final cover requirements shouldbe applicable to facilities that cease _ receiving waste in the window between the date of promulgation and the effective date. -Commenters argued that this approach was more protective of human health and the environment than allowing MSWLFs that close during the window to be exempt from all the revised Criteria: To address these concerns, EPA is today distinguishing between (1) those facilities that stopped receiving waste prior to the date that the rule is published in the Federal Register, and (2) those MSWLFs that stop receiving waste in the window between the date of publication and the rule's effective date. MSWLFs in the first category will remain outside the scope of the revised Criteria. However, EPA is today requiring the second category of MSWLFs to install a final cover as specified under § 258.50(a). The cover must be completely installed within six months of the last receipt of wastes. Owners ind operators of MSWLFs that stop receiving waste during the window but that fail to finish cover installation within six months of the last receipt of waste will be subject to all of the requirements of part 258. EPA also eliminated the proposed definition of "closed unit" from the final rule, because the definition was unnecessary given the revised rule language added to respond to comments described. The - 51040 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations Agency believes the regulatory language In today's final rule clearly spells out both the exclusion and the regulatory requirements for facilities that stop receiving waste behveen the promulgation and effective dates. EPA decided to distinguish between the two categories of closed facilities for several reasons. EPA never intended to include within the scope of the revised Criteria Inactive MSWLFs that stopped receiving waste prior to the date of promulgation of today's rule for the reasons cited previously, and most commenters agreed. On the other hand, the Agency agreed with comments that some regulatory requirements for facilities that stop receiving waste between the date of promulgation and the rule effective date would curtail continued problems. In particular, EPA agreed that, ifclosed without the benefit of final cover, facilities would continue to be exposed to precipitation, which would result in Increased generation of leachate. The cover requirement in today's rule will restrict the introduction of liquids into the landfill, thereby limiting the production of leachate: Today's final cover requirement is consistent with many Slate programs and, therefore, EPA does not believe that it will cause signiFicanf impacts on owners and operators ofMSWLFs. EPA rejected the idea of subjecting these facilities to additional requirements for several reasons. MSWLF owners or operators budget for facility upgrades or closure requirements by setting aside fonds during the operating life of the facility. The 18 -month time period between the date of publication and the rule effective date Is not a sufficient period for many owners or operators to raise the capital necessary to install a ground -water monitoring system. Thus, the "practicable capability" of these owners or operators to install such a system is severely limited. Uquids restrictions requirements would not be necessary after the cover was installed, elute there would no longerbe any contalnerized or bulk liquids disposal and the cover would minimize the introduction of precipitation Into the landfill. b. Controls on Municipal Waste Combustion The proposal extended the applicability of the Part 258 Criteria to landfills that receive municipal waste combustion (MWCJ ash regulated under subtitle D (i.e.. not otherwise regulated under subtitle C as a hazardous waste). This would include monofills that receive only such MWC ash as well as landfills that co -dispose such MWC ash with regular municipal solid waste. EPA noted, however, that action was pending in Congress on legislation dealing specifically with the management of MWC ash. In addition, EPA asked for comments on the adequacy and appropriateness of the proposed requirements to MWC ash disposal. On November 15, 1990. the President signed the Clean Air Act Amendments of 1990. Section 306 of the act exempts MWC ash from being regulated as a hazardous waste under subtitle C of RCRA until November 15, 1992. The I ntent of this provision was to provide time for Congress to clarify the regulatory status of MWC ash during the reauthorization of RCRA. Previously, Congress had considered legislation that, if enacted, would have required special management standards for MWC ash under subtitle D of RCRA. Because this rule is not effective until after November 1992, the applicability of this rule to MWC ash will be affected by Congressional action on this issue and a pending decision on a federal district court appeal regarding the regulatory status of ash.a Until November 1992, MWC ash disposal is subject to the existing solid waste disposal criteria under 40 CFR part 257. In addition, some States have regulations governing the disposal of MWC ash. c. Rule Effective Date The Agency proposed a uniform 18 - month effective date for the revised Criteria, with the exception of the ground -water monitoring requirements, which were to be phased in over a five- year period following a schedule developed by the State and financial assurance. EPA proposed to make all requirements (except ground -water monitoring) effective at the same time to avoid confusion and to simplify implementation. However, EPA specifically solicited comment In the proposal on the merits of phasing in the requirements over time, rather than uniformly. Under that approach, "self - implementing" provisions (e.g., liquids restrictions, hazardous waste screening) could be effective in less than eighteen months, perhaps within six or twelve months, but the remaining requirements would be effective at 18 months. Many commenters were to agreement with the Agency on the usefulness of the uniform effective date. However, several commenters were concerned that 18 months would be insufficient time for r Envtronmentol Defense Fund, Inc. v. City of Chicago =.W. 1969) concluded that MWC ash is exempt fromregulatlon under subtitle C as a hazardous waste If the combustor sathiries the criteria of RCRA section 3001(1). This decision has been appealed. owners or operators to acquire capital necessary to fund changes in facility operation or design, or for States to revise their solid waste management laws and to promulgate their own regulations. In particular, many States commented that EPA should lengthen the uniform effective date of 18 months by a significant time period to reflect the time needed to change State laws, revise State regulations, and have their programs approved by EPA. These commenters suggested alternative dates ranging from 24 to 48 months. However, other commenters supported phasing in some self -implementing Criteria prior to the 18 -month date, because it would be more protective of human health and the environment. EPA still believes that a uniform effective date, except for ground -water monitoring and financial responsibility requirements, is an important aspect of the rule's Implementation. However, after closely evaluating the comments received which questioned the wisdom of imposing an 18 month effective date for most provisions of the rule, EPA had decided to extend the effective date by six additional months. As a result, other than for ground -water monitoring and financial assurance requirements, all provisions of the rule will become effective 24 months after the rule is published in the Federal Reqister. The Agency is adopting a 24 month effective data instead of the 18 month period contained in the proposed rule for two reasons. First, owners and operators and other commenters stated that the 18 month period did not provide sufficient time for facilities to have sufficient capital and resources to comply with the rule requirements. To _ • deal with these concerns, commenters suggested that the rule become effective in anywhere from 24 to 48 months from the date of'publication. EPA has decided to provide an additional six months before the rule becomes effective to assure that owners and operators have sufficient time to comply with the extensive requirements contained in the final rule. As explained elsewhere, EPA has also decided that the ground -water monitoring requirements will be phased in over a five year period and that the financial responsibility requirements will become effective in 30 months. Secondly, while RCRA section 4005(c) requires States to adopt and implerdent a permit program or other system of prior approval within 18months after the revised landfill criteria are promulgated, EPA recognizes that even if States are able to meet that statutory deadline the Agency will still need time to evaluate and make a determination Federal Register I Vol. 56, No, 196 / Wednesday, October 9, 1991 / Rules and Regulations 810,11 as to the adequacy of the State permit program in accordancawith RCRA section 40o5(cl(l)(Cl. ObtainingEpAs approval of a State permit program is an important element in the implementation of the revised criteria because many of the rule's provisions are tied to whether a State has a permit program which has .been approved by the Agency- Six additional months will provide EPA with time thatmay be necessary to review the ' adequacy of State permit programs. . EPA next considered whether certain requirements should be effectivaprior to 24 months or, for groudd-water monitoring; bb a different schedule from the five year phase-in period. EPA was not persuaded to change the ground- water monitoring effective date because' the Agency believes the five-year period is needed to ensure there are sufficient trained personnel and Installation equipment available to complete monitoring system'installation-EPA's rationale for the five-year phase -'in period is described in more detail to. ' appendix F As a general matter, EPA concluded that applying a significant ' number of requirements before 24' months would give owners and operators insufficient time to incorporatethe requirements into their - operations. However, EPA was persuaded by commenters who ' indicated thatfacilities that close in the window between the promulgation date and the effective date (i.e., 24 months) should comply with minimum final cover requirements. Therefore, as described earlier in this section, today's rale applies this one'requirement to facilities before 24 months. EPA also evaluated whether other requirements besides ground -water monitoring should be effective later than 24 months. The Agency determined that a later effective date was, necessary for the financial responsibility requirements because, as discussed in appendix H, EPA has decided to develop a special financial test for local governments. Therefore, to allow time for this rulemaking, EPA has set an effective date of 30 monthsfor this section of the rule, 2. Section 258.2 Defmitians Major comments on. the proposed definitions centered on three teams. The comments, and EPA s response, are highlighted below. Aquifer. Accordfag to the proposed rule, "aquifer' is a geologic €ormatica, group of formations. or portion of a formation capable of yielding significant quantities of ground water to wells or springs- Several commenterssu$,ested that the proposed. definition was . . .ambiguous and that "aquifer" should be . redefined. Other commenters suggested specific values for the aquifer"yield capability," After reviewing and eyaluating the comments;,the Agency has decided to retain the definition of "aquifer" as proposed. EPA believes that the quality and value of the aquifer should be a site specific determination. The Agency is - opposed to judging the resource value of an aquifer based on a generic scale of significance, both in terms of quantity and quality, because of the'variability of aquifers on a site -by -site basis. The Agency believes it is more appropriate that such judgments be made on a site- specific hasis. Closed unit. The proposed rule defined "closed unit" as any solid wasta disposal unit that nolongerreceives - solid waste as of the effective date of _ this Part and has received a final; layer of cover material" This definition was dropped from the fund rule because it was confusing and, as discussed in the section on closed facilities above, because It is now unnecessary given the rule changes to § 258,1". Existing Unit/Lateri iFxpansion• The Proposal defined "existinq unit" as any solid waste disposalnnit that is receiving solid wasteas of the effective date of part 258 and has natreceived a final layer of cover material, and "lateral expansiod' as a horizontal • expansion of the waste boundaries of an existing landfill unit. - Several commenters requested that the Agency clarify the definitions of "existing unit" and/or "lateral - expansion•,"because as proposed, a cle ar distinction was not made on the definitiva:llmits or extent of an "existing unit," and how lateral expansions of existing units after the effective date would be regulated. Commenters recommended that the Agency consider the entire permitted landfill area - (including those areas currently without waste). to be an "existing unit." Lateral expansion of such units would be only those outside the original permitted area. Alternatively, other commenters supported designating the "existing unit" as the area of landfill space . actively receiving waste as of the effective date. Any enlargement of this area would be considered a "lateral expansion' and regulated as a "nein unit.,, EPA agreed with, commenters that as proposed, the definitions were not clear. The Agency considered defining "existing unit" as the eatire, originally permitted landfill area (inclasive, of areas not yetreceiciag waste on the effective date). An extension of this "existing unit" beyond the original . permitted area would be,a "lateral. expansion." EPA rejected- this approach because of the high. degree of variability of permitted landfill areas throughout the country. Some State agencies permit landfills only on a unit -by -unit basis, whereas others permit the entire area expected to receive waste during the landfill life. EPA believed some landfills. would have large aieas not subject to the revised Criteria, thus significantly reducing the protection of human health and the environment. The Agency also considered the alternative proposed by commenters, i.e., defusing "existing mtie' as the . landfill area that is receiving waste as of the effective date. This definition is the same as proposed with the exception 'thatthe reference to a final cover requirementis deleted. While this alternative was preferable to the proposed definition, the Agencywas concerned that owners andoperators .would spread wastes overlarge portions of their facility prior to the effective date so that such Portions would be deemed . ".existing units' and not be subject to certain requirements of today's rule. To address this concern, EPA added`' language specifying that expansions to an "existing unit" wouId have to be - consistent with past operating practices or operating practices modified to - ensure good management. The Agency believes this added provision ensures that owners or operators ivi)f not prematurely enlarge their facilities to avoid compliance with portions of the revised Criteria, but at the same time, accounts for legitimate landfill enlargements or changes in facility operations resulting from additional waste volumes. - Therefore, in today's rule, the Agency. elected to revise the definition of "existingunit"to"* `''mean any solid waste disposal unit that 'is receiving solid waste as of the effective date of this part. Waste placement in existing units must be consistent with past operating practices or operating practices modified to ensure good. management"Thisapproach to. revising the definition of "existing unit" did not. require that the definition of "lateral expansion' be changed loom that contained in the proposal. 3. Section 258.3 Consideration of Other Federal Laws The Agency received two comments, on the proposed f 258.3, which provided that the owner/operator of an MSWLF' comply with any other applicable Federal laws, &eo dations; or' - requirements. This section recognizes that there are other Federal statutes and 51042 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations programs that must be considered in. ailing, designing, and operating h1SWLF9 and serves as a reminder to the MSWLF owner/operator that such requirements mustbe met. The preomble to the proposed rule noted a number of applicable Federal statutes, including the Clean Water Act and Clean Air Act. One commenter suggested that EPA should maintain consistency among the biSWLF requirements and other requirements established under Federal statutes like the Clean Water and Clean Air Acts. This commenter proposed that EPA provide guidance to permit writers and regulators of other Federal programs on the unique nature of MSWLFs. Another commenter expressed concern that § 258.3 implied that the State solid waste agency would be responsible for ensuring compliance of the MSWLF with other Federal requirements. This commenter wanted to make it clear that the MSWLF owner/ operator is responsible for compliance with any other Federal requirements and that the Stale solid waste agency is not the clearinghouse for all these other requirements. The Agency agrees with the points made by both commenters. EPAhas attempted and will continue to attempt to ensure consistency among the requltemenls in the revised Criteria and other requirements under Federal law to the extent authorized by statute. EPA Intends to include information on the applicable requirements under other Federal statutes in the technical guidance that EPA is preparing for this rule. Finally, the owner or operator, not the State, is responsible for ensuring compliance with these other Federal requirements. The State, however, may be involved to the extent these Federal " requirements are incorporated and Implemented through State regulatory programs. Appendix C—Supplemental Information for Subpart B—Location Restrictions The proposed Criteria specified restrictions on siting MSWLF units for six types of locations that the Agency believed warranted control, in order to protect human health and the , envlronmenL These six location restrictions have been retained in the final Criteria with some modifications. The six are: MSWLFs In the vicinity of airports and in 100 -year floodplains, wetlands, fault areas, seismic impact zones, and unstable areas. Two of these locations, sites near airports and floodplain, are included in the existing part 257 Criteria. This Appendix summarizes the proposed location restrictions, provides a review of the public comments received, and explains the Agency's approach and rationale for today's final location criteria. The first subsection below discusses and provides the rationale for the differences in the location restrictions for new MSWLF units, existing MSWLF units, and lateral expansions. Differences in Location Restrictions for Existing Units, New Units, and Lateral Expansions Several commenters raised concerns as to why the Agency applied certain location restrictions to new MSWLF units and lateral expansions, but not to existing MSWLF units. Specifically, commenters stated that they believed that the proposed location restrictions for wetlands and fault areas should be applicable not only to new units and lateral expansions but also to existing MSWLF units. Consistent with the proposal, the Agency is subjecting existing units to only three of the location restrictions— airport safety, floodplains, and unstable areas—in today's final rule. Existing units are subject to both the airport safety and floodplains location restrictions because these two criteria are essentially the same as the existing part 257 Criteria, which have been in effect since 1979. Because owners and operators of existing units already should be in compliance with these Criteria, EPA believes that applying these location restrictions should not cause a significant humor on the disposal capacity, while continuing to provide protection of human health and the environment. The Agency decided to apply today's final unstable area location restriction to existing units, because the Agency believes that the impacts to human health and the environment that would result from the rapid and catastrophic destruction of these units outweighs any disposal capacity concerns resulting from the closure of existing MSWLF units. On the other hand, EPA did not Impose requirements on existing MSWLF units in wetlands, fault areas, or seismic impact areas. The Agency believes that disposal capacity shortfalls, which could result if existing landfills In these locations were required to close, raise greater environmental and public health concerns than the potential risks caused by existing units in these locations. If existing MSWLF units located in wetlands were required to close, there would be a significant decrease in disposal capacity, as approximately six percent of all existing MSWLF units are . located in wetlands. (This estimate was developed by correlating maps of wetland areas with MSWLF locations.) In addition, wetlands are more prevalent in some parts of the country (e.g., Florida and Louisiana). In these States, the closure of all existing units located in wetlands would likely significantly disrupt statewide solid waste management, leading to possible increases in open dumping and open burning. Therefore, the Agency believes that it Is impracticable to require closure of existing units located in wetlands. Concern about impacts on solid waste disposal capacity was also the primary reason the Agency did not subject existing units to today's final fault area location restrictions. The closure of a significant number of existing units located in fault areas would result in the serious reduction of landfill capacity in certain regions of the U.S. where movement along Holocene faults is common, such as along the Gulf Coast and in much of California and the Pacific Northwest EPA estimates that 35 'percent of all existing MSWLF units ere in counties that contain faults that have been active in the Holocene Epoch. The Agency, however, does not have specific data showing the distance between these landfills and the active faults, and therefore, is unable to precisely estimate the number of these existing MSWLF units that would not meet today's fault' area restrictions. However, given the potential for impacts on solid waste capacity, EPA believes it is appropriate not to subject existing units to the final fault area requirements. Finally, the Agency today is not imposing the seismic impact zone restrictions of § 25&14 on existing units located in these areas. The Agency anticipated that there would be a significant number of existing MSWLFs in these areas that would be unable to meet the requirements of § 258.14, because retrofitting would be prohibitively expensive and technically very difficult in most cases. As a result, many existing MSWLFs would be forced to close leading to potentially significant impacts on solid waste disposal capacity In these. areas. While the wetlands, fault areas, and seismic impact zone provisions of today's location restrictions do not apply to existing units, all of these restrictions apply to lateral expansions of existing units (as well as new units). Therefore, owners and operators of existing units may vertically expand Federal: Register / Vol. 56, No. 195 / Wednesday,. October 9, 1991 / Rules end. Regulations 51043 their existing units in these Iocations. but must comply with the provisions governing new units if they wish to laterally expand. EPA recognizes that ' applying these provisions to lateral expansions (and now units) will - somewhat limit the ability of owners and operators to address capacity needs. However; the Agency believes that the flexibility provided owners and operatora to vertically expand existing units will adequately address short-term capacity needs. In addition, the 24- - month window prior to the effective date of today's rule.pravides owners and. operators time to plan for future capacity needs.. Section 258.29(a) requires the MSWLF owner/operator to record and retain in, an operating record any location restriction demonstrations. The final rule allows the Director of an approved State to specify an alternative location for maintaining the operating record and alternative scheduleaformaoidkeeping and nakficationrequirements. - 1. Section 258:28 AirportSajety, The proposed criteria specified that new MSWLF units, lateral expansions, and existing MSWLF units located within. 10,000 feet (3,048 meters] ofany airport runway used by turbojet aircraft or within 5,000 feet (1,524 meters] of any airport runway used by only piston -type aircraft shall not pose a bird hazard to aircraft These distance limits were derived from the Federal Aviation' Administration (BAA) Order UM,5, "FAA Cuidance Concerning Sanitary Landfills on or Neu Airports" (October 10, 1974). The proposal was identical to existing 1257.3-8, applicable to solid waste disposalfacifides. In general, commenters supported the proposed airport safety criteria; . however, some commenters suggested - that the Agency consult with the FAA to establish a coordinated national policy for siting of new MSWLF units near airports. Specifically, commenters were concerned that the FAA had placed additional restrictions on sitingnear. . airports that were notreflected in EPA's revised criteria- - In response to these comments, the Agency consulted with the FAA on the latest policies for siting. new airports. In January. 1990, the FAA revised FAA Order 5200.5, which was the basis for the Agency's existing part 257 criteria and proposed part 258 airport safety provision. Under this revision (FAA order 5200.5A) any waste disposal site located within a five -mile radius of a runway end and that attracts or sustains hazardous bird movements from, feeding, water, or roosting areas into, or 'cross the runways andtor approach and departure patterns of aircraft will be considered "incompatible" with airports. Additionally-, any operator proposing ais* orexpandedwaste. disposal facAity.,vithi i five miles of a runway end "should notify the airport and the appropriate FAA "airport office so as to provide an opportunity to review and comment on the site in accordance with FAA guidance. If the disposal facility is determined by the FAA to be incompatible with the airport then under the terms of the order, it should not be sited at that location, To. respond to commenters concerns about the need for a coordinated national policy for siting now airports, the Agency carefully considered modifying 125830 so as to make it consistent with the FAA Order 5200.5A. However, the Agency recognizes the Public has nathad full opportunity to review and comment ort these potential additional part258 requirements for airport safety, particularly substantive new performance criteria and. restrictionsfor new MSWLFs and lateral expansions within five miles of airport runways.. Therefore, EPA has decided not toInclude new performance criteria for MSWLFs within five miles of airport runways, in today's rule. Instead EPA expects to propose additional ' performance criteria or restrictionafor new and expanded MSWLFs near airports when the Agency revises these criteria in the future. .. However, EPA believes it is appropriate to include in today's rule one minor, procedural element of the revised FAA order—that owners and . operators proposfngnew MSWLF or (lateral) expansions within five stiles of a runway notify the affected airport and the appropriate FAA office. EPA believes that this requirement will ensure communication between the owner or operator and the FAA, and facilitate Implementation of the revised FAA order by the FAA. EPA believes this requirement partially addresses commenters' concerns about a coordinated national policy on siting near airports. More importantly, today's notification requirement Imposes little. burden on the owner or operator. EPA believes this burden is particularly small when weighed against the FAA concern that landfills and other waste disposal sites erode the safety of the airport environment Owners.and operators can comply with tgday's notification requirement simply by submitting letters to the affecied airport and the - appropriate FAA airports office staling their intent to site.a new MSWLF or lateral expanslons within five miles of an airport runway. And finally, this notification requirement is a type of other applicable Federal requirement with which an owner or operator must comply with under ¢ 258.3 of today's rule: Today's final airport safety criteria' applicable to new MSWLFs, existing MSWLFsr and lateral expansions remain unchanged from -the proposal, except for minor clarifying language changes. The Agency also wishes to clarify that _ today's airport safely criteria do not prohibit the disposal of solid waste within the specified distances, unless the owner or operator is unable to make the required demonstration showing that 'the landfill is designed and operated so as not to pose a bird hazard. Today's - regulation simply defines.a "danger zone" within which particular care must be taken to ensure that no bird hazard' arises. Also, today's' requirement applies only toMSWLFS and does �notaffect the . location of airports or. airport runways within the specified distance. Finally, commenfers suggested that the terms "bird hazard" and "airport" be defined In the rule language. In today's final rule, the Agency defines, those terms by -using the definitions currently found in 40 CFR 257.3-8. The rationale for these definitions, which remains -. valid for purposes: of this rule, can be found at 44 FR 53458, September i8; 1979. The definitions are as follows: "Airport"is a public -use airport open to. the public without prtorpermisson and without restrictions within the physical capacities of available facilities." `Bird hazard"fs " an. 'Increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or irijury.to its occupants:" 2. Section 20811 Floodp1, The proposed criteria specified that new MSWLF units, lateral expansions, and existing MSWLF units located in 108-yearfloodplainsshall not restrict the flow of the 100 -year flood, reduce the temporary water storage capacity of the floodplain, or result in the washout of solid waste so as to pose a hazard to human health and the environment. The proposed requirement was identical to the existing partt257Criteria, which are applicable to allsolid waste disposal facilities, includingMSWLFs, . The intent of this requirement is to ensure that MSWLFs located In a 100 - year floodplains are designed and operated to prevent significant impacts on the 100 -year flood flow and water storage capacity. Specifically, disposal of solid waste in floodplains may have the following kinds of significant adverse impacts: (1) If net adequately protected from washout, wastes maybe . carried by flood waters and flow from 51041 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations the site, effecting downstream water quality; (2) filling in the floodplain may restrict the flow of flood waters, causing greater flooding upstream; and (3) filling In the floodplain may reduce the size and effectiveness of the temporary water storage capacity of the floodplain, which may cause a more rapid movement of flood waters downstream, resulting In higher flood levels and greater flood damage downstream. Several commenters noted that the proposed rule and preamble were Inconsistent. Specifically, the rule language specified that the MSWLF must not restrict the flow of the 100 -year flood or reduce the temporary water storage capacity of the floodplain or result In washout of solid waste so as to pose a hazard to human health and the. environment However, the preamble slated that locating a MSWLF in a floodplain will always have some Impact on the flow of the 100 -year flood and water storage capacity. The Agency agrees that anMSWLF will always have some impact upon the flow and water storage capacity of the loo -year flood and a requirement that an MSWLF not do so is impracticable. As proposed, the Agency Is requiring that the flow restriction or Impact upon water storage capacity that does occur, as the result of the MSWLF, not pose a hazard to human health and the environment. Several other commenters disagreed with the proposed requirement and strongly urged EPA to ban all MSWLF units from the loo -year floodplain. These commenters argued that it Is difficult to predict in advance the adverse impacts of a flood and asserted that, In the event of a flood, remediation would likely involve further environmental threats and would be extremely costly, if even possible. Those commenlera also suggested that if the Agency still decides not to ban MSWLFs fFom the 100 -year floodplain, EPA should at least ban MSWLFa In areas subject to frequent flooding (e.g., five- or len-year floodplain). The Agency decided not to ban the siting of new MSWLF units, lateral expansions, or existing MSWLF units in the log -year floodplain for two reasons. First, EPA believes that such an across- the-board ban Is not necessary for MSWLFa to protect human health and the environment. EPA believes that the demonsuation requirement in today's final rule fully addresses the human health and environmental concerns (i.e., restricting flow, reducing temporary water storage capacity, and washout of waste) posed by the siting of MSWLFs In floodplain areas. if such a demonstration cannot be made, the landfill cannot be sited in that location or must be closed in accordance with § 258.16 of this part. Although EPA agrees with commenters that it is somewhat difficult to predict in advance the adverse impacts of a flood, the Agency believes such predictions can be made. In fact, such demonstrations have been made in the past by facility owners and operators to comply with identical floodplain restrictions for solid waste disposal facilities under part 257, which. have been in existence since 1879. Second, as stated previously in the preamble to the proposed rule, the outright banning of all MSWLFs from the loo -year floodplain could affect large portions of the nation, including large areas of.some States (e,g., Louisiana, Mississippi, Missouri, and Arkansas) and, thus, could strain the regulated 'community's ability to provide adequate disposal capacity for municipal solid waste In those areas. Owners or operators of MSWLFs noun determine ff their facilities are located in a 100 -yen floodplain by using the Federal Emergency Management Agency (FEMA) flood insurance rate maps (FIRMs). These maps cover over 99 percent of the flood -prone communities in the United States and can be obtained at no cost from the FEMA Flood Map Distribution Center, 6930 (A -F) San Tomas Road, Baltimore, Maryland, 21227-6227. For the small number of areas that are not covered by FIRMS, owners or operators could obtain loo -year floodplain maps from: The U.S. Army Corps of Engineers, the Soil Conservation Service, the National Oceanic and Atmospheric ' Administration, the U.S. Geological Survey, the Bureau of Land Management, the Bureau of Reclamation, the Tennessee Valley Authority, and State and local Rood control agencies and other departments. Additional guidance on procedures for delineating floodplains where no maps exist will be included in the technical guidance for this rule, which Is discussed In section V of today's preamble. The Agency also decided not to ban the siting of all MSWLF units In areas of more frequent flooding (e.g., five- or ten- year floodplain). Under the 100 -year floodplain criterion, an MSWLF unit cannot be located In the 100 -year floodplain unless the MSWLF unit is designed constructed, and maintained so as not to restrict the flow of the 100 - year flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste. The main difference between the five- or ten- year floods and the loo -year flood is the magnitude of the flood and, therefore, any structures built for a loo -year flood should be able to withstand the five- or ten-year flood. Furthermore, the 100 - year floodplain encompasses, geographically, all five- and ten-year floodplain. Thus, the Agency believes that today's requirement adequately protects human health and the environment in 100 -year floodplain as well as In five- and ten-year floodplain. Finally, the Agency believes that a ban on MSWLF units in areas of frequent flooding would be more difficult to implement because maps depicting the five- or ten-year floodplains (frequent flooding areas) are not readily available and in most areas are not available at all. A requirement banning the location of MSWLFs from areas of frequent flooding areas would . require owners or operators to develop floodplain maps for frequent -flooding areas. On the other hand, maps depicting the 10o -year floodplain are. generally readily available. 3. Section 288.12 Wetlands The proposed criteria specified that no new MSWLF unit or lateral expansion could be locatedin a wetland unless the owner or operator made specific demonstrations to the State that the new unit (1) would not result in "significant degradation"of the wetland as defined in the Clean Water Act section 404(6)(1) guidelines, published at 40 CFR part 230, and (2) would meet other requirements derived from the section 404(b)(1) guidelines. Under the proposal, existing MSWLF units located in wetlands could continue to operate; however, as indicated above, any lateral expansions of existing units would have to be in compliance with the proposed wetland restrictions. To be consistent with the Clean Water Act, the proposed criteria adopted the definition of wetlands contained in the Army Corps of Engineers section 404 implementing regulations (33 CFR parts 320 through 330) and the EPA section 404(b)(1) guidelines (40 CFR part 230). As defined by the Corps and EPA, wetlands are those "areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil condition. Wetlands include, but are not limited to, swamps, marshes, bogs, and similar areas." Several commenters requested that new MSWLF units be banned completely from wetlafids. A few commenters suggested that when a neo Federal Register'/ Vol. 56, No. 196 1Mednesday,,10ctober 9, 1991 /Rules and -Regulations 51D45 MSWLF unit is located in a welland,.the owner or operator of the MSWLF should be required to restore an equivalent amount of land as a wetland "offset." On the other hand, several commenters supported the prdposed approach or one with more flexibility to allow siting of critically -needed landfills in wetlands under certain conditions. In response to these comments, the Agency considered whether.to establish an outright ban on new MuWLF units and lateral expansions in wetlat:ds. The Agency fully agrees with the commenters that wetlands are a very important, fragile ecosystem that must be protected. In fact, the Agency has identified wetlands protection as a top Priority. In evaluating this issue for today's final rule, however, EPA also seriously considered commenters' request for flexibility 4o allow limited siting of landfills in wetlands to address potential impacts on current and future solid waste disposal capacity. As discussed earlier in this section; wetlands comprise large areas of the country, particularly in certain regions of the U.S. Because large volumes of municipal waste are generated in every community throughout the U.S., there is a critical need for regional or local waste management capacity. EPA was concerned that an outright ban of new MSWLFs, or lateral expansions ht wetlands would severely restrict the available sites or expansion' .. possibilities. Such capacity shortfalls' very likely could lead to other health and environmental impacts, such as open dumping'or open burning. Because of the potential for serious disruption of municipal solid waste capacity, the Agency concluded that some flexibility must be.provided for communities to site or laterally expand MSWLFs in wetlands. Therefore, the Agency decided against an outright banon new MSWLFs or lateral expansions m wetlands. However, EPAcontinues to believe that siting new MSWLFs or lateral expansions in wetlands should be done only under very limited conditions. The Agency is retaining in today's rule the comprehensive set of demonstration requirements. included in the Proposed rule. In addition, the Agency agrees with commenters that when anew MS WLF is located or a lateral expansion is created in a wetland, that the owner or operator should offset any impacts through appropriate and practicable compensatory mitgatlon actions [e.g., restoration of existing degraded wetlands or creation of man-made wetlands). This approach is consistent with the Agency's recent adoption of the goal of achieving no overall net loss of the nation's remaining wetiand base, as defined by acreage and function. Therefore, the Agency has incorporated this addifigggat demonstration element into the f_n31 rule. Specifically, § 258.12(a)(4) has been modified to require owners or operators of new MSWLF units or lateral expansions to demonstratethat steps hate been taken to attempt to achieve nonefloss of wetlands (as defined by acreage and function) by first avoiding impacts to wetlands and then minimizing such impacts to, the maximum extent practicable, and finally, offsetting any remaining wetland impacts through all appropriate and practicable-. -. compensatorymitigation actions le.g:, restoration o£.existing degraded Wetlands or creation of man-made - - wetlands). The Agency has also made additional changes to ensure that the demonstrations required today for new MSWLFs and lateral expansions are comprehensive and ensure protection of human health and the environment. First, EPA has added language to. § 258.12(a)(2) clarifying that the owner or operator must demonstrate that both the construction and operation of the " MSWLF will not result in violations of the standards specified in § 258.12(a)(2)(i)-(iv). ' Second, as requested by commenters, the Agency has revised § 258.12(a)(3) to Identify the factors the owner or operator must address; in demonstrating that the landfill will not cause or contribute to significant degradation of, .wetlands. These factors; which were partially derived1rom the section 404(6)(1) guidelines, address the integrity of the MSWLF and its ability to protect the, ecological resourcesof the wetland. Finally, because of the unique - characteristics of wetlands, EPA believes that the review and approval of. the Director of an approved State is necessary for ensuring that the demonstration is comprehensive and adequate to protect human health and the environment. Therefore. today's rule specifies that all of the demonstrations . must be made to the Director of an approved State. and placed in the operating record of the facility. This provision effectively bans the siting of new MSWLFs or lateral expansions in wetlands in unapproved States (i.e., States that do not have EPA -approved RCRA subtitle D permitting programs). EPA believes this approach, is ' warranted given the commenters' concerns regarding wetlands and the Agency's commitment to protecting this valuable resource. . As indicated earlier in today's preamble, the Administration announced on August 9, 1991 a comprehensive plan for the protection of the Nation's wetlands. Included werea number of actions to improve the -workability of the Clean Water Act section.404•regulatory program, which regulates the discharge of dredged ori fill ' material Into wetlands. Among these "* changes will be the development of wetlands categories by an interagency technical committee based on wetlands value. After such a categorization scheme is developed, the mitigation. sequence (f.e., avoidance, minimization, and then compensation) will be.retained for the high value wetlands category, and projects in other wetland categories will be required to offset wetlands - losses through compensatory mitigation. When such wetlands categories are identified, the above changes to the section 404 permitting program will be implemented through amendment of applicable legal authorities. Section 258.12 of today's rule is consistent with reagulatory provisions currently . governing the section 404 program. When the section 404 regulatory' Program is modified in accordance with the Adminisfration's wetlands protection program, relevant portions of this rule will be modified accordingly. Furthermore, four agencies have recently published proposed revisions to a technical guidance document - I implementing the current regulatory definition of wetlands, and the agencies will shortly be proposing to codify. ' portions of that document in the Code of Federal Regulations. See 56 FR 40446 (Aug. 14, 1991). The definition of - wetiands contained in § 258.12 of — today's rule reflects the Agency's current definition under the section 404 program. See 40 CFR 232.2(r). When the agency proposes amendments to the definition of wetlands under the section 404 program, such changes will also he proposed for the definition contained in § 258.12 of today's rule., 4. Section 258.13 Fault Areas EPA proposed to ban new MSWLF units and lateral expansions within 200 feet (00 meters) of faults that have - experienced displacement during the Holocene Epoch. The Holocene is a unit of geologic time, extending from the end of the Pleistocene Epoch to. the present ' and includes the past 11;000 years of the Earih's history. The technical justification for the 200 -foot (60 -meter) setback is discuss, ' in the preamble for 51046 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations the proposed rule and the Draft Location Restriction Background Document. In the proposed rule, a "fault" was defined as a fracture along which strata on one side have been displaced with respect to that on the other side. In response to comments, EPA revised the definition of fault In today's rule to _ include a zone or zones of rock fracturing in any geologic material along which there hes been an observable amount of displacement of the sides relative to each other, This addition is necessary because faulting does not always occur along a single plane of movement (a "fault"), but rather along a zone of movement (a "fault zone") Therefore, "zone of fracturing," which means a fault zone in the context of the definition, is included as part of the definition of fault, and thus the 200 -foot setback distance will apply to the outermostboundary of a fault or fault zone. Several commenters suggested alternatives to the proposed 200 -foot setback distance. Although no commenters suggested actual values for these changes or provided any data, two favored an increased distance, one favored a decreased distance, and two favored a distance based on site-specific studies. Seismologists generally believe that the structural integrity of MSWLFs cannot be unconditionally guaranteed when they are built within 200 -feet of a fault along which movement is highly likely to occur. Moreover, EPA relied on a study that showed that damage to engineered structures from earthquakes. Is most severe when the structures were located within 200 -feet of the fault along which displacement occurred. In general, EPA believes that the 200 -foot buffer zone is necessary to protect engineered structures from seismic damages. However, the Agency also agrees with commenters who argued that the zoo - fool setback may be overly protective in some geologic formations but it is tunable to provide a clear definition of these geologic formations. Therefore, the Agency bas allowed in today's rule, the opportunity for an owner or operator of a new MSWLF unit or lateral expansion to demonstrate to the Director of an approved Stale that an alternative setback distance of less than 200 feet will prevent damage to the structural Integrity of the MSWLF and will be prolective of human health and the environment Section 25829 of today's rule also specifies that the demonstration must be placed In the operating record of the facility. This approach requiring review and approval of the Director of an approved State Is consistent with other sections of today's rule for variances or waivers from the specified self -implementing requirement EPA recommends that owners or operators use a map published by the U.S. Geological Survey in 1978 to determine the location of Holocene , faults in the United States, For locations in which movement along a Holocene fault has occurred more recently than 1978, owners or operators of new MSWLFs and lateral expansions would need to perform a geologic reconnaissance of the site and its environs to map fault traces and to determine the faults along which movement has occurred in Holocene time, and then to determine the appropriate 200 -foot setback zone(s). 5. Sect(on258.14 Seismic Impact Zones The proposed criteria required owners or operators of new MSWLF units or lateral expansions located in a seismic impact zone to design the unit to resist the maximum horizontal acceleration in lithified material for the site. The design features affected include all containment structures (i.e., liners, leachate collection systems, and surface water control systems). Seismic impact zones were defined in the proposal as areas having a 10 -percent or greater probability that the maximum expected horizontal acceleration in, hard rock, expressed as a percentage of the earth's_ gravitational pull (g), will exceed O.log In 250 years. Several commenters suggested that the requirement for seismic Impact areas be revised so that the maximum expected horizontal acceleration is based on site-specific assessments rather than on one performance criterion (exceedance of O.10g in 250 years) for all sites. Some commenters supported the proposed criterion, while others favored the use of a 100 -year return period, rather than a 250 -year period These commenters believe that using a 250 - year raturn period to evaluate site peak ground motion would result in more expensive studies and design in these areas, when the 100 -year return period provides adequate protection to human health and the environment. EPA has rejected the commenters' suggestion to allow the maximum expected horizontal acceleration to be set on a site-specific !iasis. Because of the self -implementing nature of today's rule, EPA believes that to ensure adequate protection of human health and the environment it is essential to establish a standard performance criterion for horizontal acceleration. Today's final standard still provides owners and operators of new MSWLF units and lateral expansions significant flexibility in selecting appropriate facility design on a site-specific basis to meet the specified performance criterion. EPA also decided to retain the proposed criterion using the 250 -year return period rather than changing to a iMyear period as some commenters suggested, for two reasons. First, commenters did not present any data demonstrating that the 100-yearreture period was as protective of human healjh and the environment. In lieu of supporting data, EPA is hesitant to adopt what it considers to be a less protective standard. Defining seismic zones by using the 250 -year interval includes more area within the zone than a loo -year and, therefore, will be more protective of human health and the environment Second, as a practical matter, 100 -year interval maps are not available for most areas in the U.S. This would require owners or operators to do possibly costly studies to identify these areas if today's rule used the 100 -year interval. The maps for the 250 -year intervals, on the other hand, are readily available for all of the U.S. in the U.S. Geological Survey Open -File Report 82- 1033, entitled "Probabilistic Estimates of Maximum Acceleration and Velocity hr Rock in the Contiguous United States." Several commenters noted that EPA used the terms "lithified material" and "hard rock" interchangeably in the proposed rule. Commenters requested that these terms be defined or clarified. EPA agrees that these terms were used interchangeably, and that this results in confusion. Because the term "hard rock" can be ambiguous—raising questions such as what is "hard" rock as opposed to "soft" rock—the Agency revised the rule language to use the term "lithified earth material" consistently throughout the rule. This term best defines the . material the Agency is addressing In this part of the rule. The term "lithffied earth material" includes all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or ,mall particles of older rock that formed by crystallization of magma or by induration of loose sediments. The term specifically excludes man-made materials such as fill, concrete, and asphalt, as well as unconsolidated earth materials, soils, or regolith lying at or near the earth's surface. ' Like all of today's final rule, the final seismic impact zone requirements are self -implementing. As such, today's final rule requires the owner or operator to place the specified demonstration in the operating record and to notify the State Director. This provision ensures that tho owner or operatorrelains the Federal Register / Vol. 56, No, documentation necessary to show that a demonstration has been made in compliance with this requirement. G. Section 256..15 Unstable Are The proposed criteria required owners and operators of new MSWLF units, lateral expansions, and existing MSWLF units located in unstable areas to demonstrate to the State's satisfaction the structural stability of the unit. Such demonstrationswouldhave to show that engineering measures have been incorporated. into the design of the unit to mitigate the potential adverse impacts of establishing events on the structural components of the unit. These structural components include liners, leachate collection systems, final cover systems, run-on and run-off control systems, and any other component necessary for protection of human health and the environment. The proposed criteria also required a er/a year phase-out of existing MSWLF units located in unstable areas that . , could not make the demonstration. This was corrected to the final rule to make the closure deadline five years from . today's date, as originally intended. However. States could grant an - extension to the phase-out if there were no available disposal alternative and no potential threat were posed to human health and the environment. (See .. appendix B for discussion on closure of axis ting units). Several commenters requested that the Agency clarify its definition of "unstable areas." Today's ,final�rule Provides that "unstable areas"are locations that are susceptible to natural or human -induced events or forces capable of impairing.the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas are characterized by localized or regional ground subsidence, settling (either slowly, or very rapidly and catastrophically) of overburden, or by slope failure. Unstable areas generally include: (1) Poor foundation conditions—areas where features exist that may result in inadequate foundation support for the structural components of the MSvw unit (this includes weak and unstable soils); (2) Areas susceptible to mass movement, areaswhere the downslope movement of soil and rock (either alone or mixed with water) occurs under the influence of gravity; and (3) Karst terraces—areas that are underlain by soluble bedrock, generally limestone or dolomite, and may contain extensive subte,Tanean drainage systems and relatively large subsurface voids whose presence can lead to the rapid development of sinkholes. October 9, 1991 / Rules and Regulations 51047 The term "karst" refers to a type of topography that under certain climatic conditions develops on soluble rock, most commonly limestone or dolomite. Karst areas are characterized by the presence of certain physiographic features such as sinkholes, sinkhole plains, blind valleys, solution valleys. losing sfreams, caves, and big springs, although not all these features are always present. EPA'sintent is to include as an unstable area only those karst terraces in which rapid subsidence and sinkhole development have been's common occurrence in recentt geologic time. Many of the karst areas are sbown on the U.S. Geological Survey's National AUas map entitled "Engineering Aspects of Karst" published in 1984. This is a very small scale map, and even though a review of that map suggests that a site is not in an area with historical subsidence problems, ovmers and operators should undertake a more site-specific investigation to show that the potential for subsidence at their site is very limited or nonexistent. Guidance on this issue will be included iii the technical guidance document for this rule the _ Agency plans to issue within six months. Specific examples of natural or human -induced phenomena include: Debris flows resulting from heavy - rainfall in a small watershed; the rapid formation of a sinkhole as a result of excessive local or regional ground -water withdrawal; rockfalls along a cliff face caused by vibrations set up by the " detonation of explosives, sonic booms, or other mechanisms; or the sudden liquefaction of a soil yvith the attendant loss of shear strength following an _ extended period of constant wetting and drying. Various naturally -occurring. conditions can make an area unstable and these can be very unpredictable and' destructive, especially if amplified by human-inducedchanges to the environment. Such conditions can - include the presence of weak soils, oversteepenerl slopes, large subsurface .voids, or simply the -presence of large quantities of unconsolidated material near a watercourse. The preamble to the proposed rule specified "weak and unstable soils" as an example of an unstable area. Several commenters requested that EPA clarify its definition of "weak and unstable soils," with some suggesting that engineering criteria be substituted. Based on comments received, EPA is clarifying the definition of "weak and unstable soils" in this appendix. Weak and'unstable soils are of two basic types: (1) Expandable soils and rocks sensitive to water, and (2) soils and rocks subject to rapid settlement when saturated. Naturally -occurring expandable materials include smectitic clays, anhydrous sodium sulfate, and some shales. Loess, which is a primarily slit -sized material, is the principal material subject to rapid settlement upon saturation. Liquefaction and the subsequent sudden loss of bearing strength is a major problem with many of these materials, and if any of the above materials are present,at a proposed MSWLF site, detailed geotechnical and. geological studies should be undertaken to examine and document the performance of the soil under all likely climatic and technical settings. This is to ensure that poor foundation conditions are not now present, and that they are not likely to occur in the future under changes in climatic and other conditions that may reasonably be expected to occur. As an example, the bearing strength of soils at it site where there are seasonal cycles of wetting and drying should be documented under both conditions. Guidance on this issue will be included in the techm'cal guidance EPA is developing for this rule. - One commenter argued that all MSWLFs should be banned In karst terraces instead of allowing a demonstration of structural stability because such areas are commonly prorz to catastrophic subsidence. The commenter further argued that it is - extremely difficult to show that ground- water monitoring and corrective action can be effectively performed in many, if . not most, karst terraces, particularly those where ground water moves along large, discrete conduits. The Agency recognizes that rapid sinkhole formation that occurs In some karst terraces can pose a serious threat to human health and the environment by damaging the structural integrity of liners, caps, run-on/run-off control systems, and other engineered structures. However, EPA did not propose an outright ban, of MSWLF units in all karat teriaces because of concerns regarding the impacts of such a ban on solid waste disposal capacity in certain regions of the country. For example, several States (i.e., Kentucky, Tennessee) are comprised mostly of karst terraces and the banning of all MSWLF units in karst terraces would - cause severe statewide disruptions in capacity available for solid waste management. Moreover, the Agency believes that some karst terrat,es may provide sufficient structural support for MSWLFs and the final rule should provide flexibility for siting in these areas. Therefore, today's rule allows'the construction ofnew MSWLF units or 51W18 Federal RegUter Vol. 58, No. 196 /Wednesday, October 9, 1991 f Rules and Regulations lateral expansions and Che continued operation of existing MSWLF units in karst terraces where the owner or operator demonstrates. to the State Director the structural integrity of the components of the unit as allowed for in § 258.15(a). The Agency believes this approach will provide adequate protection of human health and the environment for subtitle D units. Although the standards set forth in this section pertain, to the issue of structural integrity of MSWLF units in karat terraces, EPA acknowledges that there are additional problems in establishing an effective ground water monitoring system in some karst terraces. EPA believes that the ground water monitoring requirements under subpart E of today's rule adequately address the establishment of a ground water monitoring system at all MSWLF units for subtitle D purposes, including those located in karst terraces. New units and lateral expansions In karst terraces that are not able to demonstrate compliance with subpart E are not allowed to begin operations, even If compliance with § 258.15(a) can be demonstrated. Similarly, existing units that are not able to demonstrate compliance with subpart E, even if compliance with § 258.15(a) can be demonstrated, are required to close in accordance with § 258.16. This will provide additional protection of human health and the environment. Today's final unstable area restrictions incorporate an editorial change suggested by a commenter. This commenter indicated that the language in one sentence of § 258.15(a) as proposed was confusing (i.e., "Me owner or operator of anMSW1Y unit located in an unstable area must demonstrate to the State that engineering measures have been Incorporated into the uniVa design to ensure the stability of the structural components of the unit.") The commenter suggested that the language be revised as follows (changes underlined): "' ' *have been incorporated into the unit's. design to ensure that the integrity of the structural components of the unit will not be disrupted" The Agency agrees with this editorial comment and revised the final Tule language as suggested. Me all of today's final rule, the final unstable area restrictions are self- implementing. elfimplementing. As such, today's final unstable area restrictions require the owner or operator to place the specified demonstrations in the operating record and to notify the State Director. This provision ensures that the owner or operator retains the dccumentation necessary to show that a demonstration has been made in compliance' with this requirement. 7. Section 2578.I6 Closure of FO sting Units The proposed rule. under § 258.15, required owners and operators of existing MSWLF units that were located in unstable areas and unable to demonstrate the structural integrity of the unit, to close within Bi/2 years (October 9, 19136) unless the State extended the.deadlinE. Extensions. could only be granted by the State after considering the availability of alternative waste disposal capacity and the potential risk to human health and the environment. As discussed earlier. § 258.15(c) erroneously stated that existing units in unstable areas that are unable to make the demonstration, must close ,within 5 years of the effective date of the rule. As this is read, it allows 61/2 years for MSWLFs to close. The Agency has corrected this in today's final rule to reflect its original intention to allow a maximum of 5 years from today's date for MSWi-F's unable to make the appropriate demonstrations, to close. Several commenters expressed concern that States could extend this phase-out period for existing units beyond the intended five years with no limitations. EPA agrees with the commentexs that there should be a limit on the time period for extensions. Therefore, in today's rule. EPA Is limiting the length of an extension that the Director of an approved States may grant to two years after the initial five- year extension. EPA believes that five years will, in most cases, be adequate time to complete proper and effective facility closure in unstable areas, and to arrange for alternative waste management. However, there may be cases where alternative waste management capacity may not be readily available or where the siting and construction of a new facility may take longer than five years. EPA believes the two-year extension provides sufficient time to address these potential problems. EPA continues to believe that impacts on human health and the environment need to be carefully considered before such extensions are granted. For this reason, the final rule retains the provision that an extension be given only after consideration of threats to human health and the environment. Specifically, today's final rule requires the owner or operator to demonstrate that there is no available alternative disposal capacity and there is no potential threat to human health and the environment. To further ensure careful consideration and review of human health and environmental impacts, time extensions must be approved by the Director of an approved State. Therefore, these extensions will not be available to owners and operators of MSWLF's in unapproved States. in reviewing comments on the proposal, the Agency recognized that the proposed rule was unclear regarding closure of existing MSWLF units that could not make the demonstrations under the airport safety and floodplaina location criteria. Therefore, to clarify this issue, FFA has specified under this new section (258.16) that existing h1SWLP units that cannot meet the demonstration requirements under the airport safety or floodplain location restrictions must also close under the same schedule discussed above for the unstable area restrictions. As discussed earlier in this preamble. EFA expects that most, if not all, existing MSWLFs should be in compliance with the airport safety and floodplain provisions because they have been in effect under existing part 257 since 1979. Thus, the Agency does not expect many existing units in these two locations to close - None theless, lose.Nonetheless, closure of existing units that cannot make the demonstrations required in today's rule was the original intent of the Agency. This section now explicitly provides for closure of existing units where required and clarifies the Agency's original intent on this matter. B. Wier. Location Areas EPA specifically requested comments on whether other location restrictions in addition to thosa proposed should be imposed for MSWLFs. The Agency received several suggestions for additional location restrictions. The major suggestions included areas of high-quality, vulnerable ground water and unmonitorable areas. However, the Agency decided not to include them in today's final rulemaking for the reasons discussed -below. The Agency recognizes the concern with siting MSVVLFumits over areas of high-quality, vulnerable ground water. EPA agrees that high-quality, vulnerable ground water should be protected. However, as noted earlier, this rule is intended to be self -implementing. As yet, the Agency does not have adequate Information to develop acceptable national and self -implementing criteria to identify high-quality, vulnerable ground water. The Agency is still examining this issue and developing those types of criteria for determining areas of high-quality, vulnerable ground Fa&ral Ragi er• / Vol. 56,. No. '19a / Wedtresday,_October S, im / )Rules. and Regulations 51049 water. Such specific criteria are critical direct eonziection between the two, rules hazardous. wastes. These steps may for an effeetive, implamentable siting by iacorgoratiruo the note; lir todalea rule. include fnstifutzng source controls, requiremeat Therefore restricti tis o - ct n sitingMSWLFunits over areas; of high quality; vulnerable ground water are not included. in today's final rule. If I7PA decides to establish a new siting restriction for N SihiL s in these areas after this analysis. is completed. the Hvency will propose appropriate revrsiorts to this rule. Before this time, the Agency expects that the multitude of State ground -water protection laws, including those affecting shin& used) be used to protectbigh-quality,:vulnemble ground water as -.an later in measure. The Agency also: intends to study further the efficacy of these State measures in developing the national self- implementing criteria that may be needed: Several commenters suggested. that MSWF. Es should be banned from locating irru mi6vitorable areas and that these areas should be included as a- la lacatism restrictim. -The Agency.agrees with these eonzraeaters, but believes that this issue is adequately addressed by the ground -water monitoring . requirements under subpart E of today's rule. Specifically, § 258.50 of subpart E requires hew MSW LF units to be in compliance with the ground -wafer monitoring requirements prior to vKaste being placed in the unit for disposal, and existing units to establish ground -water monitoring requirements according to a specTle l schedule (see appendix F to today's preamble). I -a addition, § 25a,52 requires that the number, spacing;, and depths ofraouitaring s,rstems be . determined based on a thorough sate. specific characterization of the aquifer and geologize runts or materials arreriying the aquifer. If an owner and operatcr is unable to comply with. these requirements due to unmonitorability of a particular location. helshe cab' at site or operate an M]}VVLF at that location. EPA believes that this approach effectively meets the.objective.of the commenters, 13. Wellhead pratectlan As part of today's rulemaking, the . Agency is emphasizing the slate wellhead protection prograru established tinder Section of the Safe Drinking Wateu> Act. By including. a note to today's location restrictions this puts owners and operators on notice that wellhead. protection programs may exist in their States and the appropriate State program should be contacted to datermine the nature of any additional requirements. The we116ead protection program is not 4 part of the sulztitle D rule and the Agency is not implying a Appendbc D—Supptemeutal Wormation for Subpart C-0peratiug, Crlterra .2. Section 258.Zft Pt'acedtfrss fa1' Excludr"mg the Receipt of Hazardous Waste The proposed: rule would require the .owner or operator of an N,2Si�1 LF to implement a program to detect and prevent attempts to dispose of hazardous wastes Iregnlated under sublitle C of RCR4j and polychlorinated hiphenA (PCB) wastes (regulated under the Toxic Substances Control Act). at the facility. Eheproo am, as. proposed, included random inspections of ineoming Ioads,Jnspections of suspicious loads, recorakeeping of inspeddon results, training of personnel to recognize'hazardous waste, and procedures for not2fl ffig the proper State authorities ffa regurlated hazardous waste vias found at the -facility.. Commenters expressed concern that some proposed program elemeatsntight be impracticable and/or dangerous, especially for smaller landPSIls and sites that are unattended during open hours. EPA recagn izes.the potential hazards. involved, but believes that with proper training (as req�ed under"taday's rule) these risks should be minimized. In adddLan, a pragrain for datectiotir and removal of hazardous materials would reduce inadvertent contact with hazardous materials by other employees of the facility and wound discourage atteunpts to d mp regulated IFazzardaus waste illegally at MsS'[47Lp,_. EpA believes that. although the proposed program elements are not currently standard procedures, the elements. are generallf feasible at mast MSTA ILFs, are highly pretectiva of human Health and the et. klronmert4 and after . implementation should lrzsolve only slightly more additional wurkfor the. owner or operator. However, the Agency recon ;res that at certain facilities, particularly smaller facilities, which may be unmanned during all ax psortious of the time #.ire waste is received; certain: program elements, epeci:hcaliyroutine inspectlens of incoming leads, may be impractical- The Agency also recognizes that random inspect€ous. may be unnecessary if the waste exclusively originates from households. Fn order to aecorurmodate these cancer', the Agency revised thaproposed lauguage, by pre.viding that the ower or operator of an MS�lUL can avoid: random Inspections of iarcaming loads if other steps are instituted to ensure that -such.. loads do not contain regulated including restrictfug tiro type orwaste received to hous0g1d. waste. Under sttcla conditions, the owner or operator has eliminated the key_ potential source:. of regulated hazardous waste (Le., commercial and industrial waste generators Commenters were also concerned about the difficulty in-determiraing what, constitutes a "suspfcious" load- The Agencf s, intent was to target those incoming leads that have characterfstics suggesting the presence of hazardous 'waste flr PC$ vrastes H'atvever, the Agezrer agrees With the auramenters ilia€ the; term "su§prcinus'" is vague and difficult to deme.The requirement for Inspections of suspicions loads, therefarn_, yeas daleted from the mal rule_ EPA believes, however, that today's �alrecprgemeats disau_wed below regarding- random inspections or other steps ensuring thatincomingloads. do not coutain hazardous vraste or pCE wastes vs. -iii achieve lore Agency's goal of target Incoming loads that raise concerns. The final rude requires the implementation of a; program at the facility€or detecting and preventing the disposal of regulated hazardous wastes and PCS wastes: This programs must include: (11 Random inspections of . incoming loads talose other steps are instituted to er,rn,b tit, incoming loacTs do not rontaf ire rulatedhaaarctouzs waste or PCli wastes, (2} records of any inspectaotrs; (3) ;rtl ftp of facility Personnel toreca, , 1zereQnlated hazardous viaste anri PCB wasters; and (4) procedures for noti€yina authorized States underSrrhtitle-.0 of tC or tiie EPA Regional Administrator if a . reguxlatedhazardous- wast a orPcB - waste is dismvered at the facility. Commenters requested that EPA. define what constitutes an iirspactioa and what is meant try a random . inspection;.These.issues are discussed belong. Under tod'ay's ruler air irspection would involve discixaigirig a waste load and. view tiro contents prior to actin disposal of the waste at the facility, allowing the facility Owner oz- operator to refuse tadispose of wastes deemed inappropriate. hispections could be performed n=ear or adjacent to thz working face of the landfill; Alternative]y,.inspections could be performed otx a tipping poor located near the facility; scale house or inside the site enhance Inspections could also be perfanned at the tipping flour OF transfer stations, prior to the transfer of the waste to the facility. An inspection 511150 Federal Register j Vol. 56, No. 196 f Wednesday, October 9 1991. f Rules and Regulations at a transfer station could operate in lieu of a random inspection of incoming loads at the MSS,'VW. Inspections should be performed by facility personnel trained to recognize regulated hazardous waste or PCB wastes. For an inspection to be adequate, the Inspector should know the nature of all materials received in the load and whether or not they are regulated hazardous waste or PCB wastes. Because It Is not practicable to inspect every load, random inspectioris are required (unless other steps or procedures are taken to ensure that incoming loads do not contain regulated hazardous waste or PCB wastes). Waste brought to the facility in containers used for hazardous materials, In containers not ordinarily used for the disposal of household wastes (e.g., in 55 -gallon drums), or in unmarked containers may warrant inspections. Loads may also warrant inspections if brought to the facility in vehicles not typically used for disposal of municipal solid waste or if transported by haulers who usually transport hazardous waste. For wastes of unknown nature received from sources other than households (e.g., Industrial or commercial establishments), the inspector should question the transporter about the composition of materials brought to the facility for disposal. Commenters also requested that the: Agency clarify what frequency constituted "random" inspections. Today's final rule does not specify a minimum frequency because EPA believes the appropriate frequency for Inspections will vary significantly based on site-specific factors. Such factors Include the owner or operator's knowledge of the waste generator and hauler and the type of waste received. For example, wastes received from a waste generator that the owner or operator has little prior experience with may require more frequent inspections. Likewise, wastes from commercial or Industrial sources may require more frequent Inspections than wastes predominantly from households. The owner or operator should consider these factors, as well as others applicable to his or her facility, In developing an appropriate inspection program. EPA plans to provide additional guidance on this Issue In the technical guidance on this rule described in section VI of today's preamble. Owners and operators of MSWLFs must ensure that all relevant personnel are trained to identify potential regulated hazardous waste and PCB wastes. Relevant personnel may include supervisors, spotters, designated inspectors, equipment operators, and weigh station attendants. The training should emphasize methods to identify containers and labels typical of hazardous waste and PCB waste. Training should also address the proper handling of hazardous waste. Some of this information is provided in courses currently offered to comply with the Occupational Safety and Health Act (OSHA), under 29 CFR 1910.1Zo, Section 258.20 of today's rule requires records of all inspections.' Under § 258.29 of today's rule, these records must be included and maintained in the operating record. Inspection records should include the date and time wastes were received during inspection, names of the hauling fum and driver, source of the wastes, vehicle identification numbers, and all observations made by the inspector. The final rule, however, does provide flexibility to Directors of Approved States, to establish alternative re cordkeeping locations and alternative schedules for recordkeeping and notification requirements. Numerous commenters asked what should be done with hazardous waste - left at the gate or inadvertently accepted at the MSWLF. This includes: What an owner or operator should do if , hazardous material is discovered; who is responsible for removal of the waste; and,, should testing be neves sary to determine whether or not a material is hazardous, who Is responsible for storing the material during testing and what storage protocols apply. Under today's rule, owners and operators must develop procedures to notify the proper authorities if a regul itod hazardous waste is discovered at the facility, as discussed below. The proper authorities should include the State Director in a State authorized to run•a hazardous waste program under subtitle C of RCRA and, in an unauthorized State, the EPA Regional Administrator. The owner,, or operator may be responsible for the regulated hazardous waste upon its discovery at the facility and thus should comply with the applicable regulations. In a State authorized under subtitle C of RCRA, the applicable regulations are generally State regulations. In an unauthorized State, the applicable regulations are the appropriate Federal regulations (primarily those found at 40 GFR parts 260 through 270). Generally, if the owner_ or operator Is able to identify the waste as a regulated hazardous waste while the material is still in the possession of the transporter, and refuses to accept the waste at the MSWL,F, the waste remains the responsibility of the transporter. However, if the owner or operator discovers regulated hazardous waste at the IvISWLF, the owner or operator must ensure that the wastes are treated, stored, or disposed of in accordance with RCRA and applicable State requirements. He or she may choose to keep the wastes on site or to transport them off site to a RCRA subtitle C facility. If the owner or operator transports the wastes off site, he or she must ensure that the wastes are properly manifested and packaged in accordance with 40 CFR part 262 or the analogous authorized State requirements. This would include designating a facility permitted to treat, store, or dispose of the hazardous waste. If the owner or operator decides to Beat, store, or dispose of hazardous wastes on site, he or She must comply with the applicable State and Federal requirements, The requirements for treatment, storage or disposal of hazardous waste vary from State to State. Thus, when located in a State with an authorized program, the owner or operator should consult the State regulations. Z. Section 258.21 Cover Material Requirements The proposed rule specified application of.suitable cover material at the end of each'operating day, or at more frequent intervals, if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging. Under the proposal, the States could temporarily waive the daily cover requirement an a ease -by -case basis In the event of extreme seasonal climate conditions, such as heavy snow or severe freezing, that make this requirement impractical. In the preamble to the proposed rule, EPA recommended that if earthen materials were used, six inches be applied and requested comment on using this approach for the final rule. Many commenters supported the use of earthen materials, suggesting that it either be a minimum of six inches or be sufficient to hold down paper. Cornmenters also recommended that this be incorporated In'the final rule, . In response to these comments, the final rule requires the owner or operator of an MSWLF unit tocover disposed solid waste with six inches of earthen materials [Le., soils) unless an approved State approves alternative cover materials. The Agency selected a six- inch depth based on data that show that six inches of compacted sandy loam are necessary to prevent fly". emergence (Response to Comments Document— Operati ng Criteria). The Agency Federg Register. i? Vol. M. Na. 196 J , Wednesda'y, October 9, 1991 / Rules and Regul'affans -MO51 believes that ley requiring six Iriches� o£ earthen matedals iitwill be easier to implement and- enforce today's rude- EPA believes this requirement wdknat Significantly affect many faeilties because 45 States and Territories already specificallyrequire six irirdtes of earthen material as daily cover and the practice is staadard operating procedure at mostMSWLFs The rule as proposed ally ved other suitable rnatedals to be used as cover and EA specifically requested comment on, what"other matrcriala Wright" be suitable. In response; commenters suggested materials: that included geotextiles, foams, plastic sheet-, tarps, sewage sludge,' fluff'' (non -,metallic residue from: metal shredding operations), municipal waste combustion ash, paper mill -sludges, used asphalt material from street mahitenanc% compuste d yard wastes, wood chip grindings &= tree trimmings, an&even "materials ordinarily disposed of in laadfils" In today's f nal:rale, the Agency has net specified appropriate alternative materials because the Agancy.does not leave suff£cient irzfornration on an materials that could he used as'daily cover arzd does not.ivant tapredude the use of material's that may be found at a later, date to; be a6gaate daily cover' materia% However, to allaiv- ovkmms and operators of MSWLFs to takeadvantage ofnew techna£ogiea or to use cover materials that, address specific go agraphic situations, the final ruli- provides that the: approved States may allow alternative materials of altenmtive thicknesses. Tinier $ 25&23.M. the owner_ or operator, must demonstrate that the alternative material and; thickness will cG tmL disease vectors, fires, odors, bloisrtog litter and scavenge withautpresentin a threat to human health and the environmettL The• Agency plaWs to provide guidance ea this issue inchtdin4 methods for evalua:.ttngalter$atiYa materials, in the technical guidance: for this rifle described in: sear oir V of . . today's preamble. In this guidance, the Agency wM discuss the various alternative materials suggested by commenters and: the Agency's concerns regarding the use of certain materials (e.g., NTWC ashl. An important- aspect of this alternative cover provision is that decisions can be made only by. Spates with EPA -approved programs. These approved programs will erasure that the State will. interact with the owners or operators when approving an alternative cover material, thus: ensuring that the alternative material will be protective of human health and the eaviromueInt. Therefore:, only owners or operators Iocated in States with approved programs have the opporturixty to demonstrate to the State th& alternative matatiala cera tie used. The proposiad rule speccifidd that cover be applied at, the end of each operating 'day, or at mnre frequent intervals if necessary, to control disease vectors, fires, odors, blowinghtter, and. scavenging. IPA requested comments on the appropriate frequencies for applicaiiorr of cover.. Mnmercus commenters addressed this. issue, Marry rural communities criticized tha requirement for daily application of cover, arguing that weekly cover extends the life of the landfill and, given their rural to ca tion, there was Ettle potential of health hazards. Some commenters suggested that the type of waste received (e.a inert materials) be used to determine the frequency of , application. Several commenters suggested that the requiremenf be revisedto state .that, waste should not be exposed for a specified time period, such as 16 or 24 hours, rather than requiring daily cover, Today:'& final rule retains the proposed daily cover requirement because the 'Agericy does not believe the commenters pro ld- d sufficient information to vrar=" t modifications. Baily cover serves several spec fie purpona for protecting human health and the environrneat: ('1l lthelps in disease vector and rodent. eon rol; (21 it helps contain odor, litter, and: air" emissions, which may threaten huriiari health and environment andlor be: . aesthatieally displeasing; (3), it lessens the risk and spread of west and (4) it reduces infiltration of rainwater fry increasingrtm-o€f aad thereby -decreases leachate generation and sarface.and grounel water contamination. Cover material applied less frequently will not be as effective in meethr g these aburve, purposes. As an addManal benefit, daily cover material enhances the site appearance and its utilization after completion, EPA proposed temporarily waiving daily cover for extreme seasonal 'climatic conditions. EPA also asked for comment vn whe£lier there are other. reasons besides extreme seasonal chmaiic condition's -for temporarily exempting daily cover. 6oi menters " suggested that, in addition fa climate, States. be allowed to consider the types and quantities of wastes received, the iocation of the fdcility,'th6 facility design and operation, and the practicable capability of the operator. The Agency decided €fiat the rationales provided by commenters for inctudingfactors jh addition to extreme climatic conditions were. not persuasive enough to be included iii the final rule. The Agency rejected these comments because dairy cover• is a necessary good, h ,ugekeeping practice and should be required regardless of waste types, location of tha facility; and trie design acid operation of the facility. UrJike extreme climatic conditions, ti hiclr make the, Placement o€daily cover very difficult, the conditions: cited by comas enters do not pose, szgugicaiif obutacles tD dazlicover opera tlon, The Agency believes the t•the pro tection provided to human health and the, environment'by dally -cover outweighs any of the dilficulties cited by commenters. - Today"s $rtaf rule, provides that only States with approved programs may approve temporary vr-aivers for extreme seasonal climatic conditions because the Agency believes that the State should be involved in deciding. wbefher a waiverisnecessdry.Irr'addition, States without approved programs may not have the procedures or authority to implement these waivers. 3. Sectiern 258,22 . Disease nectar Crantr'oI The Agency did not receive any ' comments on the proposed disease ' vector requirement and has retained it in the hrial rule. Thus, as proposed; - today's rule requires that, each owner or cperator of an MSWi.Fprevent or ' control on-site disease vector populations. using appropriate techniques .to protectbumanhealth and the environment, This standard is - inteirded to prevent the fac€lity, from befriga,breedinggrou€ d, habitat, or" feeding area for disease vector populations, Vector control activities are to be undertaken in conjunction with the application of cover AaaterfaI required by $ 258.25. If cover material requirements prove insufficient to ensure vector contror, other steps must be taken by the owner -or operator to .ensure such caiitioL (e.g, shredding'the waste). Methods for controllfng disease vectors will be discussed- in the technical guidance document for this- rule. hisrule. g Sectivir258.23 TxploaiveGases Control The dacomposition of solid waste (in particular-, houseliold waste) produces methane, as explosive gas. The accumulatiorr of urethane in MSWLF structures can result in fire and explosions that can Injure or kill 5.052 Federal Register j Vol. 55, No. 196 J Wednesday, October 9, 1991 j Rules and Regulations employees, users of the'disposal site, and occupants of nearby structures, and can damage containment structures and thereby cause the emission of toxic fumes. For this xeason. EPA established an explosive gas criterion in § 257.3-,8 of the original subtitle D Criteria to control the concentration of methane in facility structures and at the property boundary. Specifically, § 257.3 required that the concentration of methane generated by the MSWLF not exceed 25 percent of the lower explosive limit (LEL) in facility structures (excluding gas control or recovery system components) and that it not exceed the LEL itself at the property boundary, EPA expanded this requirement in § 258.23 of the proposed rule by requiring the owner or operator to conduct subsurface and facility structure gas monitoring at least quarterly to ensure methane control. In addition, EPA proposed that if methane exceeds the limits specified, the owner or operator must take necessary steps to ensure protection of human health and Immediately notify the State of the level detected and the steps taken to protect human health. Such steps could include evacuation and ventilation of affected buildings. The Agency also proposed that the owner or operator submit a remediation plan to the States within 14 days of the methane limits having been exceeded. This plan must describe the nature and extent of the problem and the proposed remedy. The proposal listed site-specific factors that control the rate and extent of gas migration, which should be considered to determine the type and optimal frequency of monitoring (which In some instances may be mare than quarterly). These factors include: soil conditions, hydrogeologic conditions surrounding the disposal site, hydraulic conditions surrounding the disposal site, and the location of facility structures relative to property boundaries. Many commenters criticized the minimum frequency of quarterly monitoring and recommended that States be allowed to specify the monitoring frequency. Some also suggested that exceptions to quarterly monitoring be permittedbased on climate (either dry or cold), type or quantity of waste disposed, and distance from structures or other facillties. The Agency decided to retain the minimum quarterly monitoring frequency requirement because the Agency was not persuaded that dry or cold climates, type or quantity of waste disposed, and location of the facility should be factors for waiving quarterly monitoring. Catastrophic results may occur if methane levels remain unchecked; therefore, the .Agency believes for safety reasons It is necessary to retain the minimum quarterly frequency for methane monitoring in the final rulemaking. The Agency believes that methane monitoring is critical because it provides an early warning of potential methane build-up that may lead to explosions, and that quarterly monitoring accounts for the seasonal variations in subsurface gas migration patterns. As mentioned above, EPA also proposed that certain steps be taken if methane gas levels exceeding the specified,limits are detected, The Agency did not receive any comments on the proposed § 25a.23(c) (1) and (2), which required the owner or operator to take all necessary steps to protect human health and immediately notify the State of methane levels detected and actions taken. Therefore, EPA retained these provisions as proposed, with minor modifications in keeping with the self -implementing aspects of today's final rule. EPA has clarified the rule language by requiring the owner or operator to notify the State immediately when the methane limits have been exceeded, and within seven days place in the operating record documentation of the methane gas levels detected and a description of the interim steps taken to protect human health. The Agency believes that seven days is adequate time for the owner or operator to place the documentation in the operating record. However, the Agency is allowing the State Director to establish alternative recordkeeping locations and alternative schedules for recordkeeping and notification requirements. The Agency included the operating record provision to ensure that there is proper documentation if methane levels are exceeded and to facilitate citizen suits. EPA received numerous comments regarding proposed § 256.23(c)(3), which required the owner or operator to submit a methane remediation plan wi thin 14 days. Many commenters criticized the 14 -day period for submitting a remediation plan as being unrealistically short Commenters said that plans for interim measures could be submitted in that time frame to ensure the immediate protection of human health and the environment, but that determination of the problem and the exact nature of remediation would take much longer. Proposed time schedules ranged from 30 to 90 days. The Agency agrees with these commenters that the 14 -day . response time was not a realistic time period to allow an owner or operator to make a complete determination of the methane problem and to adequately evaluate the alternatives for remedial action to alleviate the problem and to submit a remediation plan. The Agency considered the alternative time frames, ranging from 30 to 90 days, suggested by the commenters. The Agency determined that 60 days will provide adequate time for an owner or operator to develop and place in the operating record a remediation plan that would describe the nature and extent of the problem and the proposed remedy without causing undue threat to human health, and modified the final rule accordingly. This 6G -day time period is needed to provide adequate time for the owner or operator to contact, if necessary, knowledgeable outside parties to assist in the development of the remediation plan,.which should include determination of the exact location and extent of the methane gas problem, determination of the need for and location of interceptor gas collection trenches, and a decision as to whether venting of structures and subsurface gas withdrawal is necessary. EPA does not believe that allowing this additional time compromises the protection of human health and the environment because, under § 258.23(c)(1), the owner or operator still must take all necessary steps to ensure immediate protection of human health, including interim measures, if methane gas levels exceed the specified limits. Rather, a reasonable specific tie period for the development of a plan facilitates the self - implementing nature of today's rule. The Agency also modified the rule to ,require the owner or operator to place the remediation plat in the operating record and to notify the State. The plan is then to be implemented once it has been placed In the operating record. The Agency added this requirement to the final rule to provide a mechanism to ensure that the owner or'operator develops a remediation plan, when necessary, and that the plan is made available for State and public review. The final rule allows Directors of approved States to establish alternative recordkeeping locations and alternative schedules for recordkeeping and notification requirements. 5. Section 258.24 Air Criteria Under § 258.24(a), EPA proposed to require that MSWL F's not violate applicable requirements of State Implementation Plans (SIPS) under section 110 of the Clean Air Act (CAA). Section 258.24(b) proposed to prohibit open burning (i.e., uncontrolled or unconfined combustion) of solid waste Federal Register Vol. 55, leo. 196Wednesday,, October 9, 1991, f Rules and Regulations 5103 but allow infrequent burning of agricultural wastes, sllvicultural wastes, ` land -clearing debris, diseased trees, debris from emergency cleanup operations, and ordnance (e.g., ammunition and bombs). These requirements were already in effect under part 257. In the proposed rule, the Agency clarified that empty pesticide containers or waste pesticides were not exempted agricultural wastes. This interpretation has been used by the Agency in implementing the air criteria requirements for solid waste disposal facilities under 40 CFR part 257 (see 44 FR 53438). Today's final rule is unchanged from that proposed, with the exception that ordnance has been deleted from the list of wastes that may be burned at MSWLFs. This is because the Agency recognizes that ordnance (e.g., ammunition and bombs) may he capable of detonation and exhibits the characteristic of reactivity, and is thus tegulated as a hazardous waste (40 CFR 261.23). Under existing regulations, all hazardous waste must be transported to a hazardous waste treatment, storage or disposal facility that has received either interim status or. a RCRA part 13 permit under 40 CFR part 270, therefore, ordnance may not be open -burned at an MSWLF. In the preamble to the proposal, EPA noted that MSWLF air emissions, other' than from open burning, would be regulated under the CAA section 111(b) for new landfills and section 111(d) for existing landfills at some future date. Several commenters criticized the Agency's decision to regulate emissions from MSWI,Fs under these sections of the CAA, stating that the CAA's structure is cumbersome end ill-suited to address the control of air emissions ' from. landfills. They suggested that these emissions be regulated under subtitle D. EPA disagrees with these commenters. The Clean Air Act is the Agency's primary statutory authority for addressing air quality concerns: As such, EPA believes it is appropriate to regulate air emissions from MSWLFs under the CAA. Therefore, under section 111(d). EPA is planning to propose air emission regulations to be adopted and used by the States to prepare plans for controlling air emissions from MSWLF units, Although a few commenters . expressed support for the ban an open burning, small rural communities expressed widespread opposition. Commenters opposing the ban stated that burning reduces the volume to be buried and thereby extends the useful life of a landfill, poses less of a threat to the environment than does burying raw garbage (i.e:, that pollution caused by burning was probably less, of a problem .than ground --,Wer pollutioin caused by burying), dogs not attract rgdents and wild animaIaq, and elimintis the methane problem. Marty commenters argued that the burning of yard waste (particularly brush, tree limbs, undiseesed trees, and untreated wood products) should be allowed. Some commenters argued that prohibiting . open burning would increase the cost of solid waste disposal. Others argued that, if existing small landfills were forced to close, uncontrolled burns and midnight dumping would increase. EPA originally established the ban on open burning in 1979 in the part 257 Criteria. The ` rationale for banning open burning of solid waste in 1979 is equally applicable today; that is, the hazards posed to, human healthby allowing the open burning of solid waste (e.g., the increase in particulate emissions, decreased safety) outweigh any,benefits derived from the practice. For example, EPA has data indicating that smoke from open ' burning can reduce aircraft and automobile visibility and has been linked to automobile accidents and deaths on expressways. Open burning may result in uncontrolled emissions of hazardous constituents that pose a threat to human health and the environment. Furthermore, commenters did not submit data to support their claims thaf open burning poses less of an environmental threat than does landfilling the waste, EPA decided that any cost savings did not outweigh the. benefits to human health and the environment in this case. For the reasons described above, EPA retained the open burning prohibition in today's final rulemaking. Numerous commenters expressed support for burning yard waste al MSWLFs using trench incinerators, pit burners, or air curtain destructors. _ Commenters stated that air curtain destructors have been shown to reduce waste volume by 98 and particulate air emissions by 80--90%. EPA carefully reviewed the data submitted by . commenters on this issue. Although there has been some improvement in this technology over the last ten years, EPA concluded that these devices still emit unacceptable levels of particulates. While trench incinerators, pit burners and air curtain destructors reduce air emissions by 8040, FDA's test data indicates that such particulate emission are similar to particulate emissions from open burning (reference: Background Document Operating. Criteria). Furthermore, because these devices do not control the emission of combustion products, they are considered "open burning." Open burning is defined under § 258,2 as the combustion of solid waste (1) without control of combustion air to maintain adequate temperature for efficient combustion; (2) without containment of the combustion reaction, in an enclosed device to provide sufficient residence time and mixing for complete combustion; and (3) without the control of the emission of the combustion products (see also 40 CFR 257.3-7(c)). The Agency would also like to note that although open burning of most wastes is prohibited at MSWLFs under the final rule, infrequent burning of, certain materials is permitted. Materials that may be burned infrequently are agricultural wastes, silvicultural wastes,d lan-clearing debris, diseased trees, and debris from emergency cleanup operations. This approach is consistent with l PAS existing requirements at 40 CFR part 257 far solid waste, disposal facilities and practices (see 44 FR 53458, September 13, 1979). The open burning of these materials is not typically an, ongoing practice and, thus, does not present a significant environmental risk.' In addition, destruction of disease - carrying trees or debris from emergency operations provides an added . , • . environmental benefit in preventing chances of disease or accident. Today's final' criteria do require that the conduct of these infrequent acts of burning must be in compliance with applicable requirements under the State SIPS. In response to comments, EPA is clarifying today that the open burning of yard wastes, pesticide containers, and wooden pallets isnot an allowed practice. Open burning shduld be conducted in areas dedicated for that purpose at a distance from the landfill unit so as to preclude the accidental burning of other solid waste. 6, Section 258,25 Access Requirements EPA proposed to require control of public access to new and existing MSWLF units to prevent illegal dumping of wastes,'public exposure to hazards at MSWLFs, and unauthorized vehicular traffic. Access control is a key element in preventing injury or death at these facilities. The proposal "also. required the use of artificial or natural barriers, as, necessary, to prevent illegal dumping of wastes and unauthorized -vehicular . traffic. This requirement is intended to s prevent the illegal disposal of regulated m hazardous waste as defined under 40 CFR part 261 and PCB wastes as defined under 40 CFR part 761 and unauthorized vehicular traffic when the facility is closed, not to prevent access for controlled disposal, 59.051 Federal Register ! Vol. 56, No. 196 / Wednesday* Octobar 9 1991 f Rules and Regulations A few commenters were concerned that dumping outside the MSWLF would occur if the site were not accessible at 1331 !Imes. They recommended that the rule be revised to ensure site access at all limes. The Agency disagrees that requiring the facility to be accessible to the public at all times to prevent the problem of dumping wastes outside the landfill area during off -hours outweighs the potential problems that may occur with uncontrolled access. Access control is necessary to prevent illegal dumping of hazardous vti;astes and direct public exposure to salid waste and is a key element in preventing injury or death at MSMW& The Importance of access control cannot be overstated, because people have suffered injury and even death at uncontrolled waste disposal facilities. The most effective means of minimizing the risk of Injury to persons (other than users of the MSWLF) is to completely prohibit (e.g., by suitable fencing) access to the site by unauthorized users. %finimizing the risk of lniury to users of the MSWLF, anot erpurposeoftoday'srequirement-, can be met by strictly controlling disposal on site. In areas where access is necessary after the landfill is closed, the owner or operator may vivant to place a waste receptor just outside the facility far disposal of waste during hours that the facility is closed- For the above reasons, EPA decided to retain in the final rule, the proposed approach. 7.. Section 256,-476 Hun-ort/Run-oft` contmisystems The proposed rule required Ehe, owner or operator of an MSWLF to design, construct, and maintain anus -on control system to prevmA flow onto the active portion of the MSIVLF during; peak discharge of a 25 year storm. The purpcse of the run-on standard is to minimize the amount of surface water entering the landfill facility. lour! -on controls prevent (1) erosion, which may damage the physical structure of the landfiiI: (2) the surface discharge of wastes In solution or suspension, and (3) the downward percolation of run-on througliwastes, creating leachate. The proposed rule also required that the owner or operator of an MSWLF design, construct, and maintain a system to control run-off from the active portion Of the landfill. The run-off control system must collect and control, at a tninImurn, the water volume resulting from a 24-hour, 25 -year storm. Run-off from the active portion of the unit must be handled in accordance with $ 258.27 of the proposal Ja order to ensure that the CWA NPDES requirements and =A sectlons 208 and 3I9 requirements are not viclated.The Agency chose the 24-hour period because it is an average that includes storms of high Intensity with short duration and storms of low intensity with long duration. Several commenters suggested that (1) the run-on{ruri-off control system be required to handle a IOG-year storm and (2) the ran -off be collected, sampled, and analyzed prior to Its release. to surface waters rather than after the water Is released. In. today's. final rule, the Agency retained the language ofthe proposal because FPA believes that the 25 year storm requirement is more appropriate than tha lOD-year storm requirement for MSWI Fs. The former is a more widely used standard and is the current standard used for hazardous waste landfills. In addition, the Agency could not identify any existing case studies that challenged. the Agency's assumption that the 2a -year storm design is protective of human health and the environment. EPA has no Information that warrants a more restrictive standard for MSVVUs than for hazardous waste landfills, In response to the comment regarding testing ofrtzzi-off, the Agency would'hke to clarify that the proposedrule, and today`s final rule, calls for the owner or operator to collect and control the run- off from the active portion of the landfill. It does not require that the collected run-off be sampled or treated, but rather that it be handled in accordance with: the requirements of the Clean Water Act including, but not limited to, the NFDES requirements (see f. 258.27(a)). The owner or operator`s NPDES permit may require !_tie facility to sample run-off prior to surface water release, EPA believes that the Clean Water Act is the appropriate mechanism for ensuring that Point source discharges are -protective of human health and the enviroriment, 8. Section 258,27 Surface Water Requirements It is essential that solid waste activities not adversely affect the quality of the nation*s surface waters. The regulations as proposed prohibited any NISWLF unit from (1) causing a discharge of pollutants into waters of the United States, incIudingwetlands. that violates any requirement of the CWA, including, but not limited to, NPBES requirarnents; and (2)'causing a nonpaint source of pollution to the waters of the United States, including wetlands, that violates any requirements of a state-wide or area -wide water quality manageniffrit plan under section 208 or section 319 of the CWA. The proposed � 258•.27 requirement is the same as the surface water criterion. currently in effect under part 257, Commenters were concerned over the proposed relationship between RCF A, and the CWA. One commenter . recommended that monitoring requirements for MSWI-vs be, developed either under subtitle 13 or under the NPDES program and that they be tailored for solid waste disposal facilities. Another commenter requested that the proposed subtitle D rules specify requirements• to be added to NPDES permits. The Agency decided to retah in the: final rule, the proposed approach Linder section 1.006 of RCRA„ EPA.is required to integrate, to the maximum extent practicable, the provisions of RCRA with other statutes, including the L'tAr`A, Under today`s approach, NPDES requtremeats for landfills wMi be implemented under the NPDES permitting program, becauseNPDES permits are site-specific and NPDES permit writers are in the best positioxi to ensure that the surface water requirements are met for MSWF Fs. Moreover, as discussed previously, enforcement under subtitle D is limited to instances where EPA has found the State program to be inadequate. The EWA does not have similar limitations on EPA's enforcement authority, T. the Agency believes that compliance with surface wa€erregulations is best suited to mechanisms already established under the CWA. Under today's final regulations, any discharge of pollutants from MSVvW units into the waters of the United States must comply with regulations developed under the CWA, including section 402 (NPDES permits)_ Regulations that specifically address compliance of MSWLF units wfth the CWA vrill be' developed under the CWA as'needed. Although EPA has not yet specifically eatablished national limits for discharge to surface water from MSWLFa, discharge limits are set an s case-by-case basis. The Agency may, however, issue national limits for MSWLF discharges at ala ter date., A commenter requested that the proposed regulations specify the circumstances that trigger the Arany Corps of Engineers' jurisdiction with regard. to NPDES permits. Under section 402 of the CWA, EPA (and States approved by EPA) has jurisdiction for the discharge of all pollutants [other, than dredged and fall material] into waters of the Un%ted States. Under sect%on, 404 of the CWA, both the Corps of Engineers and EPA have jurisdictiort over the discharge of dredged and fill materials into wate--s of the U;S. Federal RegisterVol. 56, No.196j Weclnesday;�October 9, 1991 f, Rules and Regulations 5105 The Agency retained § 258.27(b) of the proposed rule in the final rulemaking. This requirement specifies that any discharges of a nonpoint source of pollution from an MSWLF' into tiiraters of the United States must be in conformance with any established water quality management plan developed under section 208 or section 319 of the CWA. 9. Section 258.28 Liquids Restrictions EPA's proposed rule prohibited the disposal in MSWLFs of bulk or noncontainerized liquid -wastes, except '(1) household was Les .(other than septic wastes) and (2) leachate and gas condensate that is derived from the MSWLF unit where the unit is equipped with a .composite liner and a leachate collection system (LCS) designed and constructed to maintain less than 30 centimeters of leachate over the liner, Containers of liquid waste could be placed in MSWLFs only"when the containers (1) were small containers of the size, typically found in household waste; (2) were designed to hold liquids for use other than storage; or (3) held household waste. The proposed rule required the owner or operator to determine if the wastes (e.g., septic wastes, municipal wastewater sludge) are liquid wastes by the Paint Filter Liquids Test method (Method 9095 as described in "Test Methods for Evaluating Solid Wastes, Physical/ Chemical Methods." EPA Publication No. SW -846). The rationale for.each of these proposed provisions is included in the preamble to the proposed rule (see 53 FR 33340, August 30, 1988). Numerous commenters expressed opposition to the general concept of restricting the amounts of liquids that are disposed of in MSWLFs. Many - commenters believed that the proposed restrictions would require separate disposal facilities for liquid waste. The Agency believes that liquids restrictions are necessary because the disposal of liquids into landfills can be a significant source of leachate generation, By restrictir- the - introduction of liquids into landfills through a ban on the disposal of bulk {except nonseptic waste from households and recirculated leachate and gas condensate at facilities that meet the specific design requirements) and containerized wastes, EPA expects to minimize the leachate generation potential of landfills. This should reduce the quantity of free liquids to be managed in MSWLFs, which in turn should reduce the risk of liner failure and subsequent contamination of the ground water. The ban ori containerized free liquids (except those from households) will also reduce the Problem of subsidence and possible damage to the final covdr upon possible deterioration of the waste containers. EPA does recognize that restricting certain small volume liquids may be : impractical and unnecessary to protect human health and the environment. For example, small amounts of liquid will be present in household wastes when disposed and maybe difficult to effectively identify, separate, and restrict from disposal. For this reason, the final rule exempts household waste, except septic wastes, from the bulk and noncontaineiiized liquids restrictions. Septic waste is not'.exempted because it can be easily identified and will contain significant amounts of liquid if it fails the Paint Filter Liquids Test method. As proposed, the final rule continues to exempt certain small containers (e.g., beverage containers) and certain other wastes from the containerized liquids ban because they -are not likely to contribute substantial amounts of liquids to most landfills. However, the Agency recognizes that certain small containers (e.g., paint cans) contain . "household hazardous wastes; the Agency recommends that such, wastes be managed through household hazardous waste collection programs present in many communities. Commenters suggested considering sail, ground -water levels, climate, and history of landfill operations to determine if liquid wastes can be accepted at a particular Iandfill.without endanger''U9the environment or operation of the landfill. Many commenters believed that the State should have more flexibility determuiing whether bulk or non -containerized .- liquids should be disposed of.ln . MSWLFs. The Agency does not agree.with these comments. EPA,believes that the problems associated with disposal of bulk and containerized liquids, as discussed above, are relevant to all landfills regardless of location (i.e., climatic and geologic factors), and thus waivers to this requirement based on location would not be appropriate (Reference: Background Document-- Operating"Criteria). Numerous commenters were concerned with the practicability of finding alternative disposal methods for wastes such $s septic tank, grease trap, oily water, and sand trap wastes. EPA believes that the 18 -month period • between the promulgation date and the effective date of the rule is adequate time to allow liquid waste disposers •to develop alternatives to liquids disposal in MSWLFs. However, the Agency Wishes to clarify that although liquid materials; such as septic tank, grease trap, oily water and sand trap wastes . that fail. the Paint Filter Liquids Test method are banned, they can be " solidified prior to their disposal in MSWLFs. Possible solidification methods include the addition bf absorbent materials. The solidified wastes must pass'the Paint Filter Liquids Test method. The Agency specifically requested in the preamble to the proposed rule the submittal of any data on the benefits of effects of leachate recirculation. The 'Agency received numerous differing opinions regardirig leachate recirculation. Some commenters expressed support, stating that moisture promotes the decomposition of wastes and stabilization of the landfill and conserves the nutrients required for stabilization, improves leachate quality, - increases the quantity and'quality of . methane production, and.decreases the time the landfill is generating contaminated leachate. Those opposed. to leachate recirculation noted that -it was unlikely that a collection system could maintain a leachate head of 30 - centimeters in a humid area. They recommended that EPA only allow. leachate recirculation in and locations for which field experience'shows that recirculation will not produce a , : significant leachate Bead within,the unit, The Agency recognizes that laridfills are, in effect, biological systems that . require moisture for decomposition to occur and that this moisture promotes decomposition of the wastes and stabilization of the landfill. Limited' studies have indicated that leachate recirculation has -certain benefits, which include increasing the rate of waste stabilization, improving leachate quality, and "increasing the quantity and quality of methane gas production: " Leachate recliculation may also be a very useful tool for management of leachate (Reference: Background Document ---:Operating). - On the other hand; the Agency believes that many landfills, particularly those in humid areas, already have sufficient liquid for decomposition and thus the intentional addition of liquids is unnecessary. The wastes received at landfills already, contain moisture (10 percent to 35 percent by volume), and more is added by rainfall and by the decomposition process itself. Moreover, the Agency recognizes that potential operational problems associated with leachate recirculation, such as increase in•leachate production, clogging of the leachate collection system, buildup of hydraulic head within the unit, increase 5,.055 ): edaral Register f idol. 5t , No. 196 j Wednesday, October 3, 1991 1 Rules and Regula€ oras in air emissions and odor problems, and Increase in potential of leachate pollutant releases. due to drift and/or run-off, may, result in adverse impacts on human health and the environment_ The Agency recognizes that there are pros and cores on the issue of leachate recirculation and that the information on leachate recirculation is limited in some areas. Because the Agency has data that Indicate that there are benefits associated with recirculating leachate, the Agency believes that a ban on leachate recirculation is inappropriate (Reference: Background Document— Opera Ung ocumentOperating Criteria). The Agency believes that leachate recirculation should only be allowed when (X) specified design controls have been inslalled at the MS'VVLF unit and (2} recirculation does not produce a significant leachate head within the unit. The proposed rule specified that leachate and gas condensate derived from the MSWIF unit would be exempt from the liquids prohibition if the unit were equipped with a composite liner and a.leachete collection system designed and constructed to maintain less than 30 -centimeters of leachate aver the liner. The Agency received several comments on the proposed design for leachate and gas condensate recirculation. In general, those that commented objected to the proposed liner requirements for leachate recirculation. Commenters said that the composite liner was an unnecessary lrerequisite for the recirculation of eachate- Several stated that liners should not be required far all landfills, one commenter noting that the composite liner described would be difficult to construct in many areas due to the absence of clay. Others supported a waiver based on geology, precipitation, evapotranspiration. use. of a leachate collection system, and spraying pattern. One commenter recommended that alternative designs be considered (e.g., the use of slurry walls), The Agency believes that a composite liner is necessary for leachate and gas condensate recirculation. Specifically, a composite liner with a:leachate collection system designed and constructed to maintain less than. a 30 - centimeter depth of leachate over the I€ner is necessary to ensure protection of human health and the environment. The Agency believes that the composite liner design., which consists of a two -foot Iayer of compacted soil with hydraulic conductivity of no more than (1XiG-� centimeters per second with a 30 -mil flexible membrane liner (FLAIL) componene installed in direct and uniform contact above the compacted - soil component, provides protection necessary to ensure that contaminant migration to the aquifer is controlled. First, the FML portion of the liner will increase leachate collection efficiency and provide a more effective Hydraulic barrier. Second, the soil portion will pravide support for the FML and the leachate collection system and act as a back-up in the event of failure of the FI L. The composite liner with, a. leachate collection system design is the same- as that used for the uniform design standard under § 258.40(a) of this rule. For a detailed discussion on the requirements and rationale for the composite liner, see the design criteria discussion in appendix E. Unlike other MSWLFs, those operating with leacha te. recirculation must be designed, at a minimum, with the composite liner described above. The Agency considered less stringent designs but determined that variances to the composite design: should not be allowed, even in approved States, because the composite design.ensures Ieachate collection efficiency, a necessary component of a successful leachate recirculation program. Therefore; owners or operatora of MSWLFs in approved States cannat use alternative designs provided for in § 258.4a of today`s rule if they wish to recirculate leachate. The owner/operator must notifythe State Director that documentation of the landfill. design Is located in the facility's operating record. Today's final role allows the State 131redtor to specify alternative recordkeeping locations. and alternative schedules forrecordkeeping and notification requirements. Other commenters recommended use of a double flexible membrane system with a leachate collection system either benes th the bo ttom liner or between the two liners in lieu of the composite liner. Another commenter started that, &-ten, the greater potential for release oi'.liquid from the facility, the most: stringent containment requirements should be applied to facilities that recirculate leachate. FPA does not agree that a double flexible membrane liner system without a soil component would be as protective as the composite liner, as defined A compacted-soil'component is necessary `for prop er function of the FML component. It provides support and a ' back-up mechanism in case of failure of the FML component. The Agency also believes; that the composite liner and leachate collection system.is the most stringent design necessary for MSWLF units that: recirculate leachate or gas condensate. The rationale for choostna this design is discussed in detail in appendix E of today's: rulemaldrsg,. The proposed rale defined gas condensate as "the Iiquid generated as a result of the gas collection and recovery process at the municipal solid waste landfill units.." Several commenters stated that it isnot clear whether gas. condensate recirculation means solely the discharge of liquid condensate into the refuse mass or whether it includes the combination of the condensate and the leachate from the leachate collect~on system. The Agency uses the terra "gas condensate recirculation" to mean the, discharge of the liquid condensate fnto the refuse mass. If the condensate is combined into the leachate collection system and the leachate- is discharged back into the refuse,rnass, then this also is recirculatiosi and the necessary design is required. In. order to clarify this even further, the Agency revised the definition of gas condensate to include only the condensate generated From the gas recovery process and not tainclude the condensate that is inadvertently generated from the gas collection system. EPA received no comments supporting a ban of gas condensate recirculation. As a result, the Agency decided tit idlovv gas condensate recirculation at facilities with the design described above because the quantitiesinvolved are small, and gas collection hag benefits to the environment through tha recOWMT of energy and the control of gas. migration. 70. Section 25s.28 Recardkeeping Re¢uirements The proposed rule required that information be recorded and retained by the Gwraer or operator of each MSM11F. Information to be retained included: Inspection records, training procedures, and notification procedures required under § Z58.20; gas monitoring results from monitoring required by $ 258.23; closure and post-elosureplans as required by g§ 258.30(bl and 258.31(cI; and monitoring. testing, and analytical data required by the ground -water monitoring requirements under subpart Although the proposed rule specified that certain documents he retained (including ground -water monitoring, testing, and analytical data required by subpart El, EPA received comments requesting that additional documentation preparedd by the owner or operator be retained. Commenters specifically requested that documentation concerning the siting process desianplans, and the financial Federal Registei! I Vad. 56, No, 196 f 'Wednesday, Dctober, 9, 299-• ,/ Rules ;and Regulations S24S'l status of the facility be included. Today's •r le adds additional recordkeepirig requirements cgnsistent with the intent of.the ,proposed rule and continents received. The following document$.have been added to .the. recordkeepingrequiromentsi Any location restriction -demon tration required under subpart:B; unit design documentation fgr1eachate andgas condensate recirculation as required under j 258,28f a)t2); aid any post estimates and financial doeuznentation required by subpart G=of this part. Today ':s rale provides that the information be, maintained inan . operating.recor.&EP r,'s intent, stated in the -preamble t4 the °propcsed.rule, was that the recordkeeping docinnents be kept in a single location, Byiequirmg the owner or operator tokeepthe recordkeeging documen-' In the .: operatingrecord, -today's fiiiel,rule clarifies F.PP ;s sta`[eda.t�#. `4aday's final mle xegl sires ,that,the op -rating record be maintained nearAe ii I ity. 'The appropriate iocatioia.t,. e the facility itself, or the c6rporate headquarters:or.city ball, dependiRS on the size sof alae landfill amVor fire ownership,of thelaandfiiH Bemids should be retained throughout the, life ,of the facility, includingpost-ooh a care. Documents should be oganiaed,legible, dated, ,and signed by .the -appropriate personnel. Upon compleficn oieach docutnenk.recluired_inth�pera'ttng - rec6rd, the pw.ner or open &tor 4us t notify the •;;tate Director of its existence. This requireame3nt applies:to amers and operators ,in both.approvava unapproved States. The Dlh r of au Approved State has $lie flexrty to establish alternative.locationefor recordkeeping.aud alternAlvsechedules for recordkeepirig land rialif cation requirements. - omrnaziters comm dedmaking MS ,LF records availabL to tie public, suggestiiag that these datawpkelevant for citizen enforcement, 20-4 commenters• suggestedthalh4> omission of any requirements in tle)rnposed XUle to submit data to the S&iarsn make them available to the pLccmrid offent€viely elimi oa to an?tviiilzsa enforcement of the regul tinnLon the other hand, trnather coritgienter proposed that EPAallowflia,ttates more fiExibilitytil deiea;4,evAat records should be.keptm tha jaeiliiy and made.available for p%lic review. >ypA agrees that puhlica slo' MSWi:Frenords ei`eher diredil,' the oWyncr or "oper�or nribirwss ' late is essential. l'herefore, today's Ziabe req ulres -the o'wnrr,o3r Oinrattor to:etain the operating recur l -near thelaci4y and to furnish the information,to the State upon request, ar to hake it available to the State during reasonable . times. The informationoliould be available in mosiSLates 16 citizens through a State Freedom of information Act request. Appendix E—Supplemeetal Inforrrmatioth for -SubpartD--Design-Criteria O endew Df;PMPOsedftdO Section 2. &U(a) -of the proposal established a-pedormance standard based an rides that wouldregi;ire new , MSWLFs to be designed ivithliner systems, leachate •collection systems (LCSs), and -final covers, as'nebessary to meet the design,goal intlieaquifer at.the waste management unit #oundary or.an alternative boundary, us 'specified by the State. As proposed the design ,goal. would be an overall,ground water carcinogernc risR level estalilis`lred by the State: Ata minlraum, 4he riesign.godl under proposed I.25B.40N would have to fall within theiprolecti,.exiikxanoe .uf 1X10-4 to .X10 -'.and encompass risks posed -by ovei 200 bazartlous constituents listed in the,oroposeed- app enaix E.' To camply with the proposeA - requirements, an.owner or.opexator would have to develop and propose .a design that would addeve .floe Btate specified design goal in the aguiier.ai the waste mana&iietitunitboundary or a'lterrufflye.baaindary_ rills would_ involve modeling the xelea9e.of appendix 11 constituents from the landfill -equippedwith the .proposes! design; to predict the coricetrationaf the various constituents in ground- water, and then determining whether the combined risks posed by'these constituents Fell within We State-. specified-designgoal. Under.proposed 758.40(c), the -State would:evaluate the proposed design considering the followingfactoxs-, (1),1t 6hydrogeologic characteristics of thefa.cilityAnd surrounding land, (2) thedimaticfactors of the'area, .(3) the volume and physical characteristics of the leachate, 44)the proArnity to groi and watei;: and J5) the quality ofgmund-water.. ; In the preainhle _to the . ropoaed rule, EPA described andxequeked.comments on •several possible aiternatirresfo the proposed approach. -These alternatives include various alternative performance standards, a uniform-design�standard .[.with"and -without variances), and the categorical approach Ise a;53:FR 33354 - through 33385; August 30, 1988), As indicated above, the Agency . proposed.one design stan4ard for -new MSWLFs that addressed theliner.and leachate collection system, as well as a . the final cover system -1n developing the -final rule, EPA determined thatitwould beclearerand!rmre:appropriate to present sepamte:dedi1grireq=.:ernencs for the liner•/lea-dhate collection system and the final cover system in the finalsxule. Faeh of these,can.tairiment components play unique roles ininin#mizing releases from the landfill. The.IffierJleachate colleclion systemis relied onto minimiie releases primarily during the operatinglife of the MSWLF, -while the final -cover provides the.pximary long term pr;otection.after!closure of the landfill. Therefore, EPA Is presenting the requirements,applicable.to these components in separate:snctions of today's rule. Specifically, the lfnerl leachate -collection system requirements have been retained:in3gubpariD, while the Final covet requiriements fornew and - existing units have baler moved: to subpart F. 2. Summary of Comments 'While g few-ccnernenters generally supported the ,proposed:xisk based perfornadxice standarzi,'the majority of commenters opposed it. Several . commenters o gued;that this approach failed to�eslablishminimum national standardp; while dearly all commenters raised major concerns about the implementaWn:9f the proposed approach. -These concerns were reflected -hat only in written cowmen% bi: t also expressed by State and.:local governanents, .the rims to management industry, and environmental groups duringmeethigsheld evith EPA durkS thepublic•commentperiod. Summaries of these meetings .can be found in the .. �docketfbr thlg.iulemaking. , Several cominnnters asserted that if FPA adopted the proposed approach it would be ,abdicating the.Agency s role u1settingmirtimum aattionalstandards. I_hese commenters .argued that it;s EPA's role, nut the States', -to .set the design goal, (i;e., riskievel in grnundwa'ter):forl' SWLfs.�Secand, many nonimenters viewed fbe psoposed risk-based approach to .be .so complex that itwouid xes Lilt in -inadequate designs inmanycas es. -tommmiters atsoxaisedthree. major concerns about the implementaiton of the proposed approach.First, `•• ' commentersbellevedthat'there is insufficient teohmcal irdorma'tion available to :implements rides -based approach. Numerous corsthon'ters questioned wliether risk assessment methodologies werelaneiinugh develaped to support the proposed approach. Some commaniersstrongly. criticized EPN s x1.raft risiz algoriffun. which EPA su ested as a prelhniraary 51053 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 J Rules and Regulations w tool for implementing the proposal. Others pointed out that the lack of EPA - approved concentration or risk levels for many of the hazardous constituents in proposed appendix 11 would make implementation even more difficult. Second, numerous commenters stated that most States and owners and operators do not have the technical expertise or resources necessary :for successful implementation of the proposed standard. These commenters argued that most States do not have the resources to establish acceptable concentration or risk levels for compounds that lack EPA -approved standards, or to review designs based on complex modeling. Other commenters stated that owners and operators do not have the expertise or resources in most cases to complete comprehensive modeling addressing all appendix 11 compounds. Some commenters indicated that local governments would likely end up spending an inordinate amount of their limited resources on analysis, rather than on actual construction of a safe landfill. Third, due to the complexity of the analysis, and the lack of public understanding of risk-based decisions, many commenters were concerned that It would be very difficult to obtain public acceptance of a risk-based design. They felt that the proposed approach would exacerbate an already very difficult aiting process. To address these concerns, commenters suggested a variety of alternative approaches, However, the majority of commenters recommended one of the following two alternatives for the final design criteria. The first major alternative suggested was the categorical approach, which would establish different design requirements for MSWi.Fa in four location categories that would be distinguished based on two factors—the hydrogeology of the location (measured in terms of time of travel to the aquifer) and precipitation. Numerous commenters liked this general approach of setting forth different stational standards for different locations, but all recognized that certain modifications were needed to address deficiencies in the specific scheme proposed. However, the types of modifications suggested varied significantly and no commenter provided a fully developed alternative scheme. [Nevertheless, these commenters believed a somewhat modified categorical approach would be •- flexible, yet provide more certainty and be easier to implement than the proposed risk-based approach. Some commenters, on the other hand, objected to the categorical approach, stating that it was technically and conceptually flawed. These commenters argued that the approach is overly simplified and not technically justified. Of particular goncern to these commenters is the reliance on only two factors—hydrogeology and precipitation—to distinguish location categories, as well as the unjustified cut- off values specified for each of the factors. Others pointed out that it is often very difficult and expensive to ' obtain reliable data needed to calculate these factors. These commenters. suggested that EPA drastically revise the categorical approach or adopt the alternative described below. The second major approach suggested by commenters included two elements— a uniform design standard and some provision allowing other designs based on site-specific conditions. Commenters differed significantly, however, on the stringency of each of these elements. For example, the uniform'designs suggested varied from one identical to that required for hazardous waste disposal facilities under subtitle C of RCRA to one consisting of a single liner of either natural or artificial material with a 1XJ0 -7hydraulic conductivity and a leachate collection system. With regard to site-specific designs, some commenters argued that these should be limited to those that provide protection "equivalent to" the uniform design. However, others envisioned a more flexible approach that allowed site- specific designs that met a clearly specified environmental performance standard. 3. Evaluation of Proposal and Alternatives In reviewing the alternatives suggested by commenters, It was clear that all preferred an approach that would (1) provide certainty and public acceptability, (2) include flexibility. for variation based on site-specific conditions, and (3) be implementable, considering the availability of technical Information and the technical expertise and resources of local and State governments. As a result, EPA considered each of these factors in evaluating the proposed rule and each of the alternatives suggested by commenters. EPA carefully reevaluated the proposed risk-based approach in light of the comments described above. The Agency disagrees with commenters' arguments that EPA would fail to establish minimum national standards for MSWLF's if the proposed approach was adopted. The proposed approach would establish a national framework With substantial State flexibility to address site-specific conditions. EPA continues to believe that sufficient flexibility is essential for effective program implementation across the nation, However, EPA does agree with commenters' concern that it may be difficult to obtain public acceptance of a risk-based design, resulting in increased siting difficulties. Furthermore, EPA recognizes that many States and local governments do not have adequate techsucal expertise and resources to implement the proposed approach. Specifically, most States do not have the resources to establish risk levels for the .large number of compounds that do not have EPA -approved standards, and most local governments and States do not have adequate resources to complete and review the complex analysis necessary to implement the risk-based approach. Therefore, the Agency rejected the proposed risk- based performance standard. EPA then evaluated the'two major . alternatives discussed in the proposed rule and addressed by commenters (53 FR 33355). In examining the first alternative, the categorical apprcacb, EPA carefully reviewed the modifications suggested by those who favored the general approach as well as the data and arguments presented by commenters who criticized the approach. In response to commenters' concerns, EPA looked closely at the technical adequacy of the categorical scheme, particularly the technical basis for the two factors (i.e., hydrogeelegy and precipitation) used to distinguish the location categories. Based on this re-examination, the Agency acknowledges that it has inadequate technical information to support the methodology used to measure the hydrogeologic character of a site [Le., the time of travel equation),. as well as the specific cutoff values specified for the two factors (53 FR 33384). In addition, no commenters presented modifications that would address these technical concerns. Therefore, while EPA believes a categorical approach theoretically could provide both certainty and flexibility, the Agency rejected this alternative for the final rule because of the technical problems inherent in such a scheme. The second major alternative examined by EPA was a uniform design standard in combination with a provision allowing alternative designs based on site-specific conditions. While the stringency of this approach varies depending on the uniform design specified as well as the structure of the .. Federal / Vol. 56, No. 196 / Wednesday, October 9, 1991 / :Rules and Regulations 51059 site-specific design provision, EPA believes this general approach best addresses the concerns raised by . commenters. First, this approach provides more certainty to address public concerns during the sitn; process. Second, it pro,-ldes flexibility by allowing designs based•on consideration sof site-specific factors. Finally, this -approach should•ba the easiest to implement of the various approaches ransideredbecaalse it provides those States and local governments that have limited technical expertise and.resources with an EPA- a, liroved deaign, thereby avoiding the analysis -and modeling that would have been needed to justify an alternative design or to implement a, complex performance standard, such as the proposed Ask -based approach.'For these reasons, #lie Agency selected this - general approach for the ftnal•rule. The specific elements -of this approach are discussed below. 4. ,lt'rnallBuleApproa,ch The firialrule approach selectEdby EPA Includes two ,elements—a provision allowing site-sperific designs in approved States and.a uniform,design standard, •Sperafically; ,today's finalrule provides the tnewNfSWMFs-and dateral expansions.must be nonstritcted with either (1) Ia approved State's, adesign that is approved by the Director of -an approved State °arid meets the performancestandard specified in 258.40, or (2) a •composite Miner and leachate collection system. 'The rationala for each of tliese'elements is discussed below. a. Site -Specific Designs Based -on Performance Standard . The.first element of today's final ,design,criterlaellowws site_speciffc designs in approved ,Sta tes. As indicated above, some .commenters preferied .that these site-specific designs b4Zisedcon an "equivalence" approach, mobile others favored a more flexible approachbased directly on environmeritalperformanw. Underthe"equivalence' apprbach,an owner or operator would have to demonstrate dint a site-specific design would prevent migration -oi'. hazardous constituents into ground water at least as •elfeefively as the uniform design described below. The somewhat more flexible approach would require an owner or -operator to deniGilsirate,that an alternative design would achieve •a clearly specified environmental performancetstandard.. For example, somecommenters suggested that site- specific designs be permitted when the owner ar operator can demonstrate :that such designs will ensure the Maximum Contaminant Levels are.met in ground water. 'The.Agencydecided not to adopt the "equivalence , approaGh'because EPA believes itwould signif'zcaritlylimit,the atuility•of GTimersa.ld operators.to•utilize alternative protective designs. For example, it would likely be difficult for an owner or operator to demonstrate thata.rlay liner of any thickness would prevent migration as effectively,as a composite Iiner', whichr includes•a flexible membrane liner that; by definition, is impermeable. EPA believes that llexibility.to,accciunt for site- specific•conditions is particularly important for MSVVWs because municipal solid vraste-disgiosal•capacity� will be needed across :the country in a wide range sof settings. Therefore, EPA adopted the second approach—environmental pezfnrmanre criteria—as the basis for site specific • designs in approved States. Bpecifically, § 258.40ja)(1) of today's rale Specifies that!these desigris:lnustparUM thattha concentrationslistedin table 1 -will not be exceeded iathemppermost aquiferat the relevant point.dfcompliance specifiediinaccoirdance with'§'25840(d). The list of r Amstitueiits in table 1 includes all.thme-compounds with Maxilniim Contaminant levels. ,EPA. plans to update this. list as rieW MDIs are.promulgated. - - .. ' Section 258.40(d) provides that the relevant Point -of •compliande spedlfied by the Director of.an approved -State shall -be no more than 15o�meters frain the wastemanagement unit boundary on land owned by the o,vner •df the MSWiy.'tn determining the relevant Point bloompliance, the State Director must consider a set.of factors •specified in § 2u8;40(d).'Bgcause the relevant point of compliaMe plays a'key role in ,ground water monitoring and corrective L ction, the discussion -of #jus provision, including)EPA's-responSe to -comments on the proposal, is includedin appendix F. EPA recognizes that the performance standardforsher-specific.designs in approved States addresses fewer constituents (i.e., those with MCLs) than theproposed risk-based standard, which ad&essed,proposed appendix u compounds. The Agency believes this approach is suppor#ed by the comments on the proposal discussed, above. While the proposal addressed a more compxehenslue list -of compounds, commenters pointed -out that it was unimplenientable'because j1) there is insufficient' technical infarmatian, Particularly EPA -approved risk -levels for many of the.apoeha xu constituents, to implement •the proposed approach; j2j States and owners and operatorsdo not have the technical.e Kpertlse.or . resources fto develop risk-based standards for all%appandix 11 compounds; and (3).it may be ditficiift to obtain ;public acceptance zf a risk-based design that is based;anstandards for .apglendix.II compounds that leave ono EPA established Ask.levels. Thus, today's Mid! -standard is'a direct outgrowth -0f EPA'sproposed approach, ,modified to -address the iinplergentation problems raised -by commenters. Because today's design,provisioa'in approved,States establishes clear; EPA- iapproved:concentration limits dor constituents ia;ground-water tLe„ MCLs), EPA believes it responds to ,s veral prohlems rvitli#he risk-based proposaI.:-First,.itEliminates the Problems assaciatedwithrisk calculations -which werexalled for in the Proposal, Such calmilations'wnuldhave to be -done formany compounds for ` which'EPA:has not yet established any standards. Second, it reduces the level Of State zesources deeded for Implemeniadon'by'being limited to those compounds that have.'EPA- approvedlimits.l:inaliy,'because . today"s final design provision is premised on EPA -approved lim!ts,ji.e., MCL's) it should provide -more - assurance to the public'than )the risk- based approach,;OR*&Tequired States with liii itedtechnicalTesources to es tablish TIsk based designs: Although today's final standard is limited to N[CL's, dens backed up'by ground -waster monitoring and corrective action provisions •fhat address a comprehensive •set of compounds comparable to the proposal. Appendix p' contslns the rationale for'this comprehensive.set of constituents for ground-watermonitoring and corrective action, �Specificdliy,•§ 258.56tajof today's Tule requires that whenever znonitorinaresults indicate a statisticaTf sic-nificantlevel of any -appendix 11 constituent exceeding the ground-waterprotectidn standard, the owner or operator must initiate an assessment of corrective action remedies. This backup system ensures that designs provide effective protection of human health and the.environmegt. The Agency acknowledges that imglementation.of this ,final design provision will still require modeling and associated,anaIysis. To address ' . commence ''iconcernsregarding;the availabilh of technical inlorm'Zkon on this subject,.EPA.is developing technical guidance,on modeing-for :inclusion in . the iechnicalguidancefor thisaule (see section VJH of today's preamble).1n addition, to ensure proper,oversightand 51060 Federal Register f Vol. 56, No. 190 / Wednesday, October 9, 1991. / Rules and Regulations m review of these analyses, today's rule requires that site-specific designs based on the performance standard be approved by approved States. Thus, owners and operators of MSWLFs located in unapproved States will not have the opportunity to use site-specific designs, but rather must comply with the uniform composite liner requirement discussed below. EPA believes that these two steps will ensure proper analysis and implementation of today's site-specific design provision. Approved States must consider three factors in determining whether the design meets the performance standard of § 258.40(a)(1). These factors include: (1) The hydrogoologic characteristics of the facility and the surrounding land; (2) the climate of the area; and (3) the volume and physical and chemical characteristics of the leachate. The Agency believes that these factors, which are derived from those proposed for use with the risk-based standard, are relevant and important for evaluating designs because they all influence the nature and extent of releases to ground water. Guidance on consideration of these factors in landfill design will be Included in the technical guidance for today's rule. EPA is concerned that certain owner/ operators of new units or lateral expansions may be forced to use the design standard In § 258,40(a)(2), dlscussed below, in situations where the composite liner specified in that section Is not necessary to protect human health and the environment if their State does not have program approval. In these cases, the performance standard under § 258.40(a)(1) maybe more appropriate a!nce it would potentially avoid an unnecessarily stringent design. Therefore, EPA established a petition process In § 258.40(e). This process allows the owner/operator to use the performance standard in § 258.40(a) 1) if the State determines that the otivr operators design meets that performance standard, the State petitions EPA to review Its determination, and FPA approves the design. EPA will act on these petitions within 30 days of receipt. I b. uniform Design The second element of today's design criteria is a uniform design standard for Iandfill designs in States without approved programs. In selecting a uniform design, EPA's goal was to Identify one that would provide adequate protection in all locations, Including poor locations. In the preamble to the proposal, EPA requested comment on a uniform design approach that would consist of a composite liner and leachate collection system. The suggested composite liner system consisted of an upper flexible membrane liner and a lower soil layer at least three feet thick with a hydraulic conductivity of no more than 1X10 -T cm/sec. The leachate collection system would need to be constructed to maintain less than 30 cm depth of leachate over the Iiner. EPA considered comments on this design in selecting today's final approach. Commenters suggested a variety of uniform designs. These suggestions included (1) double liner systems identical to those required for hazardous waste disposal facilities under subtitle C of RCRA. (2) composite liner system similar to that described above, and (3) a single liner of either natural or artificial material with a hydraulic coadugtivity of no more than 1 X10-' cm/sec. In addition, commenters suggested a'composite liner system for MSWLF9 located in Category IV (poor locations) under the categorical scheme. While EPA recognizes that subtitle C double liner systems would provide added protection, EPA`s Regulatory Impact Analysis (see section 111.13 of today's preamble) indicates that requiring such systems at all new MSWLFs and lateral expansions would impose high costs on communities, and would contribute significantly to causing today's set of final -requirements to be beyond the practicable capability of owners and operators. For a typical MSWLF, EPA estimates that a subtitle C liner system would cost nearly 75 percent more than a composite liner system, Therefore, the Agency rejected the subtitle C design approach for MSWLFs. EPA also rejected the third option suggested (i.e., single liner) because the Agency believes that both a flexible membrane liner (FML) and a compacted soil component are necessary td ensure adequate protection in poor locations. (Of course, in good locations, such alternative designs may meet today's performance criteria described below.) The upper FML component provides a highly impermeable layer to maximize leachate collection and removal, while the lower soil component serves as a back up in the event of FML liner failure. The Agency believes the second option, a composite liner system, encompasses the essential components for a protective uniform design standard for MSWLFs. Today's final rule adopts the system described by EPA, in the preamble to the proposed rule with two modifications. First, today's rule clarifies that the FML must have a minimum thickness o€•30 -mil, or if high density polyethylene (HDPE) is used, a minimum thickness of 60 mil. Based on EPA's experience with these liner materials, these are the minimum thicknesses necessary to ensure adequate liner performance, including being able to withstand the stress of construction and to ensure that adequate seams can be made [see U.S, EPA, RREL, Lining of Waste Containment and Other Impoundment Facilities. EPA/60012-88/052. September -1988). Second, today's rule specifies a minimum lower soil component thickness of two feet rather than three feet, which is required for hazardous waste disposal facilities. The Agency's most recent data indicate: (1) With sound construction practices, a two foot thick soil liner can be.constructed with a hydraulic conductivity of 1x10-7 cm] sec; (2) soil liners less than two feet thick have a high probability of having a hydraulic conductivity greater than 1 X107 cm f sec.; and (3) -for composite liners, an extra foot of thickness (i.e., three foot versus two foot thickness) generally provides little improvement in liner performance, but may be appropriate to add as a "factor of safety in certain cases. (see Note on Thickness of Compacted Soil Liners, Daniel, D.E., April 9, 1990). EPA believes that requiring this. "factor of safety" is appropriate as part of the liner system for hazardous waste disposal facilities, but not for MSWLFs. Iii comparison to hazardous waste disposal facilities. MSWLFs are located n and needed in every regioof the country. In some of these locations, clay materials for a soil liner are unavailable locally and must be shipped in from long distances. In many cases, shipping these materials in is very expensive for the community. While these communities will have the opportunity to use a site- specific design, as described above. increasing the thickness of the soil component of the composite liner would likely make the composite liner option prohibitively expensive for these communities. Even assuming minimal shipping costs, EPA estimates that requiring an additional one root "factor of safety" would increase the cost of a composite liner for a typical MSWLF by nearly 25 percent. Given the unique characteristics of MSWLFs, EPA believes a two foot minimum soil layer provides the best balance between protection of human health and the environment and the practicable capabilities of MSWLF owners and operators. Federal Register 1 Vol. ZC8 No. 196 Wednesday, October 9, 1991 f Rules and Regulations 519BI Appendix F—Supplemental Information for Subpart l -Ground -Water Monitoring and Corrective Action 1. Section 258.50 Applicability a, Suspension of Ground -Water Monitoring Requirements Today's final ground -coater monitoring and corrective action requirements apply to the owners and operators of all new and existing MSWLFs that do not qualify for the small community exemption. However, the Agency recognizes that certain hydrogeologic settings may preclude the migration of hazardous constituents from MSWLFs to ground -water resources. In the preamble to the proposed rule, the Agency stated that requiring ground -water monitoring in these settings would place an additional financial burden on owners and operators and would provide little or no,additional protection to human health and the environment. Therefore, the proposed rule allowed suspension of ground -water monituring requirements in § § 258.51 through 258.55 for a MSWLF unit upon demonstration by the owner or operator that there is no potential for migration of hazardous constituents from the landfiduriit to the uppermost aquifer during the active life, closure, or post -closure. periods. The proposed rule required that the demonstration be certified by a qualified geologist or geotechnical engineer., The Agency received a few comments regarding the practicality of the waiver. Commenters noted that it would be virtually impossible and/ar.veiy expensive to make the demonstration of no potential for migration. Several commenters also questioned the meaning of the words "no potential for migration" in § 258.50(b). Many felt that a change in the wording of the rule is necessary because, if strictly interpreted, it is impossible to demonstrate "no potential" for migration. The Agency agrees with the commenters that it will be difficult for many facilities to meet the "no potential for migration" standard in the regulations though it does not agree that it is impossible: The Agency reminds commenters that the "no riligrati0n ' waiver has been a component of the subtitle C groundwater monitoring program for many years. The.Agency stresses that the suspension of monitoring requirements is intended only for those MSWLFs that are located in hydrogeologic settings in which hazardous constituents will not ingrate to ground water during the active life of the unit, closure, and past -closure periods. As stated in the proposal, the Agency believes that these cases will be rare. The Agency also understands that the demonstration of no potential for migration may be difficult and costly because of the high degree of confidence necessary in the demonstration before an exemption will be allowed, EPA encourages MSWLf; owners and operators to carefully consider their chances to obtain a suspension before attempting -such a demonstration. Other commenters suggested that the Agency consider hiniting the stringency and term of the suspension so that an 'N4SWLF owner or operator would have to make periodic dernonstrations to retain the suspension. The Agency decided against limiting the term of the monitoring suspension by requiring periodic demonstrations every five or ten years. EPA believes that periodic demonstrations are not necessary because the demonstration required under this program must be so rigorous that no potential for migration is ensured for the active life plus the closure,, and past -closure periods. Additionally, the Agency believes that . 'the costs associated with continual re- application for the suspension would outweigh the benefits associated with it. Several commenters requested that EPA establish additional conditions under which ground -water monitoring would be unnecessary or under which a suspension of ground -water monitoring requirements is warranted. These commenters suggested the following additional conditions be included; (1) . Remate areas, including areas where there is great distance to (drinking) water wells, (2) extremely dry areas with little rainfall and great depths to ground water; (3) areas.where ground water is not potable, is unusable, is of low value, oris classified as class 1U ground water; (4) areas underlain by unfractured bedrock or by thick sections of impermeable or slightly permeable sails or geologic materials; (5) areas where travel time calculations indicate Iittle or no threat to human health or the environment; and (6) aquifers lacking " reasonable quantity or recharge characteristics rendering any potential use unlikely. The Agency considered these comments and believes that owners and operators of MSWLFs with some of the specified conditions, such as extremely dry areas or slow time of travel areas, might be able to demonstrate no potential for migration under § 258.50(5). However, EPA does not believe that the current ground water quality or potential. future use of water is an appropriate factor for consideration in granting`exeinptions from ground water monitoring. EPA believes it is important to monitor for contamination at the relevant point of compliance regardless of the quality or anticipated future use of the ground water. Such considerations are more appropriately factored into deteirmining the appropriate frequencyof monitoring anti the proper levels and schedule for remedy implementation for ground water cleanup or whether clean up requirements should be waived by an approved State (found in § 258.57). Furthermore, HSWArequires EPA to include in the revisions to section 4010 guidelines for ground -water monitoring, as necessary, to detect contamination, Therefore, today's final rule does not provide for walvers from ground -water monitoring requirements except where the owner or operator in an approved State can demonstrate no potential for migration of haaardo6s constituents to the uppermost aquifer during the active life of the unit, closure, or post -closure periods. After consideration of the above comments, the Agency decided to promulgate § 25$,50(b), as proposed, with four modifications, First, the suspension of ground -water monitoring requirements in § § 258.51 through 258.55 is available, only for owners and operators of landfills located in approved States. Owners and operators of MSIwVLFs not located in approved - States will not be eligible for this waiver and will be required to. comply with all ground -water monitoring requirements. The Agency has limited the availability of the waiver to.approved States because the Agency recognizes the need for the State to review a no -migration demonstration prior to granting a waiver from ground -water monitoring. Second, hi response to comments discussed below, the final rule requires demonstration's of no,potential for migration to be supported by both site- specific data and predictions that maximize gontaminant migration. The proposed rule required that the demonstration of no pgtential for migration be based on site-specific hydrogeulogic information or, if detailed data were unavailable, the owner or operator could make the demonstration based solely on predictions using assumptions that maximize the rate of hazardous cons tituentniigration. Two comraenters`objected to the use of predzc.dor s in establishing the demonstration of no potential for migration, Both commenters remarked that the suspension should no t be allowed i€.site-specific data was not available -'One commenter added that site-specific data must be used in a 51062 Federal Register / Vol. 58, No. 196 / 'Wednesday, October 9, 1991 °/ Rules and Reguiations water balance or recharge model to determine the potential for migration of hazardous constituents -The Agency agrees with the commenters and is requiring In today's final rule that the demonstration of no potentialfor migration be based an actual field data collected et the site, Field testing is necessary to establish the site's hydrogeological characteristics and should Include an evaluation of unsaturated and saturated zone characteristics to ascertain the flow rate and pathway by which contaminants will migrate to ground water. The Agency also agrees with the commenter that modeling is useful for assessing and verifying the potential for migration of hazardous constituents. Furthermore, the- Agency believes that Predictions (Le„ models) should be based on actual field collected data to adequately predict potential ground- water contamination. Therefore, today's final rule requires the owner or operator IG use both field collected data and predictions thatmaxlnvze contaminant migration for demonstrating no potential for migration. Another commenter remarked that the term "adequate margin of safety" in the Proposed rule Is too subjective. Because the final rule requires predictions that maximize contaminant migration in all demonstrations, the term "adequate margin of safety" is unnecessary. The Agency believes that using predictions or models that maximize contaminant migrallon and consider impacts on human health and the environment will, In Itself, provide an adequate margin of safety in protecting human health and the environment Therefore, the Agency has deleted this phrase from today's final rule. Third, today's final rule requires no potential foc migration demonstrations to be certified by a "qualified ground- water scleatist and approved by the Airoctor of an approved State." The proposed rule required the demonstration to be certified by a "qualified geologist or geotechnical engineer." Comments received and the Agency's rational for the final provision aro discussed Iater in the preamble; In summary, today's final rule allows an approved State to suspend ground- water monitoring regtdrements (I g 258.51 through 258.55) if the owner or operator can demonstrate that there. Is no potential, for migration. of hazardous constituents from that unit to the uppermost aquifer during the active life of the unit including tha closure and the post -closure pedods_This demonstraQon must be certified by a qualified ground watararlenfiet and he based on site-specific, field collected measurements, sampling, and analysis of physical, chemical, and biclogical processes affecting contaminant fate and transport -The demonstration also must include contaminant fate and transport predictions that maximize contaminant migration and consider impacts on human, health and the environment Procedures for conducting these evaluations can he found in the OSWER Ground -Water Monitoring Guidance Document for Owners and Operators of Tnterim Status Facilities (1983), Compliance Schedule As a result of shortages in qualified technical personnel and licensed drilling companies, the Agency proposed to gradually phase in the requirements to ease the burden of installing ground- water mgnitoring systems at all new and existing MSW€Xs. rh the proposed rule, the Agency allowed States to set a compliance schedule for instaIl`ing ground -water monitoring systems at existing facilities and provided a "fall- back" schedule for States choosing not to set a schedule. The fall -back schedule was based on distance to the nearest drinking water intake. For States choosing to set a schedule, the Agency set requirements for the percentage of units that had to be in compliance. These requirements were-- (1) Within two years -25 percent of the units had to be in compliance; (2) within three years -50 percent of the units: had to be in compliance; (31 within flour years --75 percent of the units had to be in compliance; and (4) all traits had to be in compliance within five years.'States were to set schedules to meet these requirements based on the potential risks posed by facilities after. evaluating the proximity of human and environment receptors, design of the unit, age of the unit, and resource value of the underlying aquifer. The Agency received several comments In favor of the five year phase In. One commenter in particular, noted that In addition to the'technical demands placed on hydrogeologists and drilling companies by the subtitle T,3 program, other regulatory programs (CERCLA, State clean-up programs, the Underground Storage Tank,program, and RCRA's subtitle G monitoring and corrective action program,) also will significantly impact the availability of competent consultants. This same commenter requested that the phase in period be extended to tea years. Another commenter,. thought understanding of the constraints imposed by the avamiability.of "V etent hydrogeologfs ta,arkd drilling 'companies, was opposed to the leiig,th of the Agency's schedule, but did not suggest an alternative. The Agency also received a feint comments opposing the phase in period. These commen€ers believe that a phase in period will allow facilities to delay installation of ground- water monitoring systems without justification. In response to these commenters, EPA carefully reevaluated the five year phase -]n period for ground -water monitoring, to determine if it was appropriate and necessary. In EPA's Report'to Congress on solid waste disposal (1980.), it was reported that approximately 19 percent of the existing landfills mnoni.tor ground water. This means that approximately 4,800 of the nearly 6000 existing Iandfills will need to install ground -water monitoring systems for the first time. The Agency recognizes that installing new groundwater monitoring systems will take time, especially since the pool of available, qualified ground -water scientists is limited Assessing. site- specific hydrogeolo,gic eondidons and preparing a lsydrogeologicaI report with findings and recommendations must be completed before well construction can begin. ; The Agency estimated that there are currently .271 Arms "certified" [National Water Well Association certification) to install ground -water monitoring wells. If each of these 271 drilling firms can install monitoring wells at 1$ of 4x00 MSWLFs and 4 for example, four. monitoring wells are installed at each. MSWLF (however, many more may be needed), each of the drilling contractors will fnstaR 72 wells. Again, EPA realizes that drilling firms vary widely in size, in their ability to accept additional work, and in their capacity and desire to grow. EPA also realizes that driihing firms and MSWLFa are.not evenly .distributed, . across geographical areas. However, in estimating the amount of time it would take for the 271 drilling firms to install the minimum. number of monitoring wells at all 4800 facilities, EPA decided that an average of 72 wells per drilling 1i was a reasonable estimate. EPA estimated the1ime it would take for one firm to Install 72 monitoring wells for each; of three.different size drilling firms. EPA assumed, for each firm size. that each dnUing firm currently -has the capacity to Install additional monitoring, wells above and beyond its current demand. EPA then . assumed tha:t;la the first year -after publication -of today's final Mule, all of the drilling firms' additional, capacity is dedicated to installing monitoring_well& :for the-MStiWLF program -EPA then . assumed thatiri.each of the_folldwjng -Federal Register f Vol. 56, No. 196 1 Wednesday, October 9, 1991 f Rules and Regulations 51863 years, the total number of wells that a drilling firm can install increases by ten percent over current'capacity. EPA also assumed that after the first year, one half of this additional capacity will be used to install wells at MSWLFs. Given these assumptions, EPA then estimated the time needed for each of the three different sized firms to install 72 monitoring wells..A firm that is currently installing 2400 monitoring wells a year and has additional capacity to install 20 percent more wells,'will require less than one year to install 72 wells; a firm that is currently installing 35 monitoring wells a year, with additional rapacity to install 80 percent more wells, will also require less than a year to install 72 wells, however, a firm that is installing 150 monitoring wells a year and has no additional capacity will require over four years to install 72 monitoring wells. In addition to this varying capacity of drilling firms, it is alsa the Agency's' experience that it may take more than six months fdr a facility owner or operator to retain a qualified hydrogeologist and drilling firm:, implement initial site characterization activities, draft plans and implement final drilling programs, perform site characterization activities, and prepare sampling and analysis plans. Based on the Agency's evaluation of each of the considerations presented above, the Agency concludes that approximately five years will be necessary for the installation of ground -water monitoring systems at all landfills. Commenters requested both longer and shorter compliance schedules and noted that the proposal was unclear as to whether the compliance schedule started on the date of publication or the, effective date. This would yield either a five year or,a six and half year time for compliance. The above analysis indicates that the shorter schedule (Le., . a five year compliance schedule ' beginning at the date of publication) is feasible. Therefore, the Agency has clarified in today's rule that the five year compliahce schedule for installing ground -water monitoring systems begins on the date of publication (i.e., today's date). As part of the self -implementing approach in today's final rule, the Agency is promulgating a set compliance schedule for the phase-in. while still allowing approved State§ to implement an alternative scheduler Within five years of the publication date of today's final rule, -all exiktingunits must be in compliance with ground- water monitoring requiremerits'New units must comply with the ground= water monitoring requirements before accepting waste because the need for ground -water monitoring systems can be anticipated in the planning process. Owners and operators of existing units, and lateral expansions of existing units, are required to comply with the ground- water round- °. water monitoring requirements according to the following schedule, (1) Lass than one mile from a drinking water intake=within three years; (2) greater than one mile but less than two miles --within four years; (3) greater than two miles—within five year's`. While this method does not assess the risk'of individual landfills, it is.objective and it will be easy for owners and operators to determine. This schedule was originally proposed as a "fall -back" schedule if a State chose not to set e compliance schedule. In general, lateral expansions must meet the requirements of today's final rule (e.g., ground4atermonitoring, liner, and leachate collection system) prior to acceptance of waste into the unit. The Agency is allowing ground- water monitoring requirements to be phased -in at existing units because of the lack of qualified drilling firms and hydrageologists. For this same reason, the Agency believes ground -water monitoring at lateral expansions must also be phased in. Therefore, the Agency has decided to also phase -int the ground- water monitoring requirements for lateral expansions of existing units on the same schedule as the existing unit. Furthermore, the Agency believes that Congress has -expressed a desire to avert serious disruptions of the solid waste disposal industry. The Agency believes that disruptions in solid waste. disposal could occur if existing Mills cannot laterally expand until ground- water monitoring systems are in place, limiting the much needed capacity created by lateral expansions. The Agency also recognizes that it is more practical to design one system encompassing both the existing unit and the lateral expansion. This approach will allow the owner or operator to utilize all of the information generated, during site characterization and design a ground -water monlioring system in view of all of the conditions that exist at the facility. As discussed earlier in the preamble, the Agency ha's chosen 24 months from today as the effective date for most of the standards promulgated. However, in' one departure from the 24 month effective date, EPA is promulgating a phase-in of the ground -water monitoring requirements over a five-year time . period beginning on the date of rule ` publication. The statutory language authorizing the promulgation of revised criteria for subtitle D facilities receiving household hazardous and small quantity generator wastes does not specify an effective date. Thus, the Agency believes that is has broad discretion in determining the most appropriate effective date for different provisions of the revised criteria. -Congress, in the legislative history to subtitle D, recognized that many facilities subject to the revised criteria may have difficulty meeting all requirements by a particular compliance. date due to the "practicable capabilities" of facilities, which EPA has interpreted to refer to cost and technical considerations. Thus the legislative history explicitly suggests that EFA phase-in the revised criteria over time. During floor debate, Senator Randolph stated, "Requirements imposad on facilities; may vary from those for subtitle C facilities, however, and still meet this standard (protection of human health and the environment). They may be phased in over time, as the Adminisfrator deems appropriate, to take account of the,practicable - capability of the facilities covered." 13o Cong. Rec. S 13814 (October 5,1984). While the Agency also recognizes, that the legislative history indicates that Congress did not favor the phase-in of the ground -water monitoring re.quirezn eats, it does not view this as a bar to such a phase-in. First, this indication is limited to the legislative history. The legislative,history on this issue also is found in remarks by Senator Randolph, where he stated, "The Administrator could phase in new requirements other than ground -water monitoring and corrective action over time. 'Id The statutory language - however, however, does not contain any language that would prevent the Agency from phasing in the ground -water monitoring requirements. Second, this statement in the legislative history must be read in the context of Congress' general approval of a phase-in of the revised criteria where the "practicable . capabilities" of the owners and operators is at issue. Finally, the facts motivating the Agency to phase-in the ground -water monitoring requirements . mustbe considered. As explained earlier, considering the substantial number of MSWLFs that need to have wells installed and the estimated number of firms capable in installing . ground -water wells, FPA believes that it is physically.irripossible for all wells to be installed at all MSWLFs by the effective date of today's rule. As discussed earlier, the propased rule provided targets and evaluation factors for States choosing to set - compliance schedules. One commenter 51064 Federal Register f Vol. 56, No. 196 j Wednesday, October 9, 1992 f Rules and Regulations requested that the Agency provide more flexibility to States in setting a compliance schedule. Another commenter noted that the five year schedule does not provide States any support to achieving compliance at MSWLFs that do not meet current State ground -water standards. The commenter requested that the rule direct a more aggressive compliance schedule and rifer to more stringent State rules where they apply. The Agency also received comments on the methodology to be used by States in setting facility compliance schedules for implementing monitoring programs. One commenter remarked that States should aat priorities by relying upon the categorical location criteria (precipitation and time of travel) as well as the factors for Identifying risk (e.g., characteristics of the leachate. designations of local water use, documented adverse Impacts, and use of containment and mitigation technology). The commenter also - suggested that special emphasis be placed on the DRASTIC index score, a standardized system for evaluating ground -water pollution potential using hydrogeologic settings. Similaxly, another commenter suggested that schedules he based on a risk assessment of facilities focusing on an analysis of key pathways to sensitive receptors and activities (i.e., drinking water sources; exposed populations, a ensitive biologic communities; and past, current, and future use of the site and adjacent property). In response to comments requesting more flexibility for States, today's final rule allows approved States to establish an alternative compliance schedule for phasing in the ground -water monitoring requirements at existing units and lateral expansions of existingunfts. These alternative schedules must ensure that 50 percent of all existing units are in compliance within three years and all existing units are In compliance within rive years. In setting an alternative compliance schedule approved States must consider the potential risks posed by each facility.to human health and the environment based on the factors specified in 1258.50(d). This approach for approved States is consistent with the proposal except that the Agency has deleted the interim requirements of 25 percent compliance within two years and 75 percent compliance within four years. These interim milestones were- dropped eredropped In response to commenters request for additional State flexibility on this issuer Thougli these two interim requirementahave not been included in today's final rule, the Agency does not believe thatany adverseimpacts ter human health and the environment will result The final rule also allows approved States to set alternative recordkeeping locations and alternative schedules for recardkeeping and notification requirements In considering the request for more aggressive compliance schedules, the Agency notes that States are not. precluded by this section from requiring installation of ground -water monitoring systems ora a faster schedule. The Agency considered the commenter's request to. use DRASTIC scores, but believes that States may not have all the information readily available to score facilities. DRASTIGis a method used for systematically evaluating and numerically scoring the groundwater pollution potential of any hydrogeologlc setting in the United States. Scores are based on ratings of the following factors: Depth to luster, net recharge, aquifer media, sail media, topography, impact of vadose zone media, and hydraulic conductivity. The- purpose hepurpose of the factors to assess relative risk is to allow for,quicker installation of monitoring systems at those facilities that pose the greatest risks to human health and the"environment: The Agency does not believe that a full hydrogeologtc assessment is necessary to rank facilities, -and therefore, has not adopted the use of DRASTIC into today's final rule. The Agency considered the other risk factors suggested by commenters and believes that the majority of the specific factors suggested by commenters fall Into the broader categories proposed by the Agency. For example, designations of locarwater use and drinking water sources could be considered part of the resource value of the aquifer. Similarly, exposed population and sensitive biologic communities fall under the first factor, proximity of human and environmental receptors. The Agarncy does not believe that requiring Information on the additional suggested factors will enable approved Statesto more accurately assess relative risks posed by faciMles- For this reason, the Agency believes that the factors provided in today's final rule, (§ 258.50(d)), are sufficient for assessing risks pposed by facilities. These factors include: (1) proximity of human and environmental receptors; (2) design, of the unit; (3) age of the unit; (4] the size of the unit: and (a) resource value of the underlying aquifer including (i) current and future uses; (Ii] proximity and withdrawal rate of users; and (lit) ground -water -quality and quantity. This list is the same as .that originally proposed except for the addition of two . factors: (1) Waste types and quantities, including sewage sludge and (2) unit size_ Waste type and quantity, including sewage sludge, was added as an additional factorbecause commenters suggested that waste characteristics may be an important factor in assessing the patential risk of afacility. Size was added as a factor for consideration in today's final rule because of the comments. received requesting relief for small communities. As discussed earlier in the preamble, the Agency has allowed approved States the discretion'to exempt owners and operators of small landfills from the ground water monitoring and. corrective action requirenierits as long as certain conditions are met. However, the Agency -understands that many small communities not meeting the criteria defining small communities in today's final rule may need more time to locate expertise and acquire funding for installation of ground -water monitoring systems. Therefore, the Agency -is allowing approved States to consider the impacts to small communities during the phase in period Approved. States may establish lower priorities for small communities by applying the criteria set forth in §§ 25ff.M.(d)(1), (d)(4), and (d)(5)(1i]. These are the risk factors considering the proximity of human and environmental receptors, the size of the unit, and the,proximity and withdrawal rate of users. Approved States will always have the option, however, to immediately address those MSWLFs with environmental problems that are serving small communities. C. professional Certification The proposed rule required that the owner or operator obtain cartiffcation from an independent professional.in at least two instances: The demonstration of no potential for migratiod (by a qualified geologist or geotechnical engineer) and certification of remedy completion( Can independent professional skilledla.the appropriate technical discipline). Because the Agency is providing for self - implementation of many portions of today's final rule, the Agency believes it is necessary to have an independent party review•, and certify certain other programs or demonstrations required by today's final rule. As one commenter noted, few owners and operators of MSWIFs haver the technical capability to comply with thepraposed.ground- water monitoring and cortective action requirements without the support of professional-hydrogeol4c consultants Federal Register f Vol. 50, No. 196 f Wednesday, October 9, 1991 j Rules and Regulations 51065 Therefore, five provisions of today's final rule require certification by an independent, qualified ground -water scientist: (1) No potential for migration demonstration (§ 258.50(b)]; (2) number, spacing, and depths of monitoring systems (§ 258.51(d]]; (3) determination that contamination was caused by another source or that statistically significant increase resulted from an error in sampling, analysis, or evaluation (§§ 258.54(c)(3) and 25a.55(h)(2)); (4) determination that compliance with a remedy requirement is not technicallypracticable (§ 258.58(c)(1)); and (5) completion of remedy (§ 258.58(f)), , EPA recognizes that approved States may have hydrogeologists fully capable of reviewing and approving the -ground - Water monitoring and corrective action demonstrations or programs described above. Therefore, today's rule allows the owner.or operator to obtain the approval of the'Directar of an approved State in lieu of the certification of an independent, qualified ground -water, scientist., -One commenter suggested that States take the responsibility for establishing the criteria for licensing hydrogeologists because of the reliance of MSWLF owners and operators on the advice of consultants and hydrogeclogists in, Implementing the regulations. The commenter stated that the variability of the opinions and approaches among different professionals would be a barrier to implementation. A second commenter suggested that there should be minimum professional regiurements. The Agency agrees that those professionals certifying the requirements of today's final rale should meet certain qualifications. The Agency has defined. a "qualified ground -water scientist" to be a scientist or engineer who has received a baccalaureate or post -graduate degree in the natural sciences or engineering and has sufficient training and experience in ground -water hydrology and related fields as may be demonstrated by State registration, professional certification, or completion of accredited university programs that enable that individual to make sound professional judgments regarding ground -water monitoring, contaminant fate and transport, and corrective action. This requirement is included at § 258.50(f). The Agency believes that specialized coursework and training should include, at a minimum, physical geology, ground- water hydrology or hydrogeology, and environmental chemistry (e.g., soil chemistry or low-temperature geeghemistry). Some national organizations, such as the American Institute of Hydrology and the rational Water Well Association, currently certify or register ground -water professionals. States may of course establish more stringent requirements far thew professionals including mandatory licensing or certification. _ 2. Sections 258.51-;58 Overview of Gro an d-Wa ter' Moni torino . an d Corrective Action Requirements The Agency received namerous comments on the ground -water', monitoring and corrective action requirements presented in the proposed rule. In general, most commenters ' requested that the rule be made simpler, less costly, and provide States with more flexibility, In responding to the commenters, the Agencyhas made a significant number of changes from the .proposed rule. Amo{'ig these changes are the elimination of the trigger level and a general reorganization and streamlining of the ground -water monitoring and corrective action requirements. Sect! on -VU of today's preaiuble provide's a'summary of today's final rule, including the ground -water monitoring and corrective action "provisions. As indicated in this summary, EPAhas reorganized the ground -water monitoring and corrective action requirements into four major groupings: Establish Program, Detection Monitoring, Assessment Monitoring, and Corrective Action. The following more fully discusses each of these sections, Including specific comments received, and the fationale for the final approach. Es tablish Program - -,The following sections discuss the requirements for ground=water monitoring systems (§ 258.5-1) and the procedures'for sampling and analysis that must be used by owners and operators (§ 258.53). As discussed later in the preamble, § 258.52, which pertained to the establishment of trigger levels for the appendix II constituents, was deleted. 3. Section 258:51 Ground -Water l,Ronitoring Systems Section 258.51 of the proposed rule . specified requirements pertaining to appropriate methods for designing and installing ground -water monitoring systems. Recognizing the similar intent of ground -water monitoring under subtitle C and subtitle D. the Agency proposed performance standards for., ground -water monitoring system design that reflected those specified for , . hazardous waste disposal facilities in 40 CFR part 264. The Agency proposed these requirements to ensure that consistent, reliable ground -water monitoring data are collected at all MSWLFs. The proposed rule required that monitoring wells be placed at, the closest practical distance from the waste management unit boundary or the alternative boundary designated by the State under § 258.40. The proposed rule also allowed the State to designate ano then appropriate location far down - gradient wells where subsurface conditions cause hazardous constituents to migrate past the boundary before descending into the uppermost aquifer. The system had to consist of a sufficient number of wells at appropriate locations and depths to yield samples that represent background grbund-water quality and the quality of ground water passing the unit or alternative boundary. Individual wells. had to be constructed to prevent contamination of ground water and be operated and'inaintained so as to perform to design specifications throughout the life of the monitoring program. Wells had to be cased in a manner maintaining the integrity of the monitoring well bore hole and this casing had to be screened andpacked with gravel or sand where necessary, to enable collection of ground -water samples. The annular space above the sampling depth had to be sealed to prevent contamination of samples and the groundwater. The State could allow a multi -unit ground -water monitoring system at.facilitfes that have more than one landfill unit provided that the multi- unit ground -water "monitoring system would be as protective of human health and the environment as individual monitoring systems for each unit. Because hydrogeologic conditions vary widely from one site to another, the proposal�did not establish requirements specifying the exact number, location, and depth of monitoring wells needed to adequately monitor ground water in the aquifer. A few commenters supported this approach, while another commenter argued that EPA should specify a minimum number of wells. The commenter, however; did not suggest the necessary minimum number of wells. The commenter was concerned that the proposed rule might encourage the installation of an excessive or inappropriately large number of wells. . EFA disagrees that wording of today's final rule directs owners and. operators to install.an excessive or inappropriately large number of wells. The Agency still believes it is Important to provide owners and operators ' flexibility in determining the appropriate number of wells to meet the performance standard, and therefore SIC66 Federal Register f Vol. 56, No. 196 f Wednesday, October 9, 1991 / Rules and Regulations has retained the proposed approach in today's final rule. The proposal included a provision that the number, spacing, and depth of monitoring systems be based on site- specific technical information including a thorough characterization of: (1) Aquifer thickness, ground -water flow rate, and ground -water flow direction; and (2) the saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, including, but not limited to: thicknesses, stratigraphy, lithology, hydraulic conductivities, and porosities. All commenters generally supported this provision. although a few suggested certain improvements. One commenter believed that further improvements could be made in the site characterization process and that the ground -water provisions needed to be far more explicit than proposed. Specifically the cammenterbelieved thalproposed § 258.51(e) should. require that the following specific characterization requirements be performed prior to final ground -water monitoring well installation: (1) Installation of soilfrmk borings; (2) determination of ground -water flow paths and rates (including ground -water level measurements, vertical flow components, seasonal and temporal variation In ground -wafer flow, and hydraulic conductivities); (3) identification of the uppermost aquifer, especially its lower boundary and any hydraulic interconnection; and (4) the use of confirmatory analyses. Another commenter believed that § 258,51(e) should be clarified to preclude multi-level detection systems. The commenterbelieved that aquifer thickness, flow rate, flow direction, and the characteristics of the material overlying the aquifer were Important factors in developing ground -water monitoring systems. The commenter believed that for the purposes of detection monitoring, a flow path analysis could define a single location and single elevation or depth of well screen which would meet the RCRA criteria for "immediate" detection of contamination from a facility. In response to the first suggestion, the Agency agrees that site hydrogeology must be thoroughly characterized and the lower boundary of the uppermost aquifer be defined. Such information will enable the MSWLF owner or operator to identify potential pathways of contaminant migration and determine whether the complete vertical extent of the uppermost aquifer, including hydraulically interconnected zones of saturation, Is being monitored. (See the technical guidance for this rule that is discussed in section VI of this preamble.) Therefore, the Agency expanded the factors for consideration in determining the number, spacing, and depth of monitoring wells to include requirements to (1) thoroughly characterize ground -water flow direction, including seasonal and temporal ground -water flow, and to (2) thoroughly characterize not only the saturated and unsaturated geologic and fill materials overlying the uppermost aquifer, but those that comprise the uppermost aquifer and the confining unit which defines the lower boundary of the uppermost aquifer as well. In response to the comments regarding multi-level detection systems, the Agency believes that the use of these systems is often necessary and desirable to adequately detect potential ground -water contamination. Ground- water contamination may not be detected by wells screened at a single elevation under certain circumstances Including landfills where: (1) Both sinking and floating contaminants could potentially be detected; (2) multiple, interconnected aquifers exist; (3) aquifers are variable in lithology, or contain discontinuous structures: or (4) discrete zones of fracture exist. The Agency would like to emphasize that all components of any ground -water monitoring program, from site characterization, well location and Installation, to sample analysis and data evaluation, must follow technically sound procedures to achieve high data qualit objectives and, consequently, reliable and accurate results. Some'EPA publications that address data quality objectives for ground -water monitoring include: RCRA Ground -Water Monitoring. Technical Enforcement Guidance Document (September, 1986), Test Methods for Evaluating Solid Waste (SW -846) (3rd Edition, November, 1985), RCRA Facility Investigation Guidance (May, 1989), and Statistical,Analysis of Ground -Water Monitoring Data at RCRA Facilities (April, 1989). The rule as originally proposed required substantial State interaction in designing and approving the ground- water monitoring system. However, because today's final rule is self - implementing, the Agency has instead required certification of monitoring systems to ensure that such systems have been adequately designed and installed. Therefore, § 258.51(d)(2) of today's final rule requires that the ground -water monitoring system be certified by a qualified ground -water scientist as defined in § 258.50(f). This certification must be placed in the facility's operating record and the State director must be notified within 14 days, In addition to those comments - discussed above, the Agency received comments concerning the uppermost . aquifer, determination of background ground -water quality, multi -unit ground- water monitoring systems, and the alternative boundary. These comments are discussed individually below. a. Uppermost Aquifer The Agency received.a number of continents specifically addressing the Agency's use of the term "uppermost aquifer." The commenters' opinions regarding monitoring of the uppermost aquifer varied greatly. A few commenters expressed confusion with the definition of uppermost aquifer since it was not explicitly stated in the rule. A number of commenters objected to•the Agency's emphasis on monitoring solely the uppermost aquifer. Some of these commenters asserted that if zones (both saturated and unsaturated) above the uppermost aquifer are contaminated, then impacts to the uppermost aquifer are inevitable. Accordingly, these commenters argued that requiring monitoring of any ground -water, instead of solely the uppermost aquifer, would provide for the earliest detection of contamination. Other commenters believed that the Agency should require monitoring of aquifers below the uppermost aquifer because ground- water contamination may not be detected in the uppermost aquifer before migrating to a lower most or because the uppermost aquifer may be hydraulically connected to lower aquifers. In contrast to the above opinions, several commenters were concerned that the rule may require monitoring of saturated or unsaturated zones (a.g., aquitard) that may not satisfy the definition of "aquifer." In their opinion, the ground -water monitoring program should focus on monitoring Drily aquifers that may provide drinking water or other beneficial uses. The Agency agrees with the commenters concerns regarding the need for a definition of "uppermost aquifer." In response to these concerns, the Agency is adopting the definition of uppermost aquifer in § 260.10 for today's final rule at § 258.2. The proposed rule defined an aquifer as: A geological formation, group of formations, or portion of a formation capable of yielding significant quantities of ground water to wells or springs which is consistent with the definition of aquifer given in § 260.10. The Agency's position Federal Register ,i Vol. 5s, No. 138 / Wednesday,. October 9, 1991 / Rules and Regulations 51067 has always been that the definition of uppermost aquifer should address situations in which the uppermost aquifer is interconnected w;th lower aquifers, and therefore, the term "uppermost aquifer" is defined in § 260.10 and in today's final rule as: the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer, within the facility's property boundary. If lower zones of saturation are.hydraullcally connected to the -uppermost aquifer, they 6o€lectively comprise the uppermost aquifer. Consequently, a number of facilities will be required to monitor lower aquifers that are. hydraulically connected to the aquifer nearest the natural ground surface. The Agency currently is evaluating the appropriate scope of ground -water monitoring requirements at subtitle C facilities. On July 26, 1988; the Agency proposed to amend 40 GFR part'284, subpart F to give the Regional Administrator explicit authoxi,ly, to require monitoring in any xafes`of saturation including saturated zones' that are not part of the uppermost aquifer (such as perched or intermittent water fables), as well as monitoring in' unsaturated zones, for de4ffiifnirig early migration of contaminants {53 FR 28160). The Agency currently is 4_aIuating comments that were received on that proposal and is preparing a final rule. - After the final rule is ptiblishea, the Agency -also willconsider :tlke appropriateness of proposing comparable changes to monitoring requirements in J258.51 for muidcipal solid waste IaniMs. Today's final rule does not preclude States, however, from requiring monitoring in . the unsaturated zone'or in saturated areas "Jid' ition to the uppermost aquifer. g b; Determination of Backe ouita Ground - Water Quality In the proposed rule. FPA allowed States to determine alternate ' background ground -water quality on a site-specific basis if true background ground -water quality caul not be detected on site (§ 258.53 )1. Ve alternate background gro -water quality was to be based os' monitoring data from the uppermost aquife- that were available to the State. In the preamble to the proposed rule, the Agency elaborated that background ground -water quality shouldbe based on actual monitoring data Sum the aquifer of concern. ;f• A number of commenters staled that $ 258.53(g) of the proposed rule-, hidh allowed the State to determine �ternate background water quality Based°I . wells in similar hydrogeologic areas, is inadequate. They contende d. that there are often no similar hydrogeologic areas that provide representative background water quality and that adjoining areas may be unrepresentative due to other activities in the area (e.g., irrigation and fertilization practices). Further; they contended that this provision does not provide any criteria, geological or hydrogeological, by which States can determine whether two areas are hydrogeologically similar. They believe such criteria are necessary since many factors, including aquifer lithology, will directly affect groundwater geochemistry. ' Based on consideration of these comments, the Agency has"deleted. proposed § 258.53(g), from the final rule. The Agency initially proposed to not sat the criteria to determine alternate background ground -water quality to . provide States with maximum flexibility. llowever,-the Agency agrees with commenters that the proposed § 258.53(g) was vague and believes that proposed § 258.53(#) (§ 258.51(a) in today's rule) provides owners and operators with the needed flexibility to determine background ground -water quality. Proposed § 258.53(f) allowed the owner or operator to establish ground- water quality at existing units based on sampling of wells that are not upgradient from the was management area if: (1) Hydrogeologic conditions do n6t allow the owner or operator to determine what viells are upgradient; and (i) sampling at other wells will provide an indication of background ground -water quality that is as representative or more representative than that provided by upgradient. The Agency did not receive comments Opposing proposed § 258.53(f) and has retained this provision in today's final rule (§ 258.51(a)(1) of today's final rule). This provision may be used when hydroneologic conditions do not allow the owner or operator to determine which wells are hydraulically upgradient and when sampling at other wells will provide an indication of background ground -water quality that is equally or more representative than that provided by upgradient wells, Examples of such situations, as discussed in the background document for the proposed rule, include: (1) Waste management areas above ground -water mounds; (2) waste management areas located above aquifers in which ground -water flow directions change seasonally; (3) waste management areas located close to a property boundary that is in the upgradient directionf (4) waste management facilities containing significant amounts of immiscible contaminants with densities greater than or less than water; (5) waste management facilities located inareas where nearby surface water can influence ground -water flow directions (e.g., river floodplains); (6) waste management facilities located near intermittently or continuously used production wells; and (7) waste management facilities located in karst areas br faulted areas where fault zones may modify flow. in all cases, facilities should ensure wells are appropriately located and screened to allow determination of background ground- water quality that has not been affected by possible leakage from the landfill unit. The location of background wells also will be included in the certification required by § 256.51(d): c. Multi -Unit Ground -Water Monitoring Sys teras As previously discussed, the proposed rule allowed to State to approve grouping of landfill units for ground- water monitoring systems. The muW- unit ground -water monitoring system, however, had to be as protective of human health and the envirograent as individual•monitoring systems for each unit, The Agency recognizes that local conditions may make it difficult to install'a monitoring system around each landfill unit. The Agency did not receive any comments opposing this concept so it has been retained in $ 2a8.51(b] of today's final rule. However, because the Agency is providing for the self implementation of today's final•rule, only approved States will.be allowed to approve the use ofmuld-unit•systems. Unless an approved State allows the. grouping of units, the owner or operator will be required to install a ground- water monitoring system for each individual unit. , If used, the multi -unit system must be as protective of huraaahealth and the environmerit as individual monitoring systems for each unit. Because.of 1. general commenter concerns .that States need more guidance in implementing today's final raie,-the Agency added five factors for approved States to consider in approving the use of multi -unit ' systems. These factors, found -in § 258.51(b), include: (1) Number, spacing, and orientation of units; (2) hydrogeologic setting; (3) site History; (4) engineering design•of the units; and (5) -type of waste handled. These factors are similar to those factors' proposed for the Regional Administrator's consideration in'approving a multi -unit ground -water monitoring system for hazardous was,e 51060 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations facilities regulated under subtitle C (53 FR 78162). The rationale for these factors is discussed in the preamble to the July 28,1988 proposed rule (53 FR 78162). Multi -unit monitoring systems also must consist of a sufficient number of wells, installed at appropriate locations and depths, to yield ground -water samples from the uppermost aquifer that represent the quality of background ground water and represent the quality of ground water passing the relevant point of compliance. As discussed below, § 258.51(a)(2) requires that the dowvngradfent monitoring system be installed at the relevant point of compliance (not to exceed 150 meters from the unit on land owned by the owner or operator) designated by an approved State. in determining where to place monitoring wells in a multi -unit facility in compliance with § 258,51(a)(2), the approved State should draw an imaginary line around all units at the facility. This line would constitute the relevant point of compliance for a multi -unit system. Therefore, wells must be placed at this imaginary line. Of course, the approved State must first make the determination that it is appropriate and protective to use a multi -unit monitoring system based on the factors described above. d. Ground ,'Vater Monitoring and the Alternative Boundary The proposed rule allowed the Placement of monitoring wells at the closest practical distance from the waste management unit boundary or alternative boundary selected by the State under § 258.40(d). This ground- water monitoring performance standard was linked directly to the design goal of The landfill unit by requiring placement of the monitoring system so as to monitor the performance of the landfill design at the unit or alternative boundary. For example, if the unit was designed to meet the design goal at an alternative boundary, monitoring wells were to be installed at the alternative boundary, The alternative boundary could be no more than 150 meters from the waste management unit boundary, and had to be on land owned by the MSWLF owner or operator. Under the proposal, States would be required to consider eight factors before establishing an alternative boundary: (1) The hydrageologic characteristics of the facility and surrounding land; (2) the volume and physical and chemical characteristics of the leachate; (3) the quantity, quality, and direction of flow of ground water; (4) the proximity and withdrawal rate of the ground water users; (5) the availability of alternative drinking water supplies; (6) the existing quality of the ground water, including other sources of contamination and their cumulative impacts on the ground water; (7) public health, safety, and welfare effects; and (8) practicable capability of the owner or operator. The Agency's rationale for allowing an alternative boundary for meeting the design goal was to allow for consideration of the practicable capability of owners and. operators by allowing contaminant concentrations to diminish due to degradation, dispersion, and attenuation. Its purpose was also to allow for greater State flexibility in setting design requirements. The Agency received a number of comments regarding the alternative boundary designation which would permit ground -water monitoring wells to be placed at distances up to 150 meters from the waste management unit boundary. Several commenters asserted that the 150 meter boundary was overly conservative and too inflexible. A number of commenters suggested other locations for alternative boundaries Including.* the property boundary and unlimited locations, based on the risks posed by the facility. These arguments were countered, however, by other commenters who expressed concern that the allowable distance was - excessive, would simply allow dilution of contamination, and would delay detection of contamination. Several of these commenters argued that monitoring wells should be placed at the waste management unit boundary. The Agency recognizes that establishing the boundary designation for ground -water monitoring is an important feature of today's final rule, and may substantially influence the facility design and the types, timing, and costs of corrective action. Therefore, the Agency carefully reexamined the proposed approach to address concerns that this approach was either too stringent or not protective. The Agency disagrees with commenters who argued that the proposed approach was unnecessarily stringent. In developing the proposed rule, EPA considered setting the alternative boundary at the property boundary or not stipulating any limit. These options obviously would provide the greatest flexibility in addressing the practicable capability of owners and operators of MSWLFs. However, due to the size of some MSWLF facilities, EPA is concerned that large expanses of ground water could be contaminated before detection and, therefore, circumvent the intent of this rule. Thus, the Agency believes it is essential to set a maximum distance limit for'the alternative boundary (referred to in today's rule as the "relevant point of compliance") that would limit ground- water contamination, yet still provide some flexibility to owners and operators of MSWLFs. The Agency also specified in the proposed rule, and in today's final rule, that the alternative boundary [or the relevant point of compliance) must be located on property owned by the owner or operator to prevent contamination off site. The Agency believes this approach provides sufficient flexibility, while at the same time, limiting the area of contamination. The Agency acknowledges that allowing the relevant point of compliance to be set at a point beyond the waste unit boundary would allow dilution or contamination in some cases and delay detection of contamination. Although FPA generally prefers the installation of ground -water monitoring wells at the waste management unit boundary to provide the earliest opportunity to detect contamination, EPA believes the unique characteristics of MSWLFs warrant the flexibility afforded by today's final rule. First, the technical and economic resources of MSWLF owners and operators is limited in many cases. Corrective action is a' significant cost component of today's Tule and providing flexibility on the boundary designation fox ground -water monitoring can in some cases serve to reduce costs by allowing the owner or operator to take advantage of a limited dilution and treatment zone in the. ground water. In addition, the owner or operator will be able to, avoid overdesign and thus reduce costs. Second, EPA expects that in most instances, there w)11 be very little . potential for human exposure to contaminated ground water that remains within the property line (and no more than 150 meters from the unit boundary) of a MSWLF. Most MSWLFs are owned by local governments, who should be able to control ground -water use within the facility boundary. Section 258.40(d) of today's final rule requires that the relevant point of compliance be approved by an approved State after consideration of a wide range of site- specific factors. This approach ensures that careful consideration is given before a relevant point of compliance is set. EPA decided to retain the proposed site-specific factors in setting the relevant point of compliance. However, one of the factors used to establish a relevant point of compliance (factor.6) has been changed to reflect the = . . 'Federal Register / Vol, 55, No. 196 1 Wednesday, October.% 1991 / Rules and Rbgulations 51069 provisions outlined in EPA's 1991 Ground Water Task Force Report. This report calls for the enhanced role of the States in setting ground -water protection strategies to meet State - specific needs. As discussed in the preamble to today's rule, States may use ground -water classification and resource evaluations in making decisions regarding ground -water protection. Accordingly, factor 6 has been amended to include consideration of whether the ground water is currently or reasonably expected to be used for drinking water. EPA believes that this. approach is protective of human health and environment,, and, provides the necessary flexibility to address the unique ground -water protection strategies of the States. i I , As mentloned above, the proposed rule also allowed for the placement of wells at the closest practical distance from the waste management unit or alternative boundary to account for the presence of physical, obstacles, such as gas and power lines, that would be impaired or destroyed by well . installations in the area. Further, this provision allows for the installation of a well network while considering the locations of landfill design components such as run-off controls and liner anchors. The proposal also recognized that other factors can affect the placement of monitoring wells. For example, perched water tables or other hydrogeologic phenomena may cause leachate from a MSWLF to travel horizontally for a significant distance before reaching the uppermost'aquifer. For this reason, § 258.51(a) of the 'proposed rule allowed the State to select the closest practical distance downgradient from the waste management unit boundary or the alternative boundary if the uppermost aquifer.would not be affected directly beneath the appropriate boundary from releases by the MSWLF. In general, commenters supported the provision allowing monitoring wells to - be Iocated at the closest practical distance from the appropriate boundary (or relevant point of compliance), so this provision has been retained, with some modifications, in today's final rule. First, a number of commenters urged the 'Agency to require that monitoring wells be located at the closest practical distance hydraulically downgradient from the landfill. The Agency agrees with these commenters and has added "hydraulically downgradient" to . $ 258.51(a)(2) of today's final rule. The second change simply incorporates the use of the phrase "relevant point of compliance." The final rule specifies that owners or operators of existing units locate wells at the closest practical distance from the relevant point of -compliance where existing physical obstacles prevent Installation at the relevant paint of compliance. The Agency believes that owners and operators of lateral expansions, new; or replacement units will be able to account for the presence of structures or obstacles in the planning. process and will be able to place monitoring wells at,the relevant point of compliance. However, this may not hold true for existing ualts,that were constructed without consideration of the need for ground -water monitoring well installation. Therefore, the.Agency is continuing to allow owners and operators of existing'units to install ground -water monitoring systems at the closest practical distance from the relevant point of compliance, Finally, other commenters expressed confusion with the proposed provision allowing the State to select a location for well placement if subsurface conditions cause hazardous constituents to migrate horizontally past the selected boundary before descending into the uppermost aquifer. One commenter in particular noted that it was unclear if this additional location would create a second alternative boundary. To eliminate confusion, the Agency has modified § 258.51(a)(2) in today's ' final rule to require that the monitoring system be installed at the relevant paint of compliance that ensures detection of ground -water contamination in the upperrngst aquifer. Therefore, as an ` example, if contamination could migrate past the relevant point of compliance because of a perched zone that does not qualify as the uppermost aquifer, the monitoring system -must be --placed at the relevant point of compliance appropriate boundary, and be capable of detecting contamination that would enter the uppermost aquifer. As. mentioned before, the placement of monitoring wells must be certified by a qualified ground -water scientist, or approved by the Director of an approved State. 4. Section 25 8.52.DetelminGt on of Ground -Water Trigger Level . The proposed rule required States to set trigger levels for all appendix A constituents prior to initiation of Phase I monitoring.The trigger levelwas a health -based or environmental -based. level which was determined by the State to bean indicator for protection of human health and the environment. When available, these levels were to be maximum contaminant levels (MCL) promulgated under section 1412 of the Safe Drinking Water Act. If an MCL had not been established,., the level was to be a health -based level thatmet•four specified criteria. Contamination exceeding trigger levels indicated a . potential threat to human health or the environment that couldrequire further. study. The owner or operator would be required to conduct an -assessment of corrective measures whenever concentrations 'of hazardous constituents in the ground water exceeded trigger levels. . Many commenters objected to the requirement that States establish trigger levels for all appendix II constituents. Their rationale was that the task of establishing risk-based trigger levels was too complex and unduly' - burdensome for States; many States would lack both the technical and financial resources necessary to set trigger levels:: Several commenters pointed out thateven EPA had set very few MCLS; and that many States would have even fewer resources for this challenging task. Additionally, commenters alleged that allowing States to set trigger levels would lead to inconsistencies among the various States. Several commenters also pointed out that adequate toxicological information was not available for all appendix IT constituents, and that establishing health -based trigger levels.. for those constituents would be impossible, In response to the overwhelming number of commenters objecting to each State setting its own trigger levels for all appendix IT constituents, EPA has deleted § 258,52'in today's final rule. The Agency agrees with commenters ' that this exercise -would be costly, time consuming, and difficult for States to Implement. However, to Insure an . appropriate level for cleanup activities, it is necessary to have a ground -water protection standard for corrective action. Therefore, in today's rule at § 258,55(i), EPA is requiring that the ground -water protection standard for those constituents detectedabove background during assessment monitoring be either the MCL, if , available, or background concentration. An approved State may set alternative health -based or environmental -based levels determined by the factors ^provided in § 256.550). The requirements ,for ground -water prdtection standards are discussed more fully in the section on assessment monitoring. As mentioned previously, EPA determined that the.ground water monitoring program can be simplified by eliminating the establishment of the . trigger level. The ground -water 2070 Federal Register J Voir. W, No. 196 f Wednesday, October 9; 1991 f Pules and Regulations protection standard will be used fn place of the trigger level, ttrdetermine. when a facility should evaluate. and select corrective actlanremedies. This change doesnot reduce the level of protection affarded_by'tlie rule;. it merely streamlines the program (thus improving Its Implementation) - S. Section 258.53' Ground -Vater Sampling acid Analysis Requirements The proposed rule required.MSWU owners and operators to develop a ground-watermonitoring program that includes consistent sampling, and analysis, promdurem that would ensure - accurate ground -water monitoring, results.. The sampling and analysis procedures were; required to provide oil accuratareppresentation.o'both the background groundwater quality: and the quality of ground -water at monitoring wells placed down gradient from the Iandfkll•site. The. proposed rule set usinimum.requicernents for the. facility groundwater; monitoring program's sam ling.and analysis procedures and techniques. The procedures and techniques were to -be. documented in the facility's operating record andwere to include: [i) Sample collection; (2) Sample preservation and shipment; (3) Analytical procedures; [4), Chain of custody control; and (5j Quality assurance and quality control.: The proposed rule also set general performance standards for ground -water samplin and analytical methods that included: (1) The method used must acaurately measure hazardous constituents and other monitoring param a tens: (2). the -procedures and. frequency of the method mustbe- protective of human health and the envitonment; [3) the sampling method employed must ensure thaE the- statlsticalprocadure used would -have an acceptably Iaw probability of failing to Identify contamination; (4] ground- water elevations must be measured in each morn toring well immediately prior, to samplfngt (51 the rate and direction Of the ground-waterflow in the uppermost aquifer must be determined each lime ground -water gradient changes were Indicated byprevzous. sampling measurements; and (5) the background ground-wa.torquality be established at a hydraulically upgradfent wall for each of the monitoring parameters. or constttuents required by the applicable ground-water'monitoring program (requirementrfor datarminingg the: applicable program fnreachs landfill unit were provide&ln: ¢.258.54(pj arid: § 258.55{a}^a£the=lrroposedsulh}_ The proposed rule; a1laWed for vpriancxs; tsr the rarreat, tfiat,... background stow nd crater: qualityba' based upon sampling atmonitoring wells. upgradient from the unit. or area. The variance.was allowed.ifeither the hydrogeoiogic conditions do -not -allow the owner or operator to determine which weIls.are,upgradientand if sampling at other wells wouldprovide an indication orbackground ground- water quality that is, as repreaentative-or more representative of background quality than upgradi'ent monitoring wells. The proposed rule also, provided that a State -may determine background ground=water quality if background quality could not be determined on site. The requirements for applying statistical procedures in -the --proposed rule were the same•as the statistical procedures proposed on August24,1987' for hazardous waste facilities under - subtitle C'ofRCl3A (Statistical -Methods for Evaluating Ground -Water Monitoring Data from•Hazarddaus Waste Facilities, 5Z RR 31948): The Agency. believed- that the proposed subtitle C' procedures also were appropriate: for MSWI.Fs. and provided'sufficienf flexibility toallow effective State implementation. The Agencyaoted that the final statistical procedutes _ promulgate d under §'_2b8'.53.would reflect comments received an this proposal as well as the final, st�Ltistical package promulgated under 40 CFR p art 284. The proposed,requirements pcavided that. the owneror operator mustserect an appropriate:stalist3caLprocedure to determine if samples: taken.from, downgrad'ient monitoring wells represent.a statisti'caffy significant increase aver: background values for each parameter or constituent that . occurs in tha•downgradient sample -.The proposed rule required the owner or operator to employ one of four statistical pmcedures.or an alternafiive procedure that wouldprotect human health and the environment.andmeet the ground=water protection standard provided In § 25&52(b) of the proposed . rule, The.fourstatiaftalpracedures, provided in the proposed rule inciade. (1) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to Identify - statistically sigrrificant evidence of contamination; (2),An.an4lysis. of varianceabased os, ranks-.fotraw.ed.by: multiple compkaxisons.pwmdures. ta� identify statistically; sigmfibant evidence - of contamination; (3). A -tolerance or= prediction.interval.procadur; and. (4) A. control chart approach:- The.proposed; rale also: allowed:the State: to develop, an alternative, sampling .praaedure aiid, stat6ticAte4ifxiecessary to protect hurnaiz_ilealth.and. Else- ariaimxnmentr 1`n. establishing an-alternative-statisticat test, the-State'was to considerthe- • factors provided.in. § 25.8.53(h)PI.,rt)4v):. The proposed rule.required the owner or operator to determfne whether orvot there is a statis tidally significant increase overbackgroundlevels.for each parameter and constituent the owner or operator is required to monitor for under the appropriate. program;,The owner or operatorwas.requited: to make. these statist'icaf determirratfons'each time he or she assessed ground -water quality. In making this. comparison, the owner or operator was to,apply'a statistical procedure provided for h% tha proposed rule and:. make any determinations of whether there has been a statistically significant increase or decrease over background within a. reasonable. time period.. set.hy the State; after completing sampling..A reasonable time to perform.statistical analysts would typically be, upbrr.receip Lof analyticaLdatafiom the laboratory. EPA received manycamm[ents in response to.both this. rule. and the August 24, 1987proposed,statistical methods for -ground -water monitoring at hazardous:waste facilities. As. indicated in the preamble to -the subtitle D proposal, the Agency considered comments to bath proposed rulemakings when, establishing the requirements in today's final rule. In responseto•the subtitle D proposal' in particular, EPA received comments covering -the folrowirig areas: (1),The,use of statisticalsignificance; (21 the requiredfi•equencyofsampling and the number of samples:collected, (3) the - establishment of Type I and Type II error levels; [4 -)'the? measurement o£ -the rate and direction. of ground:water flow in the uppermost aquifereach-tune. ground-water:gradient changes;. (5) consistency with subtitle C'statistical . procedures: and (6)' sample filtration. Comments received: fn each area and the Agency's responses are discnsaed . below, a. Stat'sstfeal.Tests.' Many commenters expressed concern over: the use of statistical comparisons, to background: data to trigger assessment (Phase. HI monitoring Comment'ers:beiieve, that the rule. should be more-fl'exibke; and that othermethods. . of data analysi's.should be available for evali atingground=water monitoring- 'data. onitoring:'data. Twor commenfers believe that; becaus4i grourid-water-6ta are: subject to several kind`s ofrandom. aarlhbilHty .resultit,s.ftonrsprinaPatiall tempnrai, sampling a'nd ytica( soeuc . the-' use:aftTse'�progose�aYattatics-:�V.�u)if.,- _ `result irtexc.et;.faYst positives: Qrie,.. Federal Register. / Vol. 56, No. 196 f Wednesday, October 9, 1991 f Rules and Regulations 51071 of these commenters believes that particular procedures should not be specified in the rule because ground- water data evaluation is a site- and waste- specific issue. Commenters suggested that the final rule allow for the use of trend analysis, graphical statistics such as box plots and time versus concentration plots, descriptive statistics, and "action levels.".Two commenters suggested that decisions be based on careful data evaluation, interpretation by competent experts in water quality interpretation, or sound engineering judgement. The Agency carefully considered the comments suggesting that the Agency allow methods of data evaluation other than statistical tests. However, because of the decision to provide for the selfimplementation of today's final rule, the Agency is requiring a quantitative data evaluation method that could be consistently and objectively - . implemented according to a set of performance standards. Therefore, today's final rule requires that facilities evaluate ground -water monitoring data using a statistical method provided in § 258.53(g) that meets'the performance standards of § 258.53(h). It is important to note that § 258,53(g) contains a provision allowing for an alternative statistical method that may include some forms of trend analysis and, graphical methods such as control charts, as long as the performance standards of § 258,53(h) are met. Today's rule provides. several options for owners and operators who are choosing statistical methods, thus giving them the flexibility to consider site- specific factors when choosing statistical methods. EPA believes that at least one of these types of procedures will be appropriate far virtually all facilities. The statistical tests provided by today's final rule include: (1) Parametria analysis of variance (ANOVA) followed by multiple comparisons; (2) ANOVA based on ranks followed by multiple comparisons; (3) a tolerance or prediction interval procedure; and (4) a control chart. In deciding which statistical test is appropriate, the owner or operator will need to consider the theoretical properties of the test, data availability, the site hydrogeology, and the fate and transport characteristics of potential contaminants at the MSWLF. The owner or operator will then have to determine whether the procedure is appzoprlate for the site-specific conditions at the facility, and ensure that it meets the performance standards of § 258.53(h). , Guidance on choosing appropriate statistical methods can be found in Statistical Analysis of Ground -Water Monitoring Data at RCRA Facilities (EFA 530 -SW -89--026, NITS Number; Pi389-151-047), The proposed rule provided an allowance for States to establish an alternative statistical procedure and -statistical test for any of the appendix ff constituents or the proposed § 258.54(b) parameters if necessary to protect human health and the environment. The proposed rule lisped several factors that a State should cvnsider,for establishing an alternative statistical procedure, including: (1) If the distributions for different constituents differ, more than one procedure may be needed; (2) each. parameter or constituent must be tested for separately in each well, and tests for individual constituents are required to be done at a Type I error Ievel (an indication of contamination when it is not present) of no less than 0,01 while multiple well comparisons may use a Type I experiment -wide error rate no less than 0.05; (3) the owner or operator trust ensure that the number, location, and depth of monitoring wells will detect hazardous constituents that migrate from the MSWLF; (4) the statistical procedure should be - appropriate for the behavior of the parameters or constituents involved and should include methods for bandling data below'the Iimit of detection; and (5) the statistical procedure used should account for seasonal and spatial variability and temporal correlation. The proposed rule also allowed States to require statistical tests of trend, seasonal variation, autocorrelatien, or other interfering aspects of the data if contamination is detected in samples from downgradient monitoring wells and the State oC the owner or operator. suspects that the detection is an artifact caused by some feature of the data other than ground -water contamination. These trend analyses would be required to' establish whether the significant result is indicative of natural variation or of actual contamination, 'EPA received, several comments on the proposed rule's allowance for States .to establish alternative statistical procedures. Some commenters felt this provision was too general, while other commenters felt the provision did not give the State enough flexibility in establishing alternative procedures. One commenter maintained that the requirement that an alternative statistical procedure, employed under. § 258.53(h) (2) (v) of the proposed rule, m "be protective of huan health and the environment" was vague and lacked meaning, The commenter contended that a statistical procedure is a data evaluation tool, not a method to determine the potential for human and environmental impacts. AIthough the Agency believes that the protection of human health and the environment is the goal of a ground- water monitoring program, the Agency agrees that use of this general requirement as the sole performance objective of an alternative statistical test is not sufficiently specific. Therefore, in response to comments, today's rule has been modified to require that an alternative statistical method employed by an owner or', operator meet each oftthe performance standards given in § 258.53(h) of today's final rule. The owner oroperator must notify the State of the use of an - alternative statistical test'and place a Justification for the alternative test in the facility's operating, record. The justification must demonstrate that the alternative method meets the performance standards of § 258.53(h). The performance standards presented in § 258.53(h) are the same.as those required for all statistical tests listed in 258.53(g] of today's rule. The Agency realizes that the statistical methods outlined in today's final rule may not be applicable to every single MSWLF, and that the implementation of an inappropriate-• statistical test would not be protective of human health and the environment. EPA therefore recognizes the importance of allowing MSWLFs to choose an alternate statistic altest when the" statistical tests presented in today's rule are inappropriate for a facility's. specific circumstances. The Agency anticipates that as State programs become" approved, States will be taking on the responsibility of approving alternate' statistical tests proposed by MSWLFs. b. Frequency of Sampling and the Number of Samples Collected Many commenters were concerned that the use of statistical analyses would require fairly large data sets -or that the required sampling.freque,ncies would not provide large enough data sets during the initial periods of monitoring to determine statistical significance. EPA received similar comments to the proposed subtitle C ground -water monitoring requirements (August 24, 1987) 53 FR 31948. In responding io comments for the subtitle C requirements, EPA determined that it is necessary to conduct at least four independent sampling events from each well at least semi-annually before a meaningful. statistical analysis cart be performed. 51072 Federal Register I Vol, 56, No. 196. f Wednesday, October S,. 1991 J Rules: and Regulations, Today's final rule requires the owner or operator to determine whether there has been a statistically significant Increase over background, at each well, after thft completion:of required sampling and analysis ($ 258.53(1]). Therefore,. this will require the owner or operator to collect four samples from. each wall before the first statistical test can be performed, or in other words', collect four samples.,from each well, during the. first six months of monitoring for each monitoring parameter..This,iirst sampling event (i. e.Jour samplesfrom. each welll within. the first six months of monitoring would apply not only to detection monitoring, but also during, assessment monitoring. and, corrective action monitoringwhenever any new appendixli parameters are deteatedfn downgradient wells and background must be estabiiahe&lt, shauld be noted that I. 258.55 of today`a rule, allows the Director ofan approved State to designate a_ subset of wells for the owner or operator to sample and analyze durir& ass essment monitoring and corrective action monitoring, rather than each well, A further discussion: regarding this:flexlbililyis provided later in this appendix. During, subsequent sampling- events` after background concentratiorix have, been. established; however, today kfinal rule requires a nunimam of one sample -from - each well. Additional samples maybe required depending on the statistical, method used, Each successive°sample will be added to the sampling data base so that a statistical evaluation can be performe(L This provision differs in. some regard from the -sampling procedure specified in § 284.98 (g)[1) of -40 -CM part 284for hazardous waste facillties..The aubtitle C regulations require owners and: operators to ta'Re a sequence of atleast four samples,, at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained while considering tTie uppermost, aquifer's effectfveporoalty; hydraulic conductivity, liydraulia gradient, and the. fete and transport. characteristics of potential contaminants. This- sampling -procedure Is to be used urdess: the alternate_ provision under § 261.98(g)(21fs, approved by the Regional Admlhiatrator.•The:alternate sampling procedure may. allow ilxe,awner- or operator, to take- fewer than four samples semiannually if itis shown.that the facility'shydrogeologicsetting sloarrates: of gmund water flow.) would' preclude one from: obtaining four indeprndent.sampies during a six month period (Statistical Analysis of Ground- . Water Monitoring'Data at RCRA Facilities (April, 1989)): The. intent of this provision was to. allow, for flexibility in designing site specific sampling procedures agd'ta reduce the effects of autocorrelation (a measure of dependence• among s equential observations, from the:same:well);in ground -water samples. For subtitle -D MSWLFs, a minimum of one sample for subsequent.sampling; events, after background.is established - for each parameter,. was choserl. primarily because of practicable capability considerations. The sampling and analysis, costs, would quadruple -if four -samples tverereq*ed during;each semiannual: sampling. event. A MSWLF for. example, with 25 wells screened in. the same interval, would be required: to sample and analyze. IMgxound water samples every, six months. If the facility were.in detection monitoring,. the semiannual-analyticalcosts alone would exceed. $35,[100.00, and.field.s.ampling costs could nearly double Thai: figure. A number of MSWLFs. have more than -25 monitoring wells that are screened. throughout several saturated. intervals. The Agency iliereforeobelieves that sampling and.analyticaLcosts. associated with -a procedure requiring, four semiannnal.sampfes, wouldfar exceed the practicable capability. of many MS W1-Yowners and -operators. Additionally„the.Agency woulct like to emphasize,that although the rule: - requires a "minimum." ofone sample for subsequent~samplusg events after backgrpund•has been, esfablished. § 258.53(c),of.today's rule requfres.that sampling procedures and frequency be protective of human health, and: the. environment. Section 253.53(f,41130 requires that the number of samples collected be consistent witii,the appropriate statistical procedures determined pursuant to paragraph (g} Therefore, the owner or operator -may, find it necessary to, take more than, one sample during each sampling. event to. meet the rule requirements. c. The Establishment of Type -I and -Type 11 Error Levels The Agency received two° comments regarding the establishment of type I and type. Ir error Ievels., A typeTerror- occu.Mwfien a test incorrectly indicates contamination or an increase in contaminat%n. A. type Merror occurs% when monitoring fails: to detest contamination or an. Increase. In a concentration of a hazardous. constituent. One commenter objected. to. § 25an(c):of-the.proposedrule; which. required that flxe-sampling requirement ensure.tha t: the, statistical proce(fure used to evaluate samples.have an "acceptably low" probability of failing to ident y -contamination. The= commenter believed that the Agency should instead• provide: a specific levet for type r errors, of no. greater. than M5-. and preferably 0:01. Another -commenter was opposed to the-errorlevels: that were required for state•estahl°ished' alternate statistical procedures Lin § 258,53(h)(3)(ii)i.-TheCommenter believed it is' ary arbitrto. specify type I and type 11' error levels without taking into account -the monitoring system, the nature of the constituents, and analytical and sampling techniques: The commentarbelieved that:the Agency shoulri allow errorratns_tabehnsed on site_ and waste -specific: conditionsto• ensure• that a statistical, test.wfll both. reasonably detectreleasss.and keep the sampling and. analyticatrequitements within:a. practicable scope:. The Agency agrees: that It-' necessary, particularly in light of the• sel€ implementing mature of today's;rul`e; to specify type•I error -levels- for individual.welt comparisons:and• multiple wall= comparisons. The Agency believes -that, indi.'vidual facility owners and operators -would have difficulty in accurately deffnfngta.typeI'errorrate that would provide an."acceptably-low" probability of failing toddentify contaminations Cbnsequently,. the Agency included in today's -rale. the same performance standards for statistical tests promulgated'on October 11, 1988 for RCM. subtitlaC (53`FR 39720)_The.perforrnaace standardk contained in today's. rules specify.` type I error level& that, apply to. ail individual: wells and multiple.well comparison procedures, as.well: as- any alternate statisticaLprocedures. established by the State.as was proposed. - EPA's-basf"oncern•in establishing performance standards for statistical methods Is thrachfeve a• proper balance between the risk that the procadures7 will falsely indicate that. a.regulated; unit is causing background values or concentrationIimits tor-bmexceeded (false positives] and the risk that the procedures will M.fcrniiidicate that background values orconcenti_atiorr limits arebeingexceeded (false. negatives). The•approach promulgated today, as -for subtitle C, Is designedrto•- address that concern.directlyr.EPAis- limiting-the- type I error -level (false.- positive) for-the.purposeofcontrolling the t'ype!il error leval (false negative): The Agency has set the type Lerrorlevel at 0.05 for individual well comparisons - and at a.o5•fcr multiple comparisons:. The Agencybeiiaves.statistYaal• analyses . and samplingprorcedures•that meet the pertorrrrance standards�present'ed- in. Ferieral Register f .Vol -56 No. 196,Wednesday. October 9, 1992 t:'Rulss acrd: Regulia.tions'- 51a= today's rule would have a low. probability of indicating contamination when it is not present, and of failing- to detect contamination that actually rs present. Further;, the provisfonTfti- § § 258.54(c)(3) and258;55(g)(2) alloy owners and operators ta-demonstrate that the indicatforr of'contamThatfon resulted from an. error in staffsti'ca•1 evaluation. This e'provisfons-.vA l allow owners and operators -to control false. positivu ra-tes, The Agency believes facility owners and operators would.flh&Lit diificuitto: quanfiif"y, type I and type ILerror•levels that are based on. factors: suc%as: monitoring systems; the.nature; o€ .constituents, and'.an4ytical and_ sampling technfques- Thus,. the Agency is requirfng that. any statistical method selected under J-25B.53(gl should. meet the performance standards oaftedlm § 258.53(h) of today's rule: d. Measurement of the Rate and Direcfiorr of Crotmd-Water fTow EPA received severaf com irents regarding the determinafiaii.ofgpound- water flow- rate anddfiecficn. Twd commenteis were concerned that the'- rule requires water level measurement prior to well sampling, but does, not clearly state that ibe.measurement.of water levels should occur' prior to well purging,Tfiese commenters.were' concerned that -owners and,ogerators may measure water Ie:vels in wells shortly. after, the:well-s are purged. thereby- obtaining unrepresentative water level measurements. EPA agrees wft r the coucemg • - expressed bytliese commenters:, 5tatfc water levers should he m-easured-prior to well purging. Further, the Agency, realizes that=irrmany situations ground= waterrecovery in purged.wells•may'. take a consi`tlerable amount of time, Ground -water level measurements made in wells that have' not fully recovered will yield unrepresentative results', - leadina to. errors in,the-deferur inatfon of ground -water flow directions, hydraulic gradients, and ground=water flow rates. In order to avoid-- thisprobfeiat, the Agency has modified F 258.53(d) of today's rule to require tharownerg, and operators measuxewatezri'evulspridr to well purging Two other roam L-nterawishect to ensure that facility owners: arid: operators measure gr=d-water levels in all wells over a_short time frame.ao that accurate water level elevationa.can: - be determined. One commenter„ recognizing'that-a facility rriay-not sample allof their, wellssorirthegsame' day suggested that'rdther thart requiring : ' •owners, and -operators; ba-determin& water -level measurements-. prior: to sampling, EFA could. require; that'w.ater level measurements be=performed,at specified intervals. In response t€i these commenters concerns, § 258-3(d) of today':a rule requires that, fgrwell 9 thatarritor the same waste -management. area, owners and operators must. measure water level elevations within &-period-of time: short enough to avoid temporal variations: in. ground -water -flow that; could preclude accurate determination of ground -water flow rate, and directto_n. As the: comm enter noted, in. some instances ground -water. sampling, at, a given waste. management area may take more than one day. The Agency believes ihat . . water level measurements from boreholes, piezometers, or, monitoring wells: used to construct a. single plezometdQisurfacetahotildbe collected within a 24-hour period_ Mbreover, certain situations necessitate that all. measurements b-inade.within a period: of time fess than 24 hours. These' , situations include:,tidally influenced aquifers; aquifers affected by fiver . - stage, ftntindments, or unlined: ditches; -aquifers stressed by Intermittent ` pumping,ofproductionwell's and. aquifers. being activelyrecharged.due to a precipitafion event. CObsequently, facilities must measure water levels im all wells prior to initiating well" purging and sampling. 5ederal commenters believed that the requirement that the owveroz, operator, determine the•rafa and dkecffon of ground -water ilovrin the,uppermost aquifer each time groan-& wafergiadient changes; aslvdicatedby-previous! sampling, period elevation measurements; fs overlyburdensome,. unr•eallgtfc, and unhercessary: Commenters maintained that mangy' ground-water'flo* variations are the result of'seasonal factors; especially in dynami&ground-waterregimes, and -that any fluctuation of any grourid-water, ' level will resultin g ground -water gradient change, consequently each monitoring: event would requime a separate, evaluatidn:ofthe-rate and direction of ground --water flow. ' Cornmenfers= suggested a. varie fp or ways in Which. the proposedkule could be modified, irrcludiiig: (T) Re4uire recording- and repotting of ground -water level data, but onlyrequire:analysis-of° groundwater -level and.flow•data as, necessary to understand oe interpret: other ground -water data;. (2) require; evaluatioxr of waterlevel: datff: based' boundary'coaditfarmfor thsrange:of. "`routine" ground-wafergradientx expected-ata'slteduriirg�norrrial:. - . hycRageologiccyciesz(a) ccuiparekwater leveLmeasuremerns:to otlierwell -rdeasurertents to determine -if - - redefinition: of gmLmd. wat= flow rates and direction, is: necessary: an& (4j, require: that gnourrd-water erevatiovs be compared to the noraral'.rauge of elevations for: eaclrwelh and, if any cbanges, in,:rvater level elevation are= inconsistentwith otherwells,.indcative: of a change in graved -water, flow direction, or display gradients: beyond ranges observecTEn past"sampling- ` events, then analyze ground -water flow directions and rates for chariga. The Agency has considered: the . continents summarized.above, an& believes that 6:e-requfremenfsfor . d a taTTmna Lida of ground=water,ffow direction and rate do not represent a significantbnrden to owners and , operators. Moreover;. itis the Agency,"s .intent, to regnire facilities"to monitor - ' changes in ground=water flow_rate and direction, particularly in seftings where ground -water fl'ow•rafe anddirection, change dramatically, and(or^frequen:tly,, .Only by maintaintng. a constant enders tandfng orchanges• in. the direction and rate ofgreund'waterflow can facilities ensure..thatfliefr morufor)ag systema. are adequatefy designed to detect a.rerease„ and thaE facilities will be able to predx-ct the; fl to of a release;, shaulda rereas(_,tie detected or' corrective action -become. ,necessary - Although, subtitle C.6Rrently requires facilities to• daterrnina ground -water. - flow tlirectian arid. rate: atleast armtralL} .the Agency has -proposed requirements. for Suh:title: C. facilities i& daternr ine. ground water flow rate and direction more frequently, than annually, whem justified by site=,specific.hydrogeoTogic conditions (5& FR 2&1fi4)-Because o€ the,. self implemeuiing: approacFr for today's final rule, no mechamsm:exists for requiring amorefrequentdeterminadorn of ground -water flow directian.and:rate as provided for under subtitle C. . Therefore, today's final rule:requireg " that all faciltiiay. defermi ie ground- water flow direction; and:rate• each flex-; ground watecis sample.&Ze AAgeiYcy does norbelieve:requiringflotiw rater . calculations ,each: sampling= event will-represent_any, increased:bnrden: ta- owners andoperators-Eati'nWng average flw,%,rate.generallyraquires only &simple calculation,',usingvalue : for porosfty, hydrarrlinconductivity, an& hydraulicgradient:T e-Aprit19sgEPA publicatia=5tatlsticalAnalysrs-of Ground-Water.Monit ogng.liata-a:f. RCR - Facilitios WA 53t> -SW -89a -o2% N7'L5-hlumber; PB89-15T---047),.pravfdes guidance.ondrat Tinining.grtnurd water fkowrat_�Valuexforspozosityr=,b .. -- hydraulic condudtiuityshouU-be- - determisred. h.zfa,ilities: ditrfiig'thefr ate 51074 Federal Register / Vol. 56, No. 196 f Wednesday, October 9, 1991 J Rules and Regulations Investigation activities. Hydraulic gradients can be determined using a simple calculation once ground -water elevation data are available to draw equipotential lines on a map of the facility. Grdund-water flow direction also can be determined from a map displaying equipotential lines. e. Consistency With Subtitle C Statistical Procedures The proposed statistical procedures were the same requirements as those proposed on August 24, 1987, for hazardous waste disposal facilities regulated under subtitle C of RCRA (see 53 FR 31948). Today's final statistical procedures reflect comments received on the final statistical package promulgated under part 264 of subtitle C. Comments on the statistics rule promulgated under subtitle C addressed the foHcwing areas: (1) Power of a statistical test; (2) methads to analyze below detection limit data; (3) establishing background concentrations with downgradient wells; (4) guidance document; (5) data distribution assumptions; (6) obligation of owner or operator to propose statistical methods and sampling procedures; (7) data variability and sampling procedures; (8) procedures at interim status facilities; (9) determining background concentrations; (10) sampling required by proposed § 264.98(g)(2); (11) type I experiment wise error late; and (12) time intervals for ground -water sampling. Comments also were received in many of these areas on the proposed subtitle D rule and have been discussed previously in today's notice. Additional. discussion of these comments is contained in the preamble to the October 11, 2988 final rule which outlines statistical methods for evaluating ground -water monitoring data from hazardous waste facilities (53 FR 39729). Today's rule Incorporates one additional provision of the final subtitle C statistical procedures rule that was not specifically Included in the proposed subtitle D rule. In the proposed subtitle C rule, the Agency invited public comment on the methods available for analyzing data where the background level of a constituent is either below the detection limit of the analytical method used or is recorded as a trace level of the constituent. The proposed subtitle D rule required the owner or operator to evaluate different ways of dealing with values below the limit of detection and choose the one that is most protective of human, health and the environment. Several commenters to the subtitle C rule requested EPA to consider establishing national baseline values for compounds that do not occur naturalIy in ground water, and as a result are frequently recorded as below the ]hilt of analytical detection in background monitoring wells. Specifically, the commenters suggested that EISA conduct a round-robin study involving several different certified chemical laboratories to establish national baseline values for these compounds. The Agency did not establish national baseline values for each constituent in the final subtitle C rule, but instead, required that the statistical method chosen include procedures to evaluate data that are below the limit of analytical detection. The Agency also added the requirement that any practical quantitation limit (PQL) used must be the lowest concentration level that can be reliably achieved with specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility. Accordingly, RPA Inas added the same requirement to § 258.53(h)(5) of today's final rule. Appendix II bf today's final rule lists the method -specific PQL for each constituent These PQLs are the Agency's best estimate of the practical sensitivity of the applicable method for RCRA ground -water monitoring purposes. On July 9, 1987, the Agency published a final rule, "List (Phase I) of Hazardous Constituents for Ground -Water Monitoring" (52 FR 25942; July 9, 1987) listing practical quantitation limits (PQLs) for specified analytical methods capable of detecting Appendix IX parameters. The PQLs were established from "Test Methods for Evaluating Solid Waste" (SW -846]. SW -,846 is the general RCRA, analytical methods manual, currently'in its third edition. The PQLs listed there and in Appendix H of today's final rule represent EPA's best estimate in 1986 of the lowest concentrations of analyses in ground water that can be reliably determined within specified Iimits of precision and accuracy by the indicated methods under routine laboratory operating conditions. These numbers do not represent a determination of detection limits in other matrices (55 )~R 22540-42; June 1,1990). The PQLs are included for guidance purposes only and are not part of today's regulatory requirements. Regulatory authorities may find PQLs useful in checking on a laboratory's performance and in evaluating analytical methods. A background document containing information about analytical methods and their established PQLs can be found in the docket for this rulemaking. L Sample Filtration Many commenters questioned whether the Agency was requiring owners or operators to measure dissolved (filtered samples) or total concentrations (unfiltered samples) of constituents in ground water. As discussed below, the Agency believes that samples should not be field -filtered prior to laboratory analysis., During ground -water sampling, every attempt should be made to minimize changes in the chemistry of the sample that may result in a non -representative view of the subsurface environment. A sample that is exposed to the - - atmosphere as a result of field filtering is very likely to lose a significant amount of volatiles, thereby providing non -representative monitoring data. Further, emulsion -trapped organics are lost through field filtering. Field filtration of ground -water samples for metal analyses will not provide accurate information concerning the mobility of metal contaminants. Some mobile metal contaminants may move through fractured, Karstic, and porous media, not only as dissolved species, but also as precipitated phases, polymeric species, or adsorbed to inorganic or organic particles (e.g.; colloids) that are likely to be removed by filtration. Therefore, § 258.53(b) of today's final rule prohibits MSWLF owners and operators from field filtering their ground -water samples in all cases. The Agency recognizes however, that there are certain circumstances where it is necessary to filter or centrifuge the sample under controlled conditions in the laboratory prior to analysis to prevent instrument damage. Sample filtration in the laboratory is permissible If, after acid digestion, insoluble materials (e.g., silicates) remain and could clog the instrument nebulizer. If this step is necessary, the filter and filtering apparatus must be thoroughly cleaned and prerinsed with dilute nitric acid. Laboratory personnel should consult SW -848 for information concerning these procedures. The Agency would like to note that background concentrations also will be established on the basis of unfiltered samples (as are MCLS) thereby providing a consistent comparative basis for data evaluation between background and downgradient monitoring welts. b. Section 258.54 Detection Monitoring The proposed rule set forth a list of parameters that were to be monitored at least semiannually (Phase I monitoring) as the primary means of detecting Federal. Register.t, Vat bai.No. 196,/ Wednesday,. October 9, 1991 [ Fnle& aInd Reguiaffons< 51075 ground-watercontsmiriation during the active.life andclosure of a unit The (14)'i`otat Organic Carbon (TOC); (15) except for bromachToremethane: Tkris actual monitoring frequency used•was.to pH-, (1Fi) Arsenic cheraisal' is amenaiile to analysts by EPA Methods 8021 and 8260. It is often be -based on the grotmd=waterflmwiate and: theresource-varue of the. aquifer. (17) Barium;. _ (19) Cadmium, used asp an -internal standard, but.the During post=clasuracare however; the (19) Chromiumr Ageney believes tlraf otherstandards are available..Two cheniicals> 4- . prvose&:rureallo"wed the State to set a differentminimum frequency on, a, site (201 Cyanide; [211 Lead,,. bromofluorobenzene and'T,4-, specific.Basis,The proposed, monitoring (22) Mercury: difluorobenzerre, were deleted- because= they are usedas'infernal standards far parameters ihclud'ed.majoa cations, major anions, metals cyanide, and 46 (2s) Selenlum: 24 SilverTand; [ ) mass spectrometry,&terminatiozr:Fcur volatile. organic compounds (VOCs).. The propasedrale:requlredthaf.an (25) The 4B VOCs iisted.in appendix].' In the. preamble to. the, ptoposecfrule„ others -were deleted For.the #ollawiitg reasons: Etliandl, because if doesnof owner or operator expand: the.Phase'.I. monitoringwher Phase,ore the Agency ftwited public comment on this listofPhase lmonita i`no . Purge: ad6guafely in the purge -trap desorb techiffque Z-chloroethyl vinyl- - monitoring: when: twq ar urore of; wo � � parameters, Five commenters supported the list of proposedparameters, ether. because,afpoorpurgingand instability- ofstandard solutions; ethyl y parameters (TJ to (15); anyone- of parameters: to or any of the however, the majority of commenters methacrylate, €ovwhIch confifctftig' VO v is -that s appendix]: were d': froI d dix appendix atlevelsnAlergls.Wntn,t ilocc:from felt the list was too exfensive for routine monitoring and saggesFed it be'reduced.' information has-been recerveddregardino reliability- of determination -in routine: ieQeIs When, tins . The contendedthaftheamount of VOCscreenfng�anslysrs;-aq the owner o the owner or=operator was: required to . wa requireda notifgthe:Statao£the.statistically required sampling y q p wouldho t onl" overwhelmMSWLFowners and dichlorodifluoromethane; because: if is - the only analyze in this p Y Y grow that significant finding within 14 daya'and � implement Phase ILiidnitoringwithin-go operators who would perform and fund analyses, but also w'Od overwhelm the requires charcoal in ttre>krap and fire charcnal aanreduce sensitivity to:other- days. or an alternative time period States'rivho, woulct need to devote. time Appendiac l analyses-, rational and approved: by the -State.. Prior to for data revrew and analysis. data supporting each deletion. iso ' implementing Phase. It monitoririg� the, In contrast, several comi>zenters suggested additions to tfis Fhase I discussed fully in background" documents.to this.rule:, owner orthata errarin-Bald plifig-mdta the State err and monitaringlisf.-Specfically; commenters Eight chemicals ab-, added tathe- p that.samplilig analysis oceurxed or'that the � re occurred su ested addin fetrachloroetli Tene; gg g �' which is currently regulated under the ro used VOCs listedimA andixr:b p p PP Y today`s Hnal ruIe;.3„2-dibromo-a- ' contamination resultedfrome a source othezfhan the MSWLp, SafeDrinking Water Act alkalinity (as chTorogropane,l;2-dtbromoetliane; a - The Agencyreceived extensive CaCO3), Water temperature [to-aidiir dielilarabenzene;.p-dichlorabenzarzew l,2= comments on the:Phase] monitoring chemical conversions).radioactive dichloropropane,1,1,1,2- program. The majority of,tlie contaminants; speoif1c'.conductance, tetrachloroethane; tefrachloroethylene; commenters addressed tlie_listoF carbonate; fecal b-acferla;.biological and cis-1,2-dzchforoethylene. The,fi'rst- monitoring parameters. Additionally, oxygen demand (BOD), organic -nitrogen, seven are-irr both the RCR'.Ac:hazardous • . other commenters addressed the sampling and.analysfs procedures,; the and to tai Kjeldahl nitrogen_ $ Ageixeyreeval o an -he Tist of waste cons&uk nt-list•(Appendix=-of 40 CFRPart.Z81),.and the'ground-water Phase.ILmonitann F`y,Thesand•the; detection monitoring prarameters in•"" monitoring. fist (Appendix 1'X oF4fi CFI me.dlsciis frequency^.Thesecomments response• to, thes&comments. the Part 2641,The;cisT,2=dicTit-oroethyleneis- arediscirssedbelow� Agency proposed theuse-use inA endi�cVl as airuns ecified PP p a: Mon tornngiist indicator parameters because, analyses of available date show- that VOCs are" isomer and is fncrude-cf specifically 'among VOCs proposedforadditioirfa The. Agency proposed a listo€ more mobile than many-otlrer:organfc the National Primary Drfnkf?igWater" .monitoring,parameters: that the Agency compounds. These compounds, are fairly Regulations byr,EPA in May 1989 (54 ER believed provided- iLmliabl.e.meanx of soluble in water and have low molecular 22062) uzider the Safe DrinkingWafer' detecting the possible presence.a£ weights, both of which read to enhanced Act. Today's rule -amends: appe adfx I to releases. fTom MS.WLE&whileavoiding mobility in ground watei .Further, VOCs include each of these• constituents unnecessary analytical costs, to the do not tend toliave a: high sorptive because tlieAgenay BeI3eves [17 These' regulated"commuri ry The inafor cations potential'on to matrix aquifermaferfal. constituents• may be present in endanionsthatwereon.the Phase I Therefore, the, Agency believes. that MSWLFs;(2)each-of ihese,consfituents parameter list axe. those. used. to: classify volatile organics wouldbe among the-- is of concernth in -e protectforr of human ground' Water Into,geochemteal£acies: best indicatorsfor earlkdetecfion ora. health and fhe environmenir and E31- The proposed,parameters consisted of release, and has retained them Irt their additfon ta-'Append k I wflL (11. Ammonia [a& Ny; appendix is ine'rease• the' abilfty-to•defee t protential (21 - Bicarbonate 006)7.Commenters generally supported migration o€contamiriants, to the ground (3) Calciunti detection monitoring ftrr VOCs but water franr. MSW1;Fss I-fo Iver, - X41 Chloride;'. requested that.seven chemf 51076 Federal Register / Vol. .96, No. 196 j Wednesday. October 9, 1991 j Rules and Regulations Incurring no additional costs. Appendix I of today's final rule now contains 47 VOCs. A number of commenters suggested that EPA limit the number of VOCs required for analysis to a single analytical method. Several commenters requested that the list be limited to those VOCs that can be analyzed by EPA Methods 601, 602, and 524. One commenter implied that EPA Method 8249 be recommended. In response to these comments, the VOCs on today's final Appendix I list are amenable to a single method. The Agency believes that Method 8280 (capillary column) Is the preferred scanning method for all of the VOCs on Appendix I because of its ability to analyze for a large number of compounds: however, the Agency is not requiring a specific method in today's final rule. The proposed rule identified eight metals to be analyzed during the first phase of monitoring: Arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver. Several commenters suggested that the metals be removed from monitoring, though one commenter suggested the list of metals be expanded to include copper, nickel, and zinc. Most commenters implied that the metals should be deleted because of their lower mobility. While the Agency agrees that metals are less mobile than the VOCs and that they may be less significant in indicating a release from a newer MSWLF than the VOCs, the Agency believes that the metals pose serious threats to human health and to the environment. Recent scientific studies [available in the docket for this . rule) have shown that metals may undergo a facilitated transport phenomenon through sorption to colloidal particles. This process makes metals more mobile in ground -water than previously thought. Further, since the geochemical parameters have been eliminated, the metals will provide a direct indicator for inorganic releases to the ground water. Therefore, the Agency requires monitoring for specified metals In appendix I of today's final rule. The Agency has, however, revised the list of metals for detection monitoring. In response to comments, the Agency has added copper, nickel and zinc. The Agency has also added antimony, beryllium, cobalt, thallium, and vanadium to the required metals in appendix I. The Agency added these eight metals to the detection monitoring list because they are representative of MSWLF leachate. Additionally, all of the metals are amenable to the same ICP scan, and will not significantly increase the cost of the monitoring requirements. The rationale and data supporting the use of these parameters is discussed fully in background documents to this rule. The Agency notes that mercury and cyanide were originally proposed as constituents for detection monitoring. However, neither are amenable by the ICP scan method and thus both require separate analytical methods. The Agency does not have specific information indicating that their addition to appendix I would improve the ability to detect a release from a MSWLF: therefore, in today's final rule, EPA is not requiring analysis of these two compounds during routine detection monitoring. However, because of potential threats posed by cyanide and mercury, they have been retained on appendix 11 and are required for analysis during assessment monitoring to determine their presence in ground water. A number of commenters supported tl?e use of the inorganic geochemical parameters that were included an the proposed list of appendix I parameters (parameters 1 through 16). The majority of these commenters indicated that these parameters, or a subset of them, provide the best indication of a release from the MSWLF and can be economically analyzed. One commenter indicated that they have witnessed a long history of ground -water monitoring at MSWLFs and found that.the geochemical parameters performed well as indicators of a release to ground water. Several commeziters however, objected to the commonly and naturally occurring inorganic geochemical parameters that were included on the list. These commenters alleged that these constituents exhibit natural spatial and temporal variability and may falsely indicate releases, After careful consideration of these comments, EPA has decided against requiring the use of geochemical parameters in detection monitoring (appendix I) for several reasons. Eleven of the proposed parameters are naturally occurring in soils and ground water. The remaining four parameters, COD, TDS, TOC, and pH, are common test parameters that are not specific to any one element or class of man-made chemicals. Moreover, the Agency notes that natural variability(both temporal and spatial) of the geochemical parameters is extremely difficult to characterize, especlally in heterogeneous hydrogeologic settings. This could lead to an excessive number of false positives and false negatives during detection monitoring. Also. changes in the geochemical parameters have not been correlated with fate and transport characteristics of hazardous constituents from MSWLFs. Finally, the analytical costs associated with monitoring a large suite of geochemical parameters (e.g., ,fifteen, as listed in the proposed rule) may significantly exceed the cost of -an analytical scan method inductively coupled plasma (ICI') emission spectroscopy for metals), that has the capability of providing information 'on many more hazardous constituents. For these reasons, the Agency did not retain the proposed geochemical parameters in appendix I of today's final rule, However, in response 'to the relatively large number of commenters in support of the geochemical parameters, the Agency ie allowing approved States the flexibility to use the geochemical parameters in lieu of some or all of the heavy metals on a site-specific basis, This flexibility will be discussed below. One commenter suggested creating different lists of indicators for various waste types. However, the Agency does not believe that wastes in all MSWLFs can be characterized as homogenous. The various Iists would place an increased burden on the owner or operator to characterize the waste in the landfill in order to choose a specific list of monitoring parameters. Therefore, EPA beizeves-that one comprehensive monitoring list is appropriate. The Agency realizes that it is difficult to create a detection monitoring list that is capable of identifying every possible release. Therefore, the Agency developed a minimum list that should be able to detect, with reasonable confidence, nearly every type of release from a MSWLF while considering the practicable capability of the regulated community. This list of parameters, as specified in appendix 1, includes the 15 metals and 47 volatile organic compounds discussed above. It is possible to analyze all of the required detection monitoring constituents in appendix I by using only two analytical "scan" methods; a gas chromatographic mass spectroscopic procedure (GC/MS) for the volatile organic analyses and inductively coupled plasma emission spectroscopy (ICP) for the metals. EPA is not, ' however, requiring the use of the Gd/ MS or the TCP spectroscopy. The Agency believes these methods involve high identification reliability, although they are not the only or necessarily the best methods for achieving the lowest detection limits for any specific analyze. The Agency has considered the practicable capability of the regulated community in selecting the constituents Federal Register f Vol. 56, ,No. 196 j Wednesday, October 91 1991 j Rules and Regulatiolis 51.077 for detection monitoring and believes that the final appendix 1 list is sufficient to protect human health and the environment while avoiding unnecessary analytical costs, Due to the self -implementing nature of today's final rule, the Agency believes it is necessary to identify a minimum set of parameters for detection monitoring. However, in response to a number of comments that were received, the Agency is allowing approved States to specify a set of indicator parameters for detection monitoring on a site-specific basis. To provide approved States with additional flexibility, § 258.54(a)(1) of the final rule allows an approved State to remove constituents from the detection monitoring list if it can be _determined by an approved State that a constituent is not reasonably expected to be in, or derived from, the waste contained in a MSVVLF unit. The Agency believes that an approved State would delete parameters from the detection monitoring list only in rare instances where the owner or operator of the MSWLF can demonstrate definitive knowledge of the nature of the waste being disposed in the landfill. This may occur where the.chemistry of the waste is uniform (homogeneous) throughout, such as in municipal waste combustion (MWC) ash monofills. Additionally, an owner or operator of a new MSWIY who maintains accurate records of waste placed iii the landfill (via a comprehensive waste analysis plan) stay be able to show the unlikelihood of certain constituents appearing in leachate emerging frolic the landfill. in these situations, an approved State may conclude that some of the appendix I constituents are root appropriate for ground -water monitoring et that MSWLF, This variance Is not available to MSWLFs in non approved States due to the self -implementing nature of today's, final rule... in addition, § 258.54(a)(2) of, today's rule allows the Director of an approved State to establish an alternative list of inorganic indicator. parameters fora MSWLF unit to be used in lieu of some or all of the heavy metals (parameters 1 through 15 in Appendix 1) if the alternative parameters provide a reliable indication of inorganic releasea from the MSWLF unit to ground water, In determining the alternative Parameters, the Director must consider the factors outlined in § 258,54(a)(2) (i)— (iv).. Although the Agency generally feels that geochemical parameters may not be the best indicators of a landfill release (for reasons discussed earlier in this appendix); the Agency feels that the geochemical parameters may be reasonable indicators in those instances where natural backgroundlevelz.are not so high as to mask the detection of a statistically significant release or where there is minimal natural spatial and temporal variability in the geochemical parameters. FTA would like to stress that (1) this alternative list may only be granted by an approved State on a site- specific basis because ground -water Chemistry may vary from site to site; within a State; (2) the alternative list may contain both metals and geochemlcai parameters because a complete replacement of metals with geochemical parameters may not be protective in all instances; and (3) this altarnative list does not allow removal of the volatile organic constituents (parameters 1B through 62 appendix 1), b, Monitoring Frequejzcy The Agency requested comments on the minimum semiannual monitoring frequency for Phase I presented in the Proposed rule, The proposal required Phase I ground -water monitoring at least semiannually during the active life and closure of a unit. The actual monitoring frequency required -by States was to be based on the ground water flow rate and the resource value 'of the aquifer. During Post -closure care, however,.the Proposed rule allowed States to set a different minimum frequency on a site- specific basis, ' The Agency received varied comments on the proposed minimum . semiannual monitoring frequency. A few commenters supported the minimum semiannual monitoring frequency while one commenter suggested that monitoring be required quarterly. Saveral'commenters suggested that the nzinimurn semiannual monitoring frequency was excessive and requested omy annual monitoring. A number of commenters favored allowing owners and operators to demonstrate an appropriate sampling frequeii4 for their facility based on, the flow rate within the underlying aquifer. Finally, some commenters supported a phased approach for Phase I monitoring. This scheme would allow owners and • operators to monitor semiannually for a subset of the parameters (e.g., the geochemical parameters) and monitor annually, or less frequently, for the remaining parameters (e.g., the metals or VOCs). The Agency originally proposed, a semiannual monitoring minimum to prevent large volumes of ground water from being contaminated due to inaccurate measurements or uiiexpected variability in groundwater flow . velocities.'rhe Agency recognizes that across the United States, ground -water flow velocities can range from several feet to greater than 2,000 feet per year. In some geographic areas, a minimum annual monitoring frequency could allow contamination to travel considerable distances before detection. In areas with low ground -water flow velocities, the Agency recognizes that quarterly monitoring could be overly burdensome. The Agency believes that the semiannual minimum monitoring frequency strikes a balance between Protection of human health and the environment and the practicable - capability of the regulated community. This also -is the minimum monitoring frequency 'required for hazardous waste disposal facilities (40.CFR part 264 subpart F). In addition, due to the self - implementing nature of today's final rule, the Agency believes it is necessary to set a minimum monitoring frequency. Therefore, today's rule requires a minimurim of semiannual detection monitoring for owners and operators'.in States with unapproved 'p_ The Agency realizes, however; that the need to vary monftonn- g frequency may make aense in certain situations and should be evaluated'ori a site- specific basis, The sampling frequency rhos an by the MSWLP must be sufficient to protect human health and the environment (§ 258.53(6)j. For example,depen,ding'on the;Ilowrate of the ground water and the resource value of the aquifer, less frequent monitoring may be allowable or more frequent . monitoring may be necessary. For this reason the Agency is allowing approved States to specify an alternate frequency for repeated'sampling and. analyses for appendix I constituents during the active life (including closure) considering the following factors: (1) Lithology of the aquifer and unsaturated zone; (2) hydraulic conductivity of the aquifer and unsaturated zone; (3) ground -water flow rates; (4) minimum. distance between upgradient edge of the MSWLF unit and dowpgradient monitoring.well . screen; and (5) resource value of the aquifer. However, the minimum ' frequencyduring the active life (including closure) must be no less.than annual. Additionally, because there may be a lower probability of releases from a closed M$WLF, the Agency also is ' continuing to allow approved States to set alternative frequencies for monitoring during the post -closure care period based on the above-mentioned factors. Finally, the Agency considered the monitoring schemes suggedted by commenters whereby owners and operators would monitor'semlannually for a subset of the monitoring 51078 Federal Register f Vol. 56, No. 196 f Wednesday, October 9, 1991 / Rules and Regulations parameters and monitor less frequently for the remainder, The Agency believes that this approach would, in a sense, create a complicated three -phased monitoring program. As discussed earlier, the majority of commenters requested that the final rule be simplified. The Agency, therefore, has attempted to simplify all aspects of today's final rule while ensuring, that the requirements are adequate to protect human health and the environment. For this reason, the Agency did not Incorporate the monitoring schemes suggested by these commenters. c. Assessment Monitoring Trigger should be noted that the assessment monitoring trigger will not change even if the Director of an approved State allows the use of geochemical parameters in lieu of some or ail of the heavy metals. In the situation where an owner or operator suspects that a statistically significant increase in a geochemical parameter is caused by temporal or spatial variability, the owner or operator will have to demonstrate that this increase was due to natural variation to avoid proceeding to assessment monitoring. A discussion of this demonstration is found in section (d) below. The proposed rule required the owner d. Response to 5tatisiicalIy Significant oro PralOr to initiate Phase II Increase monitoring if there was a statistically Proposed § 25154(d) required that an significant increase overbackground (or owner or operator expand the Phase I decrease in the case of pH) for two or monitoring program to Phase II more of parameters (1) to (15), at a monitoring when two or more of statistically significant increase over parameters (1) to t15), any one or more background far any one or more of of parameters (16) to (24), or any of the parameters (16) to (24) or any of the VOCs listed in Appendix I were 'OCs listed in Appendix I. The Agency detected at levels that significantly chase to require a statistically differed from background levels. At the significant increase (lir decrease) in two point thatPhase II monitoring was . or more of the geochemical parameters triggered, the owner or operator was to as a trigger for Phasa H monitoring notify the State of this finding within 14 because many of these parameters could days, and was to begin a.Phase II be elevated by human activities (e.g., monitoring program within a reasonable agriculture) or natural geologic and soil time period as determined by the State. variations. Within seven days of triggering Phase II A few commenters objected to the monitoring, the owner or operator could triggering mechanism outlined above notify the State that he or she intended because, in their opinion, it ignored the to demonstrate that detection of goachemical correlation among several significant changes in ground -water of the parameters. They asserted that quality during Phase I monitoring was relying on statistical changes in one or caused by sampling or analytical error, two of the Indicator parameters would or caused by a source other than the lead to false positive readings. MSVVU.'The owner or operator then Cdrnmenters requested that the Agency had 90 days, or an alternative time increase the number of parameters period approved by an approved State, which must exceed background at a in which to complete this demonstration. statistically significant level. Such a demonstration may show that Because the Agency deleted the false positives ti.e., when a test geochemical parameters from today's incorrectly shows contamination or an final rule, the Agency believes that the increase in contamination) were caused commenters' concerns have been by errors in sampling (e.g., improper addressed. The detection monitoring decontamination procedures of non - parameters provided by today's final dedicated bailers), analysis (e.g., lab rule do not exhibit the high degrees of 'contamination of sample with internal spatial variability in most standards such as methylene chloride), hydrogeological environments as do the statistics (e. g., false positive problems proposed geachemical parameters. associated with many comparisons), Therefore, Q 258.54(c) of today's final and/or natural variation in ground - rule requires an owner or operator to water quality (e. g., temperature and begin assessment monitoring if there is a spatial variability). If the demonstration statistically significant Increase over proved that the contamination was not background for one or more of the from the MSWLF or was based on constituents listed in appendix L inaccurate results, the owner or operato Because pH has been deleted from the could halt Phase II monitoring. list of detection monitoring parameters, Marcy commenters supported the the determination of a statistically availability of this demonstration significant decrease does not require an provision. One commenter stressed that owner or operator to establish an Phase II monitoring should net be assessment monitoring program. It delayed until the demonstration Is completed, however, because of the possibility of additional contamination. The Agency agrees with the commenter. Section 258.54[c) (3) of today's final rule requires the owner or operator to initiate an assessment monitoring program if, after 90. days of determining a statistically significant increase over background for any of the constituents listed in appendix 11, the owner/ - operator cannot perform a successful demonstration. This timeframe was proposed as the time allowed for an . owner or operator to complete the demonstration that the statistically significant increase resulted from a sampling or analysis error or that contamination resulted from a source other than a MSWLF. Although approved States may modify the 90 day time period (§ 258.5of g)), the eo day cut- off now sets a definitive time frame for purposes of self -implementation of today's rule. A few commenters requested that the time allowed for making the demonstration be extended (e. g., to 180 days). They asserted that it would take more than 90 days to resample and have laboratories conduct new analyses. They further added that it would•take more than 90 days to conduct field investigations to determine that another source is causing the contamination. The Agency recognizes that it could take more than 90 days to make the" demonstration, and as a result, § 258.54(c) (3) of today's final rule does not place a time limit for owners and operators to complete the demonstration. However, if after 90 days the owner or operator has not made a successful demonstration, (s)he must begin an assessment monitoring program. Any owner or operator may demonstrate that the statistically significant increase resulted from an error in sampling, analysis, statistical evaluation, or natural variation in ' ground -water quality, or was caused by a source other than the landfill, but this activity does not waive the responsibility of the owner or operator to establish an assessment monitoring program after the allotted timeframe. Owners and operators in approved States should note that the Director of an approved State may modify the 90 day time period for a successful demonstration pursuant to § 258.50(g). if the demonstration proves, after r 'assessment monitoring has been initiated, that the contamination was not from the MSWLF or was based on Inaccurate results, the owner or operator may cease assessment monitoring and return to detection monitoring. If the demonstration -is successful, the owner 'Federal V01. 56, NO.. 198 / Wednesday; October 9, 2991 Rules and Regulations _-51079 or operator"is required by § 258.54 (c) (a) to place a notice in the operating record. Today's final rule no longer requires the owner or operator to notify the Slate of his or her intent to make the demonstration because of the self, implementing approach of the final .regulations. However, because today's final rule is'sel£-implementing, the owner or operator must h,.ave the demonstration certified by.a qualified ground -water scientist. Several cornmenters,also requested" that the timeframe for notifying the State of a statistically significant, increase be extended,(e,g., to 3o clays). Yhe commenters believe that the --proposed timeframes place aa: unnecessary burden on the owner or operator without a gain in protection of human health and the environment. Although, the Agency does not agree with the commenters that the 14 day :timeframe places a burden on owners and operators, the Agency has decided that 5 Cates should have the -flexibility to Set their• own tune frame for notification. Therefore, today's rule requires a 14 day .period, for self -i npleriientatiou _ Purposes, or an alternative period designated by the Director of an - approved States. In addition, because of the need to provide for a self - implementing approach to today's final rule, owners and -operators are required by § 258,54(c) (1) to also place,a notice - " in the facility's operating record within 14 days of finding a statistically significant increase over background for one or more of the constituents listed in appendix I. Again the Director of an . - approved State may elect to, modify this time frame. 9. Seotion 258.55 Assessment MonitarirW The proposed rule required initiation of Phase 11 sampling and analysis if the owner or operator determined that the ground water exhibited significant ' increases (or decrease in the case of pHJ - over background levels for two or more of parameters (1) through (15) or one or more of parameters (16) through (24) or the Appendix I VOCs. The purpose of this second phase of groundwater monitoring was to determine the nature and extent of the release to ground water, Triggering Phase 1f monitoring . did not necessarily indicate a threat to human health and the environment. - Rather, entering Phase 11 monitoring signaled the, need to analyze for a more extensive list of ground-water'analyses and to determine if any of these constituents have exceeded health - based trigger levels. Proposed § 258.55(c) required owners ,. and operators in phase 11 monitoring to. sample all wells and analyze those samples for all constituents identified in appendix II to determine which constituents were present at levels .statistically significant above - background concentrations, This activity was to be completed within 90 days of triggering Phase ii* monitoring or an alternate time period approved by the State, if the owner or operator determined that none of the Appendix 11 constituents exceeded°background at statistically significant levels, pursuant to § 258.54(d), the State was to I. - determine the appropriate frequency for repeated sampling and analysis of all appendix.II constituents. Section . 258.55(e) of the proposed rule allowed the owner or operator to return to Phase I monitoring if no constituents were detected above background levels during a specified'time period. The State was to determine an appropriate period of time to require "the owner or operator to remain in Phase I1monitoring, based on consideration of specified factors,. before allowing""a,return.to'Phase 1. If any appendix 1I constituents Were detected at.s.tatistically significant " levels over background in either the initial or repeated testing, the owner or operator was to notify the State within 14 days and within 90 days, and quarterly thereafter; sample and analyze for those cons tituents present above background; The State also was required under proposed § 258.55(d] to specify an appropriate frequency for a full appendix I1 analysis -to determine if _any additional constituents had entered the ground water at concentrations that exceed background at statistically significant levels. Proposed § 258,55(g) required the owner or operator to notify the State and submit a report on the . concentration of any additional appendix II constituents detected above background levels within, 14 days.. If any of the appendix II constituents , were detected at a statistically significant level above the groundwater trigger level established under proposed § 258.52; the owner or operator was to notify the State, assess corrective measures required under § 258.56, and continue Phase 11 monitoring. Before assessing potential corrective measures, the owner or operator could demonstrate, under § 258.55(h) (4), that a source other than the landfill was causing the contamination or that the Increase resulted Earn sampling or analytical error. 'The Agency received several cornments in favor of eliminating phase II monitoring (now assessment monitoring) and requiring the owner or operator to implement corrective action _ once statistically significant increases of the Phase I monitoring parameters occurred. These comtnenters believe that Phase II monitoring will not result in increased environmental protection and will delay remedial activities. They believe that the elimination of Pbase'II monitoring will lead to more rapid implementation of corrective action. The Agency believes that the owner or operator must determine what contaminants have entered the ground water and understand the extent of the Plume to develop an efficient and effective corrective acaonprogram. The purpose of ass,essmentmonitoring (Phase 11 rnionitoiing) is to evaluate, rather than detect, oontaminatian. The Agency believes.that this second phase of monitoring is essential for evaluating the nature "and extent of contamination and bas retained ifin'today'd final -rule, The proposed'rule' did not require_the OWer or operator -to `continue Phase I monitoHng after triggering Phase II . monitodng�requirdments, In the preamble to the proposed rule, the Agency noted that States may require an owner or operator to continue occasional monitoring or particular Phase I monitoring parameters during Phase II monitoring, Particularly if that State has established correcffve action requirements that involve those 'parameters. Two commenters objected• to the lack of continuedr oonitoring and requested the Agency to require Phase I monitoring to continue after Phase"II - monitoring has been triggered. Because of the need to provide for a self- . . implementing approach to today's final rule, the Agency agrees that it is necessary to require continued . semiannual monitoring for the appendix• I constituents during assessment monitoring (or an alternative frequency, no less" than annual, set by the Director of an approved State) and has amended § 258.55(d)(2) accordingly. Similarly, § 258.56(b) requires the owner or .operator to continuemonitoring for appendix I constituents along with the appendix 11 constituents during the evaluation of corrective measures. The Agency received numerous comments on § 258.55 of the proposed rule. The majority of the comments received were on the list of constituents in appendix H. Other commenters addressed the, following areas,. Different phases of. monitoring, full appendik ii, analyses, return to Phase I monitoring, background determination for appendix II constituents, monitoring frequency; and notification of contamination, to name a few. These comments, along with Agency responses, are discussed more fully iii the following sections. This section also addresses comments on the 51080 Federal Register / Vol. 56, No. 190 / Wednesday, October 9, 1991 / Rules and Regulations determination of the ground -water protection standard originally proposed In J 258.57. a. List of Constituents The Agency proposed a list of appendix II constituents that were known to pose a risk to human health and the environment and that could potentially migrate to ground water. The proposed constituents were similar to those used in compliance monitoring at hazardous waste disposal facilities under subtitle C of RCRA (40 CFR part 245 appendix M. Appendix II, as proposed, Included almost all of the appendix 1X constituents; plus additional constituents that are not Included on appendix IX (e.g., Superfund Indicators). Several of the constituents that are listed in appendix IX, also proposed in appendix IL are suspected to have analytical problems and the Agency Is considering their removal from the appendix IX ground -water monitoring list. The proposed appendix 11 list was chosen because any of the proposed constituents could be present in the wide variety of wastes disposed at MSWLF's and could be present in ground water beneath facilities at levels threatening to human health and the environment. The Agency reques ted comment on the proposed list of 248 appendix II constituents. In general, the commenters thought the list was excessive with only one commenter supporting the list of constituents. Several commenters suggested. that the appendix II parameters instead be selected by the State based on site- specific factors such as operational history of the site, the type of waste accepted and previous analytical data on leachate samples. However, as discussed in the proposed rule, this approach is unworkable for sites with no leachate collection system (including the majority of existing landfills). Additionally, it does not account for degradation processes occurring during constituent migration through the unsaturated zone and ground water. It would require periodic resampling of th leachate to account for the wide variations in leachate composition over time. The Agency also believes that it may be difficult to determine the types of wastes that may have been historically disposed in many MSWLFs However in response to these comment requesting a site-specific list, the Agency is allowing approved States, in Q 258.5gb), to modify the list of constituents in appendix lI if it can be determined that a constituent is not reasonably expected to be in. or derive from, the waste contained in the unit. Approved State modification of the assessment monitoring parameter list may occur only in rare instances. These circumstances are discussed earlier in this preamble with regard to modification of the detection monitoring list of parameters (§ z58.54(a)), Under these circumstances, an approved State may conclude that some of the appendix lI constituents are not appropriate for ground=water monitoring at that MSWLF. A number of commenters requested that the Agency develop a new list of. monitoring constituents consisting of compounds that have beeri identified in MSWLF leachate, This option had been considered for the proposed rule, bat was rejected because of limitations of the MSWLF database. As explained in the proposed rule. EPA's current data on 59 landfills identifies 11z compounds that have been found inMSWLF leachate. In most cases, the list of constituents analyzed for at a particular landfill was unknown, so these data may not indicate the full range of constituents that maybe found in MSV�ILF leachate. Further, many of these compounds present analytical problems or require specialized analytical methods making them inappropriate for routine analysis. For these reasons, a list of compounds limited to those found inMSWLF leachate was not proposed and has not been incorporated into today's final rule. In response to the criticisms of the commenters, however, the Agency did reevaluate the list of appendix II constituents. The Agency considered two options for revising appendix Ilt (1) Finalizing appendix 11 as proposed; and (2) making specific additions and deletions from proposed appendix ll. The first option considered was finalizing appendix 11 as originally proposed. This would have resulted in a list of 248 compounds. The Agency chose not to finalize proposed appendix 11, however, based on consideration of commenters' objections. In particular, commenters remarked that the list e contained a number of compounds which either could riot be measured using existing technology or presented analytical problems. Several . commenters also objected to the naturally occurring compounds on the list such as calcium, magnesium, and s sodium. • In response to numerous comments the proposed constituents,'the Agency has revised appendix H. As discussed below, the Agency evaluated specific additions to and deletions from d proposed appendix II and adopted assessment monitoring constituents similar to those presently listed in appendix ix of 40 CFR part ?64. Appendix 11 is not identical to appendix IX due to expected proposed revisions to appendix IX. The most up-to-date information concerning analytical methods, degradation products, hydrolysis products, and chemical properties (i.e., adsorption to soil) was used to develop appendix 11, and also will be used to propose consistent revisions to appendix IX. For several reasons, EPA believes that it is appropriate for constituents on appendix II to generally be consistent with the constituents required for compliance monitoring under subtitle C of RCRA. First, hazardous wastes were routinely disposed of in municipal solid waste landfills before. the amendments to RGRA were promulgated in 1980 (45 FR 33154; May 19, 1980). Second, municipal solid waste landfills may receive hazardous waste from small quantity generators (SQG) and household hazardous waste (HHW). Multiple SQG's and multiple sources of HEW may colleotively result in substantial quantities of hazardous wastes at m,9V9 s. Further, MSWLF's may not have adequate engineerisig controls (e.g., either a natural or synthetic liner and a leachate collection system), to prevent hazardous wastes from contaminating ground water. For these reasons, the Agency believes it is appropriate to provide for consistency in selecting ground -water monitoring analyses for both solid. waste and hazardous waste disposal facilities. The specific additions to and deletions from proposed appendix Il were based on, (1) The feasibility of determining compounds of concern in ground water by standard screening methods, and (2) comparison with the ground -water monitoring list for hazardous waste facilities. Appendix 11 as finalized consists of 214 constituents. Fourteen constituents are added to proposed appendix II by today's final rule. Nine of these constituents currently are required for compliance monitoring for hazardous waste facilities, The remaining constituents have been. added to appendix II because they have either been detected at high concentrations in ground water samples collected from RCRA subtitle D facilities or because they are likely to exist in the variety of wastes managed at M5WIFs and are of . nn concern in the protection of human health and the environment. The constituents added to today's final appendix 11 will not necessarily add to the analytical costs of ground -water monitoring; however, because the additions are amenable by the same Federal .Register / 'Sol. o• 196.1 Wednesday, ,Qctdber 9, 1991 A1 Rules and RQgulatinny scon methods.capable=o£comp3eting,the final appendixZ.analysis. The after consideration of the practicable. constatuents added-by.today:s final.r1a, are:presentaddn capabilities of•owners and operators, and the fact that'these contamiriants Tablei-Specific . reasons for each, f�the addifions.are are rarely found in ground water, EPA, . oes not;;believegt is,rieoessar - con{lined:in.the'.baakgrcund,ilacument" for today's final rti1P routinely require the owner or aperator'ta analyze 'Thirty-nine constitueo.ts,on,proposed aPpe1XdiX,1Lhave.been,deleted,by ground-water.saraples for:these compounds as part..of -for.tthe.ass.>~ssment today's final,rule. nit fiat of:ddle'ted constituents`ls,presented.in.Table,2. monitorfngTrogram: Although today's final rule, does, not;require munitoringlor Several T;ommeaters.suggested,that these compound%, States aro trot precluded fxom.reguiring.analyses;for several mrktaIs,an appendix;H cotild!he found naturally.anground -,water, and these compounds,on q site-�pecafic basis. However,-the-unchlorinated therefore„should not.be usedAf dibenzofuranihas been.retained on assessmeritinomtoring.-7heA.gency agrees vith.the commenters. Although appendixli,;becauseitis.amendable'by Method -8270 v+hichls.a suggested ea those metals are usedlw.the Agency as Superfunci.artdicatar:coin_p ds,:routine method for:analyzing.othug >rndix.il testing.during assessment:monitorh,, at all NV §W- s'.is.not appropriate constituentsduring,assesstnent monitoring, -11is because they are not loxI at:the,levels:faund TheAgencynotes that appendix likely to change over time naturallyan ground -water. Another metal "[fluoride) isloundnatr9rellp as modifluations aro made`an'analytical as an inorganic Ion, same,reason, Several ido menters-.also methods for detecting contamalytica Today's final. appendix:Ilis,based,upoa suggested.Shat=a,numberof°`the.proposed appendix3l.canstituenis:[e currently avallable analytical tecllnologyaad,.consiiieratlan;af.ihe benzeneiiiol..oxfrane, benzenethiol, practicable.cgpability..of owners and hexadlilorophenq),arenot,easlly detectedlay,cut•rent.analytical.imathuds. operaters,of MSWLFB. Wath the developioent.andsrandardization of -The Agency reviewed eppend.bM and deleted',twenV-nine new technologies- and _methods, appendix II-will,Iakaly,need,futu e constituents becausepT;serious stabilityAr analytical revisions.,EPA'believes.that:the`list of limitations',bystandard-SW446 methods. $peclficxeasons'for�eadh constituents presan' ted;ln appendix;ii.of today's; final rtile.mee.ts.fhe-overall the of f}>a objective of -assessmentmonitchng,-fhat graons.aragivenan backrnunil ziocumerit for.today's final Tule. The 0-ency:is.similar]y:assessina is, to ensuremonitoring whiEh.evaivates the nature.o£axelease from a:MS.L!VLiv to the a ra rieteness.of all appendiX'IX PP p b constituents'based• rt consideration. ground waters Concurrent with:the addition -and df the information used'in'the develapmerit of a]?pendix�I. deletion of certain compaunds, other changes to appendix.II.have been.made CTle,commenter.exrn pressed•conee about.ahe monitoringreguiiements to eliminate-confusion.Theproposed appendix Awes a.lphabeticall}r ordered fox dibenzofttran. Tlte,common name for, dibenzdfuran'in by systematic:nause.ZPA dedldi&to order the -list byralp6betic.coihmort the proposed rule'listed various .polY-chlorinated dibenzofurans as well as the unclilor'inatecl name,.in�keeping with thelorm used1n other Agencylists, Aa, requested l?y dibenzoiuren.AfterTurthermdevv.of evaildble-ground-water-information, several nommetiters,'€he.Agency:also:is Including.sornesuggestei3meffiLas.frQm the Agency..ddleted'the;polychIorinatea dibenzofurans.as wdll:as 2;3;7;8- Test, Methods ifnr,EvaluaLing Solid Waste, Thirii:Edition [5514 - ,)annd tetraahlorn3lbeazo-p-di the polyciiiorinatecl ilibenzo-p- estimates of a.mefhocl-spedific;PQLfor each,constituent Additionally,'technical mans) from $ppendix'TI'hecause'they'have been.analyzed'for and';have corrections to a number of name spellings.have been made and several' notbeen detedtad in ground -water samples cdllecied'fior,a RCRA (nudicLpal Aroclars are.nowlisted under Polydilorinate&b?plzenyls. and _, hazardauswastaJaEidi;EFiCIA-facilltzes because of their-strong;adsorpfaon'to Finan , e Lada s��� 4gency'believea;Jhat soil and their law:sdliibility,Secause,of their s-trong.ailsorptiantasoil, Il constituen'ts'is essentig'forprnvic g a check on'theperTormance of•fhe ' they also , have rareiy'been tit tecteiiin•surface .. k landitll,dasigl.and operatton.Vhaer today's rule' nwne $ 51081 [see, 258.40,).As•discussadcearlier.in this preamble,'EPA.limited this performance standard to constituents with•EPPi approved etandards,(i.e., NfOLs-) -to,provide-an•approach-that could.be�ef7fectiv4�implemented considering lhe.technical.capabilities: of the regulated community. EpA.•believes it is, appropriate 10 specify a comgrehenslve°list of coa►poimas -for assessment.monitoringfor'tvvo rEasons. First. -such a-cbmprehensive%st will provide a "back-up” check'forlandfill design;p erforr iance;[i-e,,Imei'.and leachate collectionsystem re91iirements),°Second,1he owner,or opera tor is required"to rotitindly evaluateFonly,those-4ppendix j constituents .that:are •detected.ln. the ground water, theiebyximiting impacts on the owner.or operator, TKBLE :i •,--; A17t#TiaNS-TO APPENDIX:11 �Cvmm7=M StRti� Ep2n-RCdhohalsrotryS[ioltaeennlhec.syd..[l3€.a_._{etm.at_t»tiae„y.n__..e.. ...�._................_-:„.- „»..�...•-._.__..-:,...-�..- ::--....._„_,.,..... .,..:_; .2303-,16-4 m•CM01; Zmathy Daf€ateB5S8�92301388�--30513a7s18'94= -��t:_._».._°.cis-1,2-Drchtoroah156-so-,z ih-1,3-Dc TABLE '2.-'DELEtTONS FROM APRENDIX.11 Common name Acyl alcohol......:.... Arum€num...»„...-.�...................:.........� Aniline ......_ » » .:. »......: Benzorc.acid_» p-Senzog4rnane....»..-. _... _..:.,_..� Calcium........ �..........:_.::.� » 2-Chloroethyl vrnyl'ether_ _ « , 3-Chl4ropropioriihire »; D€benzoTa,e7Ryrene DibenzoFurans 'ttdtra-, Penta-, and wa er- fictultionalLy, fhese_compauntls a r> n ; og eendoram Fluorlda.:' � requireR special.anat . ical-GC MS ppraveh'States°mq deet their l- fexachlorophena,,.._�_ - landVljn accoraance:t�viih a `- 'method°aramatleally increasing tho•cost,° performance standarii based"an a more - of ass essment.monj.tgring Titesdfoce,..:1 _ .limited set of c Magner€um - tPnurlds lt.e;,Af�I3 Malarigrsitril9-- % a r'GAS '744043=99 ,140475-8 542-76-7 ..189-55-9 I92 -X5-4 189-64=0 . T23 -s1-1 7"T9 -&o=4 . T22-09=8 :1225 7 :75-218 ts9s4-4e-a- 7o-ao-;s - , �ar3s=s9=g 74399-=584 rTd39-96,5 .. 142428-92,2-Dtchon rope:'180Ml€done; py chloride . 594-207t1-D1rhlorapapena... .... ............ Dimethoate„ Ethyl methanasuitnnate_._..•»'. 10S -s" o-Totu€dine... 95=53=4 O,O,OLTriethyl'lahosPharothioate,». „....: 126-.668 `1 sym-Tdnitrabenzene__.„ ? .99-.35-,4 TABLE '2.-'DELEtTONS FROM APRENDIX.11 Common name Acyl alcohol......:.... Arum€num...»„...-.�...................:.........� Aniline ......_ » » .:. »......: Benzorc.acid_» p-Senzog4rnane....»..-. _... _..:.,_..� Calcium........ �..........:_.::.� » 2-Chloroethyl vrnyl'ether_ _ « , 3-Chl4ropropioriihire »; D€benzoTa,e7Ryrene DibenzoFurans 'ttdtra-, Penta-, and wa er- fictultionalLy, fhese_compauntls a r> n ; og eendoram Fluorlda.:' � requireR special.anat . ical-GC MS ppraveh'States°mq deet their l- fexachlorophena,,.._�_ - landVljn accoraance:t�viih a `- 'method°aramatleally increasing tho•cost,° performance standarii based"an a more - of ass essment.monj.tgring Titesdfoce,..:1 _ .limited set of c Magner€um - tPnurlds lt.e;,Af�I3 Malarigrsitril9-- % a r'GAS '744043=99 ,140475-8 542-76-7 ..189-55-9 I92 -X5-4 189-64=0 . T23 -s1-1 7"T9 -&o=4 . T22-09=8 :1225 7 :75-218 ts9s4-4e-a- 7o-ao-;s - , �ar3s=s9=g 74399-=584 rTd39-96,5 .. 514$2 Federal Register J Vol. 58, No. 198 j Wednesday, October s, 1991 j Rules and Regulations TAaLF_ 2.—DELETIONS FRom APPENDIX 11•—Continued common name I GAS RN 4,4'-M0 ftI0nabis(2•ch!.0eniline) ....... 10 t-14-4 N•Nlttasorna+Phc;km »..»....................»» . 59-80-2 Qsmktm ....................» ._._.....- ..... 7440-04-2 Pantachtoroethano. _-...... ».,........ 109-06-8 744o-09-7 2•Propyri-1-d; Fmpargyl skahol .,....... 107-19-7 Pyrk%mIto-8614 » » F1030fCkMA, _ :. �. :_: 108-464 .................».. 7440-23-5 1746-01-6 Tatrrolhy4 ( iUuopyrophosphate; Sulfd- Thlopbvw; 80raonethtol.._.......... ... 106-98-5 Trlchlorommhanathlot » ........... ............... 75-70-7 Tt1s(2,3-d;bromopr0pyI) Phosphate........ . 126-72-7 b. Different Phases of Monitoring appropriate subset of wells to be sampled and analyzed during assessment monitoring. This means that some wells would advance to assessment monitoring while all would, remain in detection monitoring. However, during corrective action, the owner or operator is required to comply with the ground -water protection standard at all points within the plume of contamination that lie beyond the Wound water monitoring well system. (§ 258.58(e)). This will very likely necessitate that all wells be incorporated into the corrective action program. In consort with the self= implementing nature of today's rule, owners and operators of MS V"s in unapproved States must sample and analyze all wells during assessment monitoring. The proposed rule required that once one well triggered Phase 11 monitoring, all wells monitoring the unit were to be sampled and the ground water analyzed for the appendix Il constituents. In the preamble to the proposed rule, the Agency requested comment on whether different wells at the same unit or facility should be allowed to be in different phases of monitoring. In -other words, some wells would be in Phase I monitoring while other wells would be In Phase 11 monitoring. in the preamble to the proposed rule the Agency stated that this option could be appropriate in situations where the unit was very large and only a few monitoring wells had triggered the next phase of monitoring, however, once corrective action had been triggered in one well, all of the ground -water surrounding the particular waste management unit would be subject to corrective action provisions. Several commenters supported the Idea of allowing different wells to be In different phases of monitoring given the complexity of the movement of leachate, attenuation, dispersion, and ground water movement. The Agency agrees that, in situations where larger MSWLFs are surrounded by a great number of wells, and the hydrogeology of the area is well known, It may be practical and cost-effective to sample and analyze a subset of wells for both the complete list of appendix lI constituents and for the appendix II constituents detected as a result of the complete analysis. The Agency believes that States with approved programs should have the flexibility to make the determination regarding the specific wells to be included in assessment monitoring. Therefore, § 258.5(b) and § 258.55(d)(2) of today's final rule affords the Director of an approved State the flexibility to specify an c. Appendix II Analysts The prop ased rule, § 258.55(e), required the owner or operator to sample and analyze ground -water for the constituents listed in appendix II within 90 days of triggering Phase II monitoring or an alternate time period approved by the State. If appendix li constituents were not detected, § 258.55(d) required the State to determine an appropriate frequency for repeated sampling and analysis for appendix II constituents during the active life, closure, and past -closure care of the unit. In setting the appropriate frequency, the State was to consider: (1) Lithology of the aquifer an unsaturated zone; (2) hydraulic conductivity of the aquifer and unsaturated zone; (3) aquifer flow velocities; (4) minimum distance of travel; and (5) nature of any constituent detected. The purpose of this provision was to determine if any additional constituents entered the ground water over time. The ¢gency proposed to allow States to set the frequency for repeated full appendix II analyses because the Agency believed that site- specific conditions will have a significant impact on the release of any new constituents to ground water from MSWLF. A number of commenters objected to the requirement for repeated appendix analyses, stating that it would be burdensome for MSWLF owners and operators to repeatedly analyze for ov 200 constituents, Other commenters argued that the amount of data generated by repeated sampling would be burdensome for States to 'review. Another commenter felt that EPA shall set a maximum limit on the number of scans that could be required within a given period of time while two commenters suggested that the full - appendix II list be analyzed annually. As stated in the preamble to the proposed rule, the Agency believes that periodic analyses for all appendix II parameters are essential to ensure detection of ground -water contamination and for use in determining whether the design of an ongoing corrective action program must be changed to accommodate the treatment -or removal of additional constituents. The Agency also believes - it is necessary to include a specific requirement for repeated, complete appendix II analyses because of the need to provide for a self -implementing approach to today's final rule. 'Therefore, the Agency is continuing to' require repeated appendix U analyses, as modified below (see § 258.55(c)(2)). in determining an appropriate frequency for repeated full appendix II analysis, the Agency considered the similarities in the ground -water monitoring programs for MSWLFs and hazardous waste facilities. Because owners and operators of hazardous waste facilities are required to conduct yearly analyses for a comprehensive list of constituents (similar to appendix 11) during compliance monitoring (which is similar to assessment monitoring] to determine the presence of additional constituents, the Agency also set an annual monitoring frequency for repeated full appendix Il analyses for .MSWLF units conducting assessment d monitoring. This minimum frequency will serve to ensure protection of human health and the environment from ground -water contamination resulting from MSWLFs. This requirement is s found in § 258.55(b) of today's final rule. More frequent analysis is still required for detected t:onstituents as discussed below, To address commenters' concerns regarding the burdensome nature of this requirement, the Agency is providing approved States with the flexibility to reduce the frequency of the repeated full appendix 11 analyses (see § Z58.55(b)). a An approved State is required to consider the following factors in assessing the appropriate monitoring lI frequency for repeated full appendix II analyses: (1) I.ithology of the aquifer and unsaturated zone; (2) hydraulic er conductivity of the aquifer and unsaturated zone; (3) aquifer flow velocities; (4) minimum distance between upgradierit edge of unit and downgradient monitoring well screen ld (minimum distance of travel); (5) resource value of the aquifer and (6) nature of any constituents detected. These are the same factors identified for a'canszderation4nthe,pro-posedrule for determining an'alternate frequency for'the repeated:fuil, appendix;Ii analysis. The;proposed,rtile, also required, ownerscand operators:-to.noti y:and submit,a,report to,the State,witliin14 days of;identifying appendix.Ii . cons tituents-that:hadmot1pen4dentified through previous monitoring. This has not changed;in4ciday's final rule..Section 258,55(d)(x) requires that within,14 days of detecting appendix II constituents through the initial or.subsequent sampling everits'in pssessment monitoring the owner and operator -II) Place a notice:in:the operating record identifying the detected uppendix:II constituents and'(2):no€ify"the'State Director thdrthis notice'has been placed, The Diredtor Qf an'approved 8tateprogram ma y.modify this`time period. d. Detectian dfAppendix_II Cons Constituents hr,Ground,Water Federal :Rggister• /Edi. dt3, tI�€o. ; s� , j Wednesday, Qetdber ,9, agi -,,/.,'R and ,Regu'1at1Djja S' St to If any appendix�-U constituents were detected at•statlsticallys agnificant levels,above baakground,'i§'258:55(f)-of the proposed rtile required-the-owizex�ur operator, to"(z)Wdtffyrihe'State witliin 14 days,-or.an alternative•pefioa approved by the`State;-and-(2)•within 80 da-ys,'ana quarterly iherediter,-conduct analyses'ior those appendix -H constituents'thdt^were,present atlevels above background.`The State -was . allowed to-determine'the appropriate monitoring frequencyrquring the post- closure•period�upon uonsicieration oh' (1) Lithologyof the:agtiifer and unsaturated zone;: [Vhydratilic conductivity of .the aquifer anis unsaturated zone; (3) agtiffer flaw.veIacity;�(4):miriirntun-dis tanee� of trayeI; and (5) themature�rif=the•detedted constituents. One commenter remarked,that to determine:statistically significant - increases of aPpendixll.cons tituerits over background would�equire a 'background determination for :all:of the conatituents hster n—'appendixil ;which would be,beyondaheTracticable . capabilityrofznost.MSi/.tiTI Owners and operators. TheAgency.reeveluated:.this requirementmnd.egrees•:that.it,w-oidd - require extensive sar4PIin,a, and•anal.ysis to determine'ba-d cground,concentrations :for all of'the.appendixli.nolmMuentsin order to_detercnizze�ff a,ntatiatically significant incr:ease-over;backgraunci . hadcoccuFxad. Theeefore,:§ 258;.551d)(2l. , ._ .of today'sfinaLrula.,requires•�xwxiez<y:aad operators toeeantinue:setniantival monitorfngaril3rdor #hnaernnstituenta _.- -�e�utr cu,accampt6te �.pendixell analy is. r1�n-stidltiort,ttoila e:=4tle approved State to specifyA:monitoring frequenc-y,:other-than semiannually.,.!,for those constituents.thdt are,detected`in ground water •as a,result 0PA-Complete appendix II: analysis. This-Rexibiilty is discussed laterda this:section. So -that owners and,operatorsmzay,deterniine whether appertdixiI const€tuents.have exceeded the•ground - ater..pra.tection standard at.statisticaliy:signifrcarit levels, §•258.55(4)(3) ofloday'slffnal:xule also requires the a,;tmer or operator, to establisEbackground concentrations only for:appendix.Ii:constituezits that have been detecied.in ground -water. The Agency does not -mean to suggest, however, -that nwners:aud -opera tors should 'delay sampling df=hackground wells duiffig'tbe-fzrstfassessmt nt monitoring -sampling event until constitoents'hava'been detected',in downgradient wells: The owner anti operator sholild:simiiltaneously.ebllect ground-water•samples frotn'both-the baclWound.aad downgra:d1ent wells and send.bdth sets 'of satnples`to"the laboratorywith'instructions'to first analyze downgradient wells -for appendix 11 eons tituenfa-and•.to-delay analysis v£�ihe bac'kground;grouni water-samples-untilghe.results of the downgradierit group water:analysis.are available.=EPA`encoursges owners -and operdtcrs'to-deitermiine the concentrations of. a' cionstitueht-inthe samples-thrnttghthettse of-one-pointin- tizffe'eomparisons between:background arid.downgradient-welis: This -approach will°help ,reduce `the components of seasonal variation' by providing -for simultaneous comparisons between . background -well and downgradient:well monitoring-tiata,'FbrAM!tiozral discussion of this approach, see the preamble discussion3n'53-FRM720 (October.11,1'884) concerriing.the determination tifbaekgrvund concentrations and.their relaftonshipto statistical analysis of.ground=water monitoring-daia.and.atltCRA.facilities.' Regardless of the sampling delay, Flee Agency wishes. to- emlihasize that, § 258.53,requires-each owneror operator to, maintainzsampling and analysis program docume'atation-1hat,includes procedures and techniques-,designed;to ensureaecurate,representation of �grouud�ter quality.After the•detected aPpendix U-.constituents�re.:identiffed, the ownexrongperator-must�aiz:alyzedhe background,genund water. samples dor. -those constituerita and i"tablish . bagkgrorind.'The_Ageztcyrbelieves this procedure-w111;he ,within!the:eroamnic ostrs'�tiv4',t�;<awuers�.anzl - I-C .-,•...... the proposedrrule required the owner, -or operator to ccaduat:quarterlyAnalyses for those gppendiX,3l-.constituents. Section 258.55(f)(3) of:thetproposed-tile did, howcvert:provide: tine �tate•.the flexibility to date in an:appropriate minimum:monitoring, frequenuy!foe liha detected.appendixM- constituentsduring. the post -closure period, -considering"the following list of factors: _( lUthology.of the aquifer and unsaturated zone:'(?) hydraulic con3uctivity. c f'the ggtiifsr flow velod1tY;13) mi'ziiimu' m;distance; of travel (i.e.,�MSVVLF uriit-edge-to downgradient °wells); •and;(4) the na ture of the detected-oozxstituents: - - In.general, most coin .neuters stated that quarterly:monitoring=is'ekcessive and not needed zn-a1l-situatinns -and recommendsd!that-the'frequency-be determined on;a •case' -by -case_ -basis. After careful review' VNhese -comments the Agency -agrees that•the,'reguirement for'quazterlyTnuriitoring iruring,the active life and closure may.net'be necessary 1i -some :circurnstances, For „ - example, the Agenc believes "that quarterly assessmedt,mor itoring.wo4d. not be cost=effecti:vcTor owners,and operators of.MSWL s located,in areas with low ground-water'flow,velodities. The Agency.b.6heves.that,=based on.the spedifxcs df the`MSWLFsIte, hates shouldhave:fhe'flexibilityfo determine an appropriate, recfuencylorvrepeated sampling and,analysismot.ozil-y during the post-rlosiare period,'but:the active life (including i~losure) as .well. _this flexibility also.aa&ess.es:thepracticalili capabiliti.es,of,cwriers.and gperatois.by allowing less 1han,quarteily, analysis in situations whereat ismot.ibsalutely necessary. It shotild`be:noted.that today'srule,does not preclude States from,requiring more, reguent--m9 iltoring if it is warranted. Thierafore,-§:258.55(d)(2),.of today!s final rule providesflezibilitylor,the Director of an,approved•State to:spedify a monitoring frequency, -,other than semiannually,!fnr;those nonsfituentsthat are detected�in�.ground water:as<a-lestilt of a complete app.endix.li,analyais during the active dife,lasure,:and post closure .care:periad. "The Director-dfian. approved State is required to consider the satn.e factors -that wereiisted:in�he,. proposed3ule:for'setfin$;an�lterriative - - frequency,,dudug'thi ;pgst ciDsu;e , . peri�rii.:T'liese-same.fantDrs-are,used�o determine an:alternative:frequengyjfor .. . the fall appendix:Il analjrsisjsae Beoause 6ftthesal£�implamea;ting y . approach #o tptia�t"s final til, :the Ag@u4' i . allot ng brtllr tspPraq, t1 States tv.de'teiniiaa arl=a7Fte�ti�ftive Moi .frequencyor Clic. det eCtet 51084 Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 199-1 / Rules and Reo laiionz, appendix It constituents during the active life, closure and post -closure care period. Owners and operators of landfills located in States without approved programs are required to continue semiannual monitoring for detected appendix 11 constituents throughout the active life, closure, and post -closure care period. e. Return to Detection Monitoring constituent). In addition, by specifying a specific time period, the Agency is providing for the self -implementing structure of today's rule, Therefore, § 258.55(e) of today's rule allows an owner or operator to return to detection monitoring if the concentrations of all appendix 11 constituents are at or below background, using the statistical procedures in § 256.53(g) for two, consecutive sampling events. Under the proposed rule, if the owner The Agency believes that this or operator determined that there had approach balances protection of human not been a statistically significant health and the environment with the Increase in any appendix II constituents practicable capabilities of owners and over background, after conducting operators..It considers the practicable monitoring for a State approved period- capability of the owner or operator by of time, § 258.55(e) of the proposed rule not requiring repeated analysis of the . allowed the unit to return to Phase I ground water for the complete list of monitoring. (A statistically significant appendix It constituents, which may increase over background was the yield the same negative results. It is trigger for requiring quarterly monitoring protective of human health and the for that constituent.) In determining an environment, as is required by . appropriate period of time for appendix § 258.53(c) of the rule, because the 11 monitoring before allowing return to owner or operator is still required to detection monitoring, the State was to continue to monitor the ground -water consider the following four factors: (1) and respond to statistically significant Lithology of the aquifer and unsaturated changes in ground water quality. Once a zone; (2) hydraulic conductivity of the unit has returned to detection aquifer and unsaturated zone; (3) monitoring, the owner or operator will ground -water flow rates;'and (4) be required to establish an assessment minimum distance of travel, monitoring program if subsequent In general, commenters supported the monitoring indicates a statistically proposed provision allowing an owner significant increase of any appendix I or operator to return to the previous constituent over background levels. This phase of monitoring. Therefore, the will, once again, require the owner or Agency has retained this concept in operator to sample all monitoring wells, § is a). but has modified it by or in approved States, an appropriate add [ng a minimum time period during subset of monitoring wells. The ground which monitoring must be conducted water samples collected must then be before allowing a unit to return to analyzed for al.l of the constituents listed detection monitoring. This will make it in appendix U. consistent with the self -implementing For the purpose of clarification, approach In today's rule. today's rule also includes a new In the preamble to the proposed rule § 258.55(f). This addition simply states the Agency requested comments on the that if the concentration of any appropriateness of a minimum timeappendix II constituents are above period during which monitoring must be background, but all concentrations are conducted before allowing a unit to below the ground -water protection revert to the previous phase of standard, the owner or operator must monitoring. Two commenters suggested continue assessment monitoring, specific monitoring periods; two monitoring intervals and three consecutive quarterly analyses. The majority of commenters requested that this minimum time period remain site- specific. The Agency agrees with the commentees suggestion of a minimum of two monitoring intervals without detection of appendix II constituents is necessary before a facility may return to detection monitoring. The Agency believes that this requirement for two consecutive sampling events will reduce the probability of false negatives (false negatives occur when monitoring fails to detect contamination or an increase in a concentration of a hazardous f. Plume Characterization the problem that may exist at a facility prior to the initiation of corrective measures, The commenter stated that if the site-specific hydrogeologic and ground -water quality characteristics are not understood, attempts to remediate the facility may fail. The Agency agrees that a thorough understanding of the contamination and the hydrogeology of the site is essential to creating a corrective action program. Therefore, this concept has been retained in today's final rule. Section 258.55(g)(1)(1) of today s final rule requires the owner or operator_ to characterize the rtature and extent of the release, once the ground -Nater protection standard has. been exceeded, by installing additional wells, as necessary. Circumstances that may require additional monitoring include: (1) Facilities that have not determined the horizontal and vertical extent of the contaminant plume; (2) locations with heterogeneous or transient ground -water flow regimes; and (3) mounding , associated with MSWLF units. In these situations, an owner or operator may be required to install additional wells. However, because the requirements for additional monitoring are site the Agency is not able to set requirements for cases where additional monitoring is required nor the number of additional wells that musk be installed. The Agency maintains that .characterization of the release is critical in. designing and implementing . corrective action programs if ground- water remediation is necessary. The purpose of these additional wells is to delineate the contaminant plume boundary and to eventually demonstrate the effectiveness of corrective action in meeting the ground -water protection standard. Additional wells installed for this purpose are not subject to the assessment monitoring requirements for Appendix II analyses. In the subtitle C program for hazardous waste facilities, the Regional Administratorhas the authority.to require the installation of additional, monitoring wells to characterize ground water, Due to the decision to provide a self -implementing approach to today's final rule and in response to the comment that EPA should require a thorough definition of any ground -we ter contamination problem prior to mandating corrective action, the Agency has also added the requirement that the owner or operator install at least one additional well at the facility boundary in the direction of contaminant migration (§ 259.55(g)(1)(ii]]. This well. must be sample d -semiannually, or an alternative frequency determined by the Under the proposed rule, § 258.56(b), the State could require an owner or operator to conduct additional monitoring in order to characterize the nature and extent of the plume. This provision implied that characterization of the plume may require the installation of several additional monitoring wells. The Agency's rationale for this provision was that the distribution of contaminants must be delineated to properly define the extent of the area to be addressed by the corrective action program. . One conunenter remarked that EPA should require a thorough definition of Federal Register /. Vol. 56, No. 196, / Wednesday, October 9, 1991 /Rules and Regulations 5111115 Director of an approved State, and the ground water samples analyzed for. the Appendix II constituents that have been detected in the wells located at the unit or alternative boundary. The Agency added the specific requirement of a well at the facility boundary so that the owner or operator will be able to determine when contaminants have migrated past the facility boundary so that affected persons who own or reside cn land overlying the plume may be notified. It should be noted that although § 258.55(d)(2) allows the Director of an approved State to determine an appropriate subset of wells to be sampled and analyzed for the detected Appendix II constituents, the'Director of an approved State must always include this one additional well in the sampling and analysis program, The Agency recognizes that it maybe difficult in cortain circumstances to characterize the nature and extent of the Plumes that have moved off-site. In limited cases, the owner.or operator may have difficulty obtaining permission from adjacent land owners to install additional wells on their property. Nevertheless, the Agency expects owners and operators to make every effort to fully characterize the nature and extent of thecontamihation. Section 258.58(a)(3) of the proposed rule required the owner or operator to notify all persons who own or resideori land that directly overlies any part of the plume of contamination. This notification was to be sent if any Appendix II constituents were detected at a statistically significant level above the ground -water protection standard. Several. commenters addressed the notification requirement that was proposed, Two issues were raised by cbmmenters: The scope of any notice and the timing of the notice. Commenters suggested expanding the scope of those receiving notice of contamination beyond that required in the proposed rule. 'These commenters argued that this notice should not be limited to land owners and local residents who own or reside on land that overlies a contaminated plume, but also should include owners of mineral rights and owners of permits to applicable surface and ground water, as well as to local officials such as fire, health, school and transportation officials. . The Agency agrees that it is important for those persons whose uses of the ground water maybe affected, including those who own or reside on land overlying the plume and those whose drinking water may be affected, to be made aware of potential risks. However, the Agency believes it would be difficult for a MSWLF owner or operator to identify and notify all persons whose uses of ground water could be affected. Therefore, the Agency is retaining the proposed requirement that the owner or operator notify individuals owning or residing on land overlying the plume of contamination (see § The Agency does, however, agree with the commenter who suggested that the MSWLF owner or operator be required to notify local authorities of ground -water contamination resulting from a release from the MSWLF. The Agency has, therefore, broadened the scope of the proposed notification to include appropriate local government agencies or officials, as i; ell as persons owning or residing on land overlying the plume of contamination. Section 258,55(g) of today's final rule requires that notification be sent to local government officials or agencies once it has been determined .that constituents have been detected at statistically significant levels above the ground- water protection standard. The Agency, understands that in the case of MSWLFs 'that are owned or operated by local .governments, the additional reporting requirement in today's final rule will .mean that one Iocal government agency or official may be notifying another - agency or official of the same municipality. The Agency still feels the expanded notification requirement is necessary to ensure that all appropriate government officials and agencies are notified: - It also was suggested by commenters that the timing and method of notification be specified in more detail ',than in the proposed rule. Tliese , commenters felt that the notification should be required immediately upon detection of contamination, and that the language and structure of the proposed rule does not adequately indicate this. At the request of the commenters, the Agency evaluated the timing of the required notice, and consequently changed the timing of the notice from the proposed rule. The Agency agrees that itis important to quickly notify individuals.of potential ground -water contamination. Today's final rule requires the.' owner or operator to notify owners or residents of land overlying the plume of contamination if sampling of the well located,at the facility . boundary, (required by § indicates that contaminants have migrated off site. However, the earliest ,an owner or operator of a MSWLF that is contaminating ground water can notify residents of land overlying a plume is when the nature and extent of contamination has beenidentified. Nevertheless, MSWLF owners and Operators can quickly notify local government officials well before the plume is fully characterized. Therefore, as discussed above, today's rule requires the owner or operator to notify appropriate local government officials within 14 days of finding a statistically significant increase over the ground- water protection standard. 'These officials can then work with the owner or operator in determining if certain others should be notified prior to plume characterization. Note that § 258,50(g) provides flexibility for.the Director of an approved State to alter this time for notification. In summary, if any appendix 11 constituent is, detected at a statistically significant level :above the ground -water protection standard, § 258'.55L-) requires the owner or operator to: (1) Notify the, State and local government officials and place a notice in the operating record ` within 14 days or within another 'timeframe specified by the Director of an approved State; (2) characterize the nature and extent of the release, which may require'thi installation of additional monitoring wells, (9) install at least one monitoring well at the facility boundary in the direction of " contaminant migration;'(4) iiotify all persons who own or reside on land " overlying the pirime.if contaminants have migrated offsite: In addition, the owner or operator is given the . opportunity through § 7tsma(g) (2) to demonstrate that a source other than the MSV" caused the'contamiilation or ' that the statistically significant increase resulted from an error-' sariipling, analysis, or evaluation: This demonstration must be certified by a qualified ground -water scientist or approved by the Direction of an approved State and placed in the facility's operating record. g. Ground -Water Protection Standard The proposed rule required States to set ground-water.protection standards (GWPn.S), wheselecting a remedy, for each appendix U constituent detected above trigger levels,' The GWPS was to represent the constituent concentrations that remedies were to achieve. The proposed rule established the State's primary consideration when setting the GVVPS to be to ensure protection of human health and the.environulent, The proposed rule allowed the State to use Promulgated health -based standards, such as Maximum Contaminant Levels (MCLs), Where they are available. In cases where promulgated standards are not available, the proposed rule allowed the State to set a GWPS for carcinogens 51086 Federal Register / Val. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations that would achieve a level of protection to the final rule, EPA also considered the decision to for self- the appropriateness of the 1X10,4 to iX10- risk range for carcinogens. Feud within a risk range of IX1.o-4 1 X10 -T. The proposed rule allowed the provide implementation. Under this approach, comments were received specifically State to take site-specific exposure' considerations into account when owners and operators are able to implement the final rule without addressing the proposed risk range. , Some commenters were concerned that establishing the GWPS and to take into interaction with the State. the range was not protective of human health the environment, while other account the reliability of the remedy Schen establishing the standard. If the In order to respond to public comments, as well as incorporate the and commenters agreed that this range was MSWU owner or operator could, demonstrate to the State that a detected Agency's self -implementing approach, today's final provisions regarding the appropriate and protective. One commenter objected to the risk range contaminant was already present in the ground -water protection standard. proposed by the Agency because it implied that States could not choose ground water, then the State was not to set the GWPS above the background require the ground -water protection standard to be either the MCI; or more protective goals. In addition t7 level unless the State determined that clean up below the background level background, except in approved States which may set alternative Ievels, While these specific comments, the Agency received many comments that argued was necessary to protect human health and the environment and the clean up the Agencyprefers to use site-specific health based standards and the use of that the proposed rule in general was too stringent 'and burdensome. was in connection with an area -wide remedial action under other authorities. background concentrations may be overly conservative in some cases, this As mentioned above, in today's final rule the Agency is allowing approved The majority of the commenters, including several States, argued that the approach was necessary to -incorporate the self -implementing approach in States to s'at an alternative ground - water prptection standard, for States should not bear the responsibility today's of astabiisbing the level to which. ground rule, Specifically, today's final rule requires carcinogens, within a risk range of 1X10-4 to 1xio-0. The Agency water should be cleaned. The commenters argued that the States do the MSWLF owner or operator, rather than the State, to set the G'v+VPS at the recommends that -States use 1XIT as the point of departure for establishing . not have the financial or technical resources to undertake this task and MCL or background for all appendix it constituents detected at a level above the GWPS. This starting point is generally consistent with historical that the lack of a federal standard background, GWPS must be set at the for Agency practices. However, a variety of site-specific factors (e.g., the would result in inconsistent standards nationally. Many commenters MGL for all appendix II constituents which there is a promulgated level under practical, reliability of exposure data and the contended that federal standards should be established to ease the rule's burden section 1.412 of the Safe Drinking Water Act. if there is no MCL promulgated for weight of scientific evidence) may require that the.standard deviate from an States and to allow States to devote a detected constituent, then the GWPS this risk level. These site-specific factors into the determination of State resources to making decisions an appropriate remedies. Some commenters must be set at background. in cases where the background level is higher will enter where within thexisk range the GYNPS argued against allowing States to establish GWPS on a sate -by -site basis than the promulgated MCL for a constituent, the GWPS is to be set at the should be established, The risks to an individual should not exceed 1X10 . due to concerns that the State would take cast considerations (that would not background level. Today's rulealso allows appro, red Because this alternative. GWPS can only be set by approved States, and must be ensure protection of human health and States to establish an alternative GWPS, consistent with EPA giddelines for 'assessing health risks, the Agency the environment) into account when setting the standard. EPA also received for constituents without an MCL, that is an appropriate health -based level based believes that this approach is protective comments supporting and rejecting the upon specific criteria. Any alternative in of human health and the environment. Although today's final rule sets a risk use of MGLs as the GWPS. One State commented that all GWPS should be set GWPS must be set at a level derived a manner consistent. with Agency range of 1 X10 -s to 1X10 -e, States are at background levels or below the MCL, One commenter suggested that EPA guidelines for assessing the health risks of environmental pollutants and must be not precluded from setting a more stringent standard. There maybe, other abandon the use of MCLs in setting the based on scientifically valid studies site-specific exposure factors that may indicate the to establish a risk GWPS because in the commenters opinion, they are overly conservative conducted in accordance with the Toxic Substances Control Act Good. need level for a particular contaminant that is -6. and nonhealth related. The Agency agrees that in many cases Laboratory Practice Standards or other equivalent standards. In the case of more protective than 1 X 10 -These. site-specific exposure factors may States have limited resources available to establish clean-up standards for a setting an alternative GWPS for carcinogens, the alternative level must include: Human exposure from other pathways at the facility; population large number of compounds. EPA has partially addressed this concern by be associated with a risk level within the risk range specified by today's final sensitivities; potential impacts on environmental receptors; and cross - deleting the requirement for establishing trigger levels for all appendix II rule, as discussed below. in the case where an approved State decides to set media impacts. The criteria and site-specific constituents prior to the initiation of ground -water monitoring (§ 258.52), and an alternative GWPS for a toxic chemical that causes an effect other considerations for establishing alternative GWPS by approved States Instead, today's rule is requiring the than cancer or mutations, the alternative are essentially the same criteria and in the establishment of clean-up standards (i.e., ground -water protection standard) level must be equal to a concentration to considerations establisbed which the human population could be proposed rule, to be followed by all only for those compounds that have exposed on a daily basis without States when establishing the GWPS, to (as been detected in assessment monitoring appreciable risk of deleterious effects However, in response comment (see preamble discussion on § 258.54 In determining the approach for the during a lifetime. In the preamble to the proposed rule, mentioned above, Commenters were concerned States would consider cost ground -water protection standards in EPA specifically requested comment,on when setting the GWPS), today's final Federal rule does not allow the State to consider the "reliability, effectiveness, practicability, or other relevant factors . of the remedy" when, establishing art alternative GWPS. The Agency eliminated this consideration from the final rule for two reasons.. First, the GWPS in today's final rule is being used somewhat differently than in the proposed mile, which established both a trigger level (an environmentaI- or health -based goal) and a ground water protection standard (the actual clean-up standard set after consideration. of cost, technical feasibility, etc.). As discussed earlier in . this preamble, in response to comments EPA is eliminating "trigger levels" and is establishing a single standard, the GWPS, in today's final rule. As used in today's final rule, the GWPS is -similar to the proposed trigger level in that it is an environmental- or health -based standard that is used as the goal for clean-up. Used in this, context, it is inappropriate for remedy factors, including cost, to be considered in setting the GWPS, However, several opportunities for considering the costs and technical feasibility are provided in today's final Tule. For example, today's final rule allows the owner or operator to evaluate the costs of a remedy in assessing the corrective measures (§ 258.56(c) (3)) and to evaluate their practicable capability, including a consideration of the technical and economic capability in selecting'a remedy (§ 258.57(c) (4)). in addition, as described in this appendix (under § 258,58(b)), if the Owner or operator determines that the selected remedy cannot achieve the ' GWPS (i.e., due to technical infeasibility), the owner or operator can explore alternative remedies and receive a certification that no current technology can achieve the GWPS. The owner or operator, however, is always responsible for controlling exposures. . and the source of the contamination. h. Remediation to Below Background Levels As proposed, the GWPS would not be set below background levels unless the State determined that plean up below background levels was necessary to Protect human health and the environment and the clean up was connected with an area -wide remedial action under•other authorities. EPA received several comments frons parties that were concerned that the Agency would, under some circumstances, require MSWLF owners And operators to be responsible for remediation below background levels. Commenters argued that landfill owners No. 196 / Wednesday,, October .9,' 1991 / Rules and Regulations u1i313j and operators should not be responsible for contamination that may have occurred as a result of other activities or from releases at other facilities. They further remarked that requiring clean up below background levels in effect places the cost of remediation an landfill owners and operators who are not solely responsible for the contamination. EPA also received comments suggesting that MSWLF owners and Operators should be required to be responsible for remediation below background. Sonne commenters argued that landfill owners and operators were legally obligated to restore the aquifer to its original condition and that -the GWPS should be established to ensure this outcome, As discussed in the preamble to the proposed rule, the Agency believes that 'it may not be reasonable to require the owner or operator to reduce the -concentrations of hazardous constituents to below background . levels. Therefore, today's final rule retains this concept and requires the Owner or operator to clean up only to the backQ ound concentrations established for the MSWLF, The Agency recognizes that there may be circumstances where the ground water is contaminated by other sources upgradient, resulting in elevated background levels for the MSWLF. However, if the MSWLF is contributing to the existing contamination, today's final rule does not allow the owner or operator to ignore his contributions unless a determination is made by' an approved State under §'258.57(e) that remediation is not required. Moreover, today's final rule does not preclude States from requiring an owner or operator to clean up contamination below background levels where it is warranted. In today's final rule, EPA is requiring corrective action for ground -water releases. The legislative history accompanying section 4010 provides that a principal purpose of revising the part 257 criteria is the protection of ground and surface water and drinking water supplies. To that end, Congress directed the.Agency to study the adequacy of the current solid wasia disposal criteria in protecting human n health and the enviroment from ground -waiter contamination (section 4010(a)). Moreover, indirecting EPA to revise the existirig criteria, Congress provided that such criteria revisions include ground -water Monitoring as necessary to detect contamination and to allow for corrective action. In view of the existence of other regulations providing for controls of other types of releases to other environmental media, the Agency . .believes it is adequately protecting human health and the environment by limiting the "scope of the corrective action requirements in this rule to ground water releases. The Agency also intends to further study releases to soil and surface water by municipal solid waste landfills and make future revisions to the Criteria to require corrective action for these media. In -the meantime, today's final"rule includes several provisions to protect surface" waters. Specifically; today's final rule requires tun on/run off controls and requires that any discharge of pollutants from a MSWLF into waters -of the United States must comply with regulations developed under, the Clean _ Water Act.-Purtherma re, today's final rule includes location standards with.* respect to wetlands,and.floodplains. ' Congress also has provided authority for controlling releases toothermedia under a number of statutes. The Clean Water 4ot (CWA)' and Clean Air Act ' (CAA) can be used to address releases'. Into surface water and air. The Federal Water Pollution Control Act.can be used to address point and nonpoint releases to "waters of the United States" because it grants authorities for addressing' ' surface water releases. The CAA can be - used to address releases of some hazardous substances arid particulates to the air. While the CAA is not directed. specifically at the waste management industry, its authorities can be used to address releases to the air from waste . management facilities. -On May 90, 1991, EPA proposed New Source Performance Standards and Emission Guidelines for " MSWL Fs under the CAA to control emissions of non -methane organic compounds that contribute to ambient ozone problems and are a source of air toxics. A portion of the CAA program, the National Emission Standards far Hazardous Air Pollutants (NESHAPs) program has specified maximum emission levels for a number of particularly hazardous cons tftuents., Furthermore, the Federal CEi{CLA .. , program and other similar State - authorized clean-up programs can be used to address all media,. though these programs are generally not preventative or regulatory in nature, and thus these authorities are typically used when there are no responsible parties available to clean up landfills .that are no Ionger in operation. The following is a discussion of the corrective action,program. This section reviews the requirements to assess corrective measuies (§ 258.56)tto select a remedy [§ 258.571, and implement corrective"action (§ 258.58). '' M 51Q.g$ Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 f Rules and Regulations . 9. Section 2.53.5& Assessment of Corrective Measures Under the proposed rule, assessment of corrective measures would be required when any of the constituents listed in appendix H have been detected at statistically significant levels exceeding the ground water trigger levels. nse trigger levels wore to be health -based or environmental -based levels established by the State. The purpose of the assessment was to study potential corrective measures, The scope of the assessment was to be set by the State and the proposed rifle specified several activities that the State could inr;l ude in the study. These activities included: (1) Assessment of effectiveness of the remedy; (2) arx evaluation of the performance, reliability, ease of implementation and impacts associated with the potential remedy-, (3) timing of the potential remedy, (4) an estimation of costs; (5) Institutional requirements; and (6) an evaluation of the public acceptability of alternatives. The State could also require the owner or operator to evaluate one or more specific potential remedies because the State could have knowledge of successful technologies used at other landfills with similar contamination problems. The proposed rule required that the owner or operator submit a report to the State on the assessment so -that the State could choose which remedy should be implemented. The proposal also included a provision allowing the State to require the owner or operator to initlate interim corrective measures when necessary. Comments on the concept of ground- water trigger levels and the Phase I and I1 structure of the ground -water monitoring program were discussed earlier In this appendix. Other general comments on the proposed § 258.58 approach and the Agency's response are summarized in the following discussion. Several commenters identified a need for the assessment of the risk posed to human health and the environment by the release prior to proceeding with the corrective measures step. However, in attempting to simplify and streamline the corrective action program, the Agency did not incorporate the commenters' suggestions for a risk identification program: The Agency has allowed for an evaluation of the, potential threats presented by ground- water contamination prior to requiring corrective action. For example, § 258,55()) allows an approved State to conside. exposure threats to sensitive environmental receptors and other site- specific exposure of potential exposure to ground water when setting the ground -water -protection standard; which is the level the selected remedy must achieve. Additionally, the owner or operator is given the opportunity, by § 258.55(g) (2), to demonstrate that the contamination is resulting from a source other than the landfill. Furthermore, several risk factors are evaluated during the remedy selection phase, such as magnitude of reduction of existing risks and potential for exposure of humans and environmental receptors. Other commenters expressed support for the consideration of cost as a practical remedy assessment criteria (§ 25B.58(c)(4)). The Agency is finalizing . this criteria unmodifled as § 258.56{c)(3). The Agency believes that the practicable capability of the awner or operator, including the capability to finance and manage a corrective action program, is an appropriate consideration in selection of a remedy, and cost, therefore, is an appropriate consideration for assessing corrective measures. Several commenters expressed concern regarding the lack of deadlines to complete the required studies, arguing that the lack of deadlines would provide an opportunity for considerable delays before corrective measures are implemented. The Agency understands the commenters' concerns, but as previously mentioned, realizes that the extent of the corrective measure study must be commensurate with the complexity of the site. Recognizing the diversity of hydrogeologic characteristics and environmental problems, the Agency structured the corrective action program to provide flexibility in conducting the corrective measure study, while still requiring under § 25B.56(a) that the assessment be completed within a reasonable timeframe. States axe free to establish timeframes they deem appropriate. One commenter suggested that the regulations should contain a bias to suspend operations. The final rule does not specifically identify conditions that call for the suspension of operations (or dictate any other specific corrective measures). The Agency has attempted t construct corrective action provisions which are broad and flexible enough to address the diversity of facilities, regional and site-specific considerations, technological approaches to corrective action, and remedial challenges without limiting. remedial options or dictating pragmatically impossible solutions. Further, the Agency believes that automatic suspension of operations are generally unnecessary as a response to most releases and could cause serious disruptions in the solid waste management industry due to a reduction in disposal capacity, which is contrary to Congressional directives. While it will be appropriate under certain serious release scenarios to take significant and rapid remedial actions, the Agency believes that a bias for automatic closure of the MS_WLF` is unwarranted in most cases. Another commenter was concerned that, as proposed, § 258.58(c)(B) did not expressly require public participation in the evaluation of corrective measures or the remedy selection process. This provision required that the assessment of potential remedies include an evaluation of public acceptability. The Agency agrees with the commenter that the public should be actively involved in the evaluation of corrective measures. , The public, particularly in the vicinity of the facility, has a vested interest in the protection and remediation of the local environment. Therefore, § 258.56(d) of today's final rule requires the ower or operator to discuss poteritialsemedies at a public meeting prior to the selection of a remedy. This requirement is intended to promote active and effective communication between the interested public, the owner or operator, and where appropriate, the responsible State regulatory agency. As a result of the public comments discussed above and in previous sections of today's notice, the proposed approach to the assessment of corrective measures has been modified. Today's final rule requires the owner or operator to initiate assessment of corrective measures within 90 days of detecting any of the constituents listed in appendix 11 at statistically significant levels exceeding the ground water protection standards (§ 258.56(a)). The purpose of the assessment is to study potential corrective measures, Section 258.5B(a), as finalized, differs from the proposed approach in that it must be initiated when the ground -water protection standard is exceeded, rather than when the proposed ground -water trigger level is exceeded. The o replacement of the trigger levels with the ground -water protection standards has been discussed.P-arlier in this appendix. Section 25B.56(c), as proposed has been replaced with proposed § 258.56(c) (1). Theeffect of this change, reflecting the self -implementing approach of today's final Tule, is that the scope of the assessment is no longer set by the State. 'the removal of required State involvement has been discussed earlier in today's notice. However, the Agency Federal'Register J Vol. 56, Na. 196 / Wednesday, October 9, '1991 /.,Rules and Regulations 51069 anticipates that most States will . participate in the corrective action process and will play arole in setting the scope of..the assessment. As in the proposed rule, the final version of § 255.56(c) requires the vw.ner or operator to assess .the effectiveness of potential remedies in meeting the objectives of § 258.57 by addressing.at least: (1) Performance, reliability, .ease of implemientati:on, andpotential impacts; (2) the time requirements; (3) costs: and (4)insiitutionalrequirements. In evaluating the performance, reliability, ease of implementation, and Potential impacts of each remedy, the owner or operator should evaluate the appropriateness of specific remedial technologies to the problem being addressed and the abdity•.of those technologies to achieve -the, GWPS. Analysis of a remedy'$ reliability should include an assessment of the effectiveiiess .of the remedy in controlling the source of the -release and its long-term reliability. EPA -bell e-Ves that long-term reliability of remedies is essential in ensuring protection of human health and the environment. .: Construction and operation requirements:also should be evaluated. Finally, the owner or operator also should assess -whether the remedy:wili cause intermedia transfer of ' contaminants. The -second criteria, timing of potential remedies, should include an evaluation of construction, start-up, and . completion time.'q'iming is particularly Important if contamination has migrated off -sitar Cost is the third listed factor to be evaluated and may become important in the remedy selection process when evaluating alternative remedies that will achieve the same level of protection. EPAdoes-not believe, however, ;that cost should be a determinative factor in.assessing alternative remedies when they do not achieve the same level of protection. Finally, institutional requirements, such as local permit or public health requirements, may -affect implementation of the remedies evaluated and should.be.assessed.by the owner or operator. Section 258.56, -as finalized, rices not include proposed .§ 258.56(d] through J4 Theseproposed regulations would have provided States with the authority to direct owners .or operators to include certain remedies in the corrective measures assessment, requirgd owners and operators to submit the corrective measures Iassessment study and direct the State to select a remedy, and. allowed the State to require owners anti operators to perform interim corrective actions.'I'hese proposals "have "been deleted as part of the self irnplementing approach of the regulations finalized today. States may, however, adopt these types of requirements as pariof State regulatory programs. 9. Section 258.57 Selection of Remedy As proposed, § 258.57 outlined the general requirements forselection of remedies forMSWLFs.-As structured, it established four basic criteria . (§ 258.57(6)(1-4)) that allxemedieshad to meet. As proposed, thesecriteria would have required that';States choose remedies that: f1) Are protective of human Health and the envircnmant;.(2) attain the ground -water protection standard; (3) control .the source(s) -of releases so as to reduce ,or eliminate, to the maximum extent practicable, further releases of Appendix n constituents into the environment thatmaypose a threat to human health or the environment; and (4) com=ply with thespecified. standards for management of wastes: These criteria reflect the major technical components.of remedies: cleanup of releases, source coritml,and - management of wastes that are' generated by remedial ,activities. The proposed -rule also specified decision criteria J§ 258.57(c)(? --SD that . would be considered by the State in ' . .selecting the most appropriate remedy: (1) Long and short-term effectiveness, and degree,of certainty -orsuccess; {2] effectiveness -of remedy in controlling the source to reduce further releases; (3) ease or diMculty of implementation; (4) practicable 'Capability .of owner, or operator, including technical and economic capability; and [5) comm wjity concerns. Additionally, the proposed rule outlined eight factors for setting schedules'forinitiating and -completing remedies f § '258.57(dj(1-8)). These factors include: 11) Extent and nature of contamination; (2) practical capabilities of remedial technologies; (3) availability of treatment or'disposalcapacity for wastes to be managed as Dart of the remedy; (4) desirability of,utilizing emerging technalogies not yet widely available; 15) potential risks to human health and the envimnment;'{s) resource value of the aquifer, f7) practicable capability of the owner or operator; and (8) other relevant.factors. Proposed § 258.57.aiso included requirements for setting the ground- waterprotectionstandard [§ 258,57(e]), which, as discussed Earllor. has been finalized as. § 258.55(i) a4'd.(j).5ection 258,57ifj proposed threezemediation waiver options and § 258.57(g) provided States with the authority to require remediation ,despite a § 258-'57(f) demonstration.'Sectioii 258.57(h) Proposed specific iequirements for achieving compliance. . Public comments werexeceivad on various aspects.of theproposedrernedy selectionrexluirements: The scope of source nontrial (,§ 258.57(b)(3)); the practicable capability remedy selection factor (§ 258.57{c)f4));ihe proposed approach to implementation schedules (§ 258.57(x1)); the xamediation waiver proposed under § 268,57.(f); and the lack of public review Dr -comment provisions on the selected corrective action.remedy and schedule. Each nf'these areas are discussed further below— a. elow. a. Source Control The proposed rule, § 258.57ib), . required the State to select -a remedy meeting -lour standards. �Gne ofthese standards, § 258.57,{b)[3],-required_that remedies control •the source of the - release so es to reduce or.-eliminaie, to the maximum extent practicable, further releases of 6ppenddx.11 constituents into the environment. i]ne commenter expressed,concern that;§ 258,57{b)13] does not limit the concept of source control to exclude disirttermeiit and redisposal, despite preamble language identifying less disruptive typos of s•ourcecontrol. The -commenter believes that such a limitation,is necessary in light.of the Agencyand Con-gressional goal of.avaiding- dlsruption-of soli=d . . waste management operaiions. .While the Agency agrees with the commenter thattdisinterment and . redisposa) are not the jyrimarg forms ,of source control envisioned in thli -subparagraph,. there may be certain - extreme cases where,.duetathe - importance -of the :threatened aquifer or - frag-ility of the.underlyirng geotogy.(such as Karst terranes), the most effective and expedient#orin of source control may be -disinterment and redisposal. Thus, in keeping with the Agency's Zoal of providingflexllble and broad criteria, today's final rule does not limit the definition of source control to exclude any specific.types of remediation. b. Practicable capability When selecting axernedy,,§ 258.57(c) of the proposed ralexegnired the State to consider five factors. These factors Were meant to aid Elie State in evaluating the. data .generated as.aresult of the corrective measures study.'The Agency recognized that their relative importance in the clecisioninaking process would vary.from facility tv facility. The tirst.twofactors, Iting'and short term effectiveness .and reduction of future releases, are a.messure of whether human health and the 51090 Federal Register I Vol, 56, No. 196 j Wednesday, October 9, 1991 / Rules and Regulations environment will be protected while the remedy is being implemented and once It is completed. They also are a measure of whether the ground -water protection standard can be met. The third factor, implementability, is a measure of the variables affecting start-up of the remedy such as difficulty of construction, availability of equipment, and local permit requirements. The fourth factor, practicable capability, Includes both the economic and technical capability of the owner or operator. The fifth factor, community concerns, requires the owner or operator to consider possible public reaction to The potential remedy selected. One of these factors, § 258.57(e)(4), allowed the State to evaluate and consider the practicable capability of the owner or operator including a consideration of the technical and economic capability, Many comments were received on the ability of States to consider the practicable capability of MSW`LF owners and operators when selecting a corrective action remedy. Half of the commenters supported consideration of practicable capability when selecting a remedy while the remainder of the commenters argued that practicable capability was not relevant In selecting a remedy. Instead they argued that selection of a remedy should be based solely on protection of human health and the environment. The Agency believes that the practicable capabilities of the owner or operator to implement the corrective action program are vital to the overall success of the program. if the owner or operator cannot properly support and administer all phases of the corrective action program, the goals (protection of human health and the environment) may not be met, resulting in wasted expenditures of resources'and continued environmental degradation. Consideration of practicable capability allows for the selection of the achievable remedy or combination of remedies that can meet the overall goal of protection of human health and the environment. Therefore, §•258.57(c)(4) of today's final rule continues to allow for the consideration of the practicable capability of owners and operators when selecting a remedy. The Agency believes, however, that the evaluation factors provided by § H8.57(c), including practicable capability, are secondary to the standards of § 258.57(b) that require remedies to be protective of human health and the environment, attain the GWPS, control the source of the release, and comply with the § 258.58(d) alandards for waste management. The evaluation factors in § 258,57(c) are to be used in evaluating one or more remedies meeting the standards of § 258.58(b) as a means to select the appropriate remedy. Therefore, the use of these factors should not compromise protection of human health and the environment. One commenter argued that Congress did not intend that practicable capability be considered in the manner in which the Agency has incorporated it in the proposed rule. The commenter stated that the Congressional Record only referred to practicable capability in the context of how the criteria could be phased in. As discussed earlier in the preamble, the Agency believes that the legislative history undeelying the subtitle D statutory amendments supports the Agency's application of ,practicable capability:' The Agency believes that, as discussed above, the statutory language of section 4010(c) and its legislaflve history indicate that congress intended that the technical and economic capability of owners or operators need to be considered to avoid serious disruptions in the disposal of solid waste. The Agency also believes that the consideration of practicable capability in selecting the remedy is not meant to reduce the level of protection of human health and the environment. This is so because despite any secondary consideration given to practicable capability in selecting a remedy under § 258.57(c)(4), the remedy must always be protective of human health and the environment under § 258.57(b)(1), Section 258.57(c) of . today's final rule requires the owner or operator, rather than the State, to consider the five factors listed in the proposal when selecting a remedy. This change reflects the self -implementing approach of today's final rule. Of course, EPA expects many States, including all approved States, tobe involved in the . review and selection of remedies. c. Schedule for implementation The proposed rule required the owner or operator to assess corrective measures and the State to select a remedy when appendix 11 constituents had been detected at a statistically significant level exceeding the trigger level (§ § 258.56(a) and 258.57(a)). As part of the remedy selection process, the State had to specify a schedule for Initiating and completing remedial activities (§ 258,57(d)). The owner or operator would then implement the selected remedy when any appendix 11 constituents were detected at statistically significant levels above the ground -water protection standard (§ 258.58(a)). Because the trigger level has been eliminated by today's final rule, § 258.56 f a) and 258.571[a) require the owner or operator to assess corrective measures and select a remedy when appendix 11 constituents are detected at a statistically significant level above the ground -water protection standard. As part of the remedy selection process, the owner or operator is required by § 258.57(d) to specify a schedule for initiating and completing remedial activities. When setting this schedule, the owner or operator is required to consider eight factors. These factors are unchanged from the proposal. Today's final,rule requires the owner or operator to set the schedule because of the need to provide For a self -implementing approach to today's final rule. However, EPA expects that most States, under. State law, will establish schedules with the owner or operator for initiating and completing remedial activities. One cbmmenter stated that EPA should establish a time frame to prevent long administrative delays in implementing corrective action remedies. However, EPA is not setting a minimum -time period in which remedial activities must be initiated because'of . the widely varying circumstances at facilities that require corrective action. EPA is requiring instead that activities begin within a reasonable period of time. The Agency expects that many different specific factors will influence the timing of remedies: For example, there may be a delay in acquiring the level of technical expertise required.to implement a particular remedial ' technology. However, today's rule. does require an owner or operator to take interim measures necessary to ensure the protection of human health and the environment prior to implementing the selected remedy (§ 258.58(a)(3)). If the State is an approved State, the Director will be able to establish alternative procedures. d. Remediation Waiver in the proposed rule, under § 258.57(1). EPA identified three situations in which the State may decide not to require cleanup of hazardous constituents released to ground, water from a MSW .F. These situations were limited to cases where: (1) The ground water is contaminated by multiple sources and cleanup of the MSWU release would provide no significant reduction of risk. (2) the contaminated ground water is not a current or po tential source of drinking water and is not hydraulically connected, with waters to which hazardous constituents are migrating or are likely to migrate in a concentration Federal Register / , VOL 56, NO. 196 / Wednesday, October 9, 199'i / Rules and Rt gulation - 53fl�i, that would exceed the ground -water protection standards in today's rule; or (3) remediation is not technically feasible or resnilts in cross media impacts -lit any case, however, the State could impose source control requirements (e,g„ covers and/or flow control measures) to minimize or. eliminate further releases (see proposed § 258.57(g)). TheAgency did not attempt to define "significant reduction" in risk and requested comment on whether a specific dermition wasnecessary. A number of comments were received on these waivers, Some commenters strongly supported the inclusion of such waivers as means of ensuring that valuable resources are applied to corrective action measures in an appropriate and effective manner.. Other commenters strongly opposed the inclusion of waivers and a number -of commenters objected to § 258.57(ij{1) due to fhe lack of a definition of "significant reduction of risk". After considering all the comments supporting and rejecting_the waivers . provided by proposed § 258.57[1], the Agency decided to allow approved States to waive fhe cleanup requirements where the ground water is already contaminated. by multiple, sources and clean up of theNISWIP release would, in the approved Sta#e's opinion,,provide no significantFeduction of risk (§ 258.57(e)). The.Agency understands and,anticipates that approved States wilrhave difficulties in defining "significant reduction of risk" For this reason, EPA believes That approved States should take a conservative approaa when evaluating. the relevance of.such a waiver, The Agency does, however, anticipate that situations will arise where an approved State will detennine,that remediation of a release from aMSWLF cani}btbe justifned'based upon the presence of other sources of contamination or'based on other extenuating circumstances that will result in no significant decrease in the level of risk from the contamination. Other commenters were concerned that the proposed'§158.57(f)(2)(i-Iii) waivers did not account for issues .that would limit the ability of a .9 We lc predict changes In populations and future improvement in treatment technologies, and to determine hydraulic connections between aquifers. They requested that the Agency reevaluate the ability of States to issue remediation waivers under proposed§ 258.57(f). The Agency considered the .commenters' concerns but is continuing to allow approved States to determine that remediation of a release isnataegu red (now 1258.57(e)), ' EPA realizes that it is difficult to predict changes in populations (which determine whether ground water. -Is reasonably expected to a source of drinking water} and future improvements in treatment technologies, or determine hydraulic connection, However, the Agency believes, as discussed in the proposal, that certain circumstances may riot merit remediation and the States should have the latitude to grant waivers in such cases and avoid unnecessary and unproductive expenditures. FPA believes that such waivers are to be granted only after an owner or operator. meets the heavy burden of Establishing that ane or more or the criteria in 258.57(e) have been satisfied. States are not precluded from requiring owners and operators to undertake other measures (e.g., source control) once the determination has been made that remediation is not required {§ 258.57(#)). e. Public Participation One .commenter believes that the corrective action repgulattons should provide an opportunity for public review or comment -on the �selected remedy and Proposed schedule. This commenter argued that allowing public input during the assessment study is insufficient and that additional opportunities for public involvement should be provided. The Agency.agrees that public participation is important in the selection, of corrective action remedies because of the hfgh,potential for exposure to the population. As discussed earlier in the preamble, public participation requirements for approved States will be dealt with in a separate State program i1 lemalcing. In addition, with respect to today's final rule,, owners and operators of MS'WLFs are required to discuss potential remedies at a public meeting prion to selection of the remedy (§ 258.56(d)). 10. Section 2,58,58 Implementotlon of the Corrective Action Progrcn The proposed rule required the corrective action program to be implemented when any Appendix iI constituents were detected at statistically significant levels above the ground -water protection standard (proposed § 258.58(a)). To implement the corrective actionprogram, .the owner or operator had to comply with several requirements. First, the owner or operator had to establish and implement a corrective -action ground -water monitoring program, that, would demonstrate.botb'the effectiveness of the remedy and compliance with the GWPS. Second, the.owvner or operator had to implement -the remedy selected by the Sta!e.under.§ 258.57. Third, the owner or operator had to notify all persons who own or reside on the land that overlies any part of the plume of contamination, Finally, .at any time the State determined that actions were necessary to protect human health -or theenvironment, it could require the owner'or Operalar to conduct interim measures. The remedy would be considered winpleie-when the GWPS had been achieved and all other actions required in the remedy had been - completed (e.g,, source control measures). The owner or operator would be released Pram the -corrective action' requirements after'the State received a - certification from an independent engineer, geologist, ,or Other qualified person, and after the State determined that the remadywas complete. If the selected remedial technology was. not capable "of attaining the -cleanup standard after reasonable efforts had been made by the owner or operator, -.the proposal allowed the State to require the owner or operator to -evaluate and implenient -alternative technologies. The Agencyreceived several cornments addressing the implementatibnof the corrective actlon program. One commenter indicated that the proposed role, as implemented would be inconsistent with CERCI A's cleanup and liab'ilityproi isions. The commenter stated that the proposed rule does not provide for iheparticipation in' 'the investigation and cleanup by parties that might be liable under CERCLA. The_ commenter also indicated that the proposed rule does not allow owners or operators to challenge the assumption that contamination is from the landfill and not from the surrounding area. The commenter stated that 3heproposed rule effectively excludes MSWIYs from the CERCLA liability scheme and replaces it with present owner liability. Finally. the commenter asserted that under the . proposed xuile MSWLFs'may neves be Ifs ted on the NationalPrioritpUst(NFL). The Agency.disagrees'that the proposed rule is inconsistent with . CERCIA. Today's final rule under RCRA focuses on managing solid waste correctly during #lie operation of the facility rather than -relying on CERCLA to clean up these sites in the future. -The corrective action required under this rule is not CERCLA remedial action, and therefore -CERGLA standards do not apply. The Agency is well aware that where a cleanup proceeds wader CERGLA authority, potentially responsible parties (PRPs) normally parliclpatd in the remedial.process. 1lnder today's furcal rule, however, corrective actWix is required under. 51092 Federal Register 1 Vol. 56, No. 198 J Wednesday, October 9, 1.991 f Mules and Regulations RCRA authority, and therefore, potentially responsible parties under CERCLA are not involved In - impiemenling corrective action. The Agency also disagrees with the commenter's assertion that the proposed rule does not allow an owner or operator to demonstrate that contamination results from a source other than the landfill facility. Under § 2$8.54(d)(3) of the proposed rule and § 258.54(c)(3) of today's final rule, the owner or operator is allowed to make such a demonstration. Similarly, the Agency does not agree that today's final rule exempts municipal solid waste landfills from the CERCLA liability scheme. These landfills are subject to CERCLA requirements to the same extent as any other facility or site. The fact that corrective action may be required under RCRA does not preclude potentially responsible parties from being liable under CERCLA. If a MSWLF warrants a CERCLA response action, all those parties liable under CERCLA section 107(a) will be subject to that action. It is the Agency's intent, however, that the corrective action required under today's rule will result In a facility not being subject to CERCLAliability because a release is prevented or remediated. RCRA provides adequate authority to require corrective action for releases and the Agency believes that these corrective action requirements provide MSWLFs with the necessary Incentives to manage the waste correctly. Consistent with this, under today's rule, MSWLFs are not precluded from being listed on The NrPL if they warrant being so classified. Other commenters had concerns with the costs of corrective action. They Indicated that it is important that each landfill operator be able to demonstrate the ability, both fiscally and technically, to fund and implement all foreseeable corrective measures. It was suggested that some financial security should be required to ensure this capability. Commenters expressed the view that the proposed rule does not provide for any consideration of costs in the selection of the appropriate corrective action, and that It is not reasonable to Ignore the Issue of economic feasibility. The Agency agrees that it is important that owners or operators be able to demonstrate the financial ability to' Implement corrective action. This is why the proposed rule includes a financial assurance requirement in § 258.32, This assurance requires that landfill owners or operators who must undertake a corrective action program must establish financial assurance based on a recent estimate of the cost of the corrective action program. EPA has incorporated this financial assurance provision in today's final rule at § 258.73. The Agency does not agree with commenters that cost consideration is not provided for in the selection of appropriate corrective action. As discussed earlier in the preamble, provisions to today's final rule also address the technical capability of the owner or operator to implement a corrective action, program and provide for the consideration of costs in the selection ofaremedy, Public comments also were received on the requirements for interim measures, the period of compliance, and the alternative approach discussed in the preamble to the proposed rule. Each of these areas is discussed below. a. Interim Measures Section 258.58(a)(4) of the proposed rule required the owner or operator to take any interim measures deemed necessary by the State to ensure the protection of human health and the environment. In determining whether interim measures are necessary, the State was to consider seven factors including; (1) The time required to develop and implement the final remedy; (2) actual or potential exposure of nearby populations or environmental receptors to hazardous constituents; (3) actual or potential contamination of drinking water supplies or sensitive ecosystems; (4) further degradation of the ground water that may occur if remedial action is not initiated expeditiously; (5) weather conditions that may cause hazardous constituents to migrate or be released; (6) risks of fire or explosion, or potential for exposure to hazardous constituents as a result of an accident or failure of a container or handling system; and (7) other situations that may pose threats to human health and the environment. One commenter stated that proposed § 258.58(a)(4) is loo vague. The commenter stated that forcing a facility that is already perfornung corrective action to conduct interim measures may be a waste of time and money. The commenter also suggested that such interim measures should only be required where necessary to prevent an immediate threat or endangerment to human health or the environment. The Agency disagrees that the provision authorizing interim measures is vague. The discussion in the proposed rule adequately addresses the purpose and nature of these interim measures. As -noted in that discussion, such interim measures serve to mitigate actual threats and prevent potential threats from being realized while a Iong term, comprehensive response is being developed. Sections 258.58(x) (3) and (4) require any interim actions to be consistent, to the greatest extent practicable, with the objectives and performance of the remedy selected, and that several factors are specified that must be considered by the owner or operator in taking these measures. These both guide the owner or operator in formulating interim measures. Interim measures may encompass a broad range of actions. For example, an owner or operator responsible for contamination of a drinking water well may make available an alternative supply of drinking water to protect human health. This replacement action could be temporary or permanent. Other interim measures caninclude well relocation and treating contaminated ground water at the paint of use, For further guidance, the Agency refers r-eaders to the guidance document eat! tied RCRA § 3008(h) Corrective Action Interim Measures (June, 10, 1987; OSWER Directive 9902.4). Although the Agency has changed the rule language regarding interim measures, this change is. a xesult of the decision to provide for a self-. m impleenting approach to -today' s final . rule, Today'sfinal rule requires owners and operators to undertake these . measures, in lieu of States, but does not alter the standard for when such measures are required. Under today's final rule, interim measures are required when necessary to protect human health and the environment. b, Alternative Remedies In the preamble to the proposed rule, the Agency explained that, circumstances may arise which could render the chosen remedy technically impracticable. Proposed § 258.58(b) provided factors that the State should consider in making this determination. These factors included,. (1) The owner or operator's efforts to achieve compliance with the requirements; and (2) whether other currently available or new and innovative methods or techniques could practicably achieve compliance with the requirements for the remedy. The proposed rule allowed the State to require the owner or operator to implement alternate measures to control exposure of humans or the environment (proposed § 258.58(cl). States also were allowed to require the owner or operator to implement alternate measures for control of the sources of contamination. or for the removal or decontamination of equipment, units, devices, or structures . required to implement the remedy. The Agency stated in the preamble to the Federal Register / Vol. 56, No. 196 / Wednesday, October 9, 1991 f Rules and Regulations , 51093 proposed rule that the ground -water protection standard would not be changed. The Agency did not receive comments opposing this approach so it has been retained in today's final rule. Modifications have been made, however, to allow for self - implementation of the regulations. Specifically, § 258.58(b) of today's final, rule,allows an owner or operator to determine that compliance with requirements of § 258.57(b) are not being achieved through the selected remedy. This situation may arise, for example, when the unexpected occurrence of an area of unstable soils may make it in, to construct the selected remedy. If such a situation arises, the owner or operator must implement other methods or techniques that could practicably achieve compliance with the requirements for the remedy. If compliance with the remedy requirements of § 258.57(b) cannot be achieved by currently available methods, the owner or operator is required to implement other techniques or methods that can achieve compliance with the requirements. If currently. available techniques cannot practically achieve compliance, § 25a.5a(6) requires the owner or operator,to:,(1] Obtain the certification of a qualified ground -water scientist or the Approval of the Director of an approved State; (2) implement alternate measures to control exposure of humans or the environment to residual contamination, as'necessary to protect human health and the • environment; and (3) implement alternate measures for control of the sources of contamination, or for removal or decontamination of equipment, units, devices, or structures that are technically practicable and consistent with the overall objective of the remedy. Prior to implementing alternate measures, the owner or operator is required to notify the State and place a report in the facility's operating record Justifying the alternative measure, _ C. Period of Compliance The Agency g y proposed that the State specify in the remedy the requirements for achieving compliance with the ground -water protection standard (§ 258.57(h)), These requirements included: (1) The ground -water protection standard be achieved at all points within the plume of contamination that lie beyond the ground -water monitoring system; and (2) the time necessary for the owner or operator to demonstrate that concentrations of hazardous constituents have not exceeded the ground -water protection standard, In setting an appropriate length of time, the State was to consider: (1) The extent and concentration of releases; (2) behavior characteristics of the hazardous constituents in the ground water; (3) accuracy of monitoring or modeling techniques; and (4] characteristics of the ground water. In the preamble to the proposed rule, Lie Agency requested comment on the appropriateness of a minimum period of compliance as is required by the subtitle C program for hazardous waste facilities (i.e., three years). Only one commenter supported setting a minimum three year period of compliance as is required under the Subtitle C program; The" remaining commenters requested that the period of compliance remain site. specific. Because of the need .to provide for a self -implementing approach to today's final rule, the Agency believes it is necessary to set a minimum period of compliance. The Agency has chosen to set the minimum compliance period at three years. However, the Agency has decided to continue to allow approved States to establish an alternative compliance period based upon site- specific conditions. When establishing an alternative compliance period, an approved State must consider the following site-specific conditions under § 258.58(e): (1) The extent and the concentration of the release; (2) the' behavior characteristics of the hazardous constituents in the ground water; "(3) the accuracy of monitoring or modeling techniques, including any seasonal, meteorological, or other' environmental variabilities that may affect the accuracy; and (4) the characteristics of the groundwater. In summary, § 258.58(e) of today's final rule requires that the ground -water protection standard be achieved for a Period of three consecutive -years at all points within the plume of contamination that lie beyond the ground -water monitoring system unless an alternnative period of time is established by an approved State. Approved States may set an alternative period of compliance after taking site- specific conditions into consideration. In demonstrating compliance with the ground -water protection standard, the owner or operator is required to use the statistical procedures promulgated today in § 258.53. d. Alternative Approach In the proposal, the Agency outlined and requested comment on an alternative approach to the proposed corrective action program which would have established fewer specific federal requirements for cleanup. It involved the following steps: (1) Any concentration of hazardous constituents in the ground water above trigger levels would be reported to the State; (2) the nature and extent of the contamination would be investigated;'and'(3) all necessary actions to abate any immediate risks to human health and the environment would be taken. After'the owner or .operator submitted the results of the investigation, the State would assess, on a site-specific basis, the risks to human health and the environment posed by the ground -water contamination. Based on this assessment, the State would set site-specific requirements for clean up of the ground water (including clean up Ievels). Next, the owner or operator would be required to submit if plan for attaining the cleanup requirements to the State for approval. The'owner or operator would then implement the approved plan. Modification to the plan would be allowed based on site-specific considerations. Two commenters indicated that they support the alternative approach discussed above. One commenter asserted that this alternative approach would be equally protective and somewhat more cost effective than the proposed approach. After consideration of this alternative approach, the Agency has rejected it for two reasons. First, EPA believes the proposed approach is more protective of human health and the environment than the aIternatide approach because it more clearly defines the clean up levels and factors to be considered in evaluating and selecting appropriate remedies. Secorid, because of the site-specific risk evaluations required by -the alternative._ approach, the Agency believes that States could spend a substantial amount of time reviewing plans and risk assessments and setting site-specific clean up goals, which would result in significant expenditures of resources. Therefore, the Agency believes that today's final rule, which is self implementing, is more cost-effective than the alternative approach outlined above. As a result, today's final rule does not incorporate the alternative approach. Appendix G—Supplemental Information for Subpart F—Clost" and Post -Closure Care Because of the potential threats to human health and the environment posed by municipal soled waste landfills that are not adequately closed and maintained aftar'closure, the Agency specified minimum "standards: for closure and post -closure care in the proposed criteria. The proposed criteria included 53094 Federal Register .f Vol. 56, No. 7196 1 Wednesday, October 9, .1994 / Rules :arzd -Regulations a closure performancestandard, a cover design requirement,1herequirement to prepare closure and post-rlosure;pians, and closure andpost-closure care certification requirements, Following closure of each unit, the proposed criteria would require.owners or operators to conductpost-closure care comprised of two -phases. All owners -or operators were subject to a rninunum of 30 years of post -closure care (Phase I); following the 30 -year Phase Iprogram, owners or operators were .required.to continue those post -closure care activities deemed necessary by the State. The duration of this second period was also tobe.determinedhy the State. Under the proposal, the States would be given the authority to specify certain closure and poat,dusure.care requirements, such as deadlines and procedures for submitting and approving plans, and,certificafion procedures. The Agency received numerous comments on these proposed criteria. While commenters, generally favored the ,Agency's proposed requirements .for closure and post -closure plans .and the proposed approach of deferring to the States formanyvf the procedural requirements (e.g., deadlines for submitting plans, procedures for reviewing and approving plans), the Agency recelvad numerous comments on the closure performance standard. certification procedures, and the length cT the post-closure.care period. In response to these comments, today's final rule incorporates some cavfsions. to the closure andpost-closure.care criteria which are discussed below. Consistent with other sections of today's rule, the final closure and post -closure care criteria are self -implementing (see saction V1 of today's -preamble for discussion of this issue). Finally, the final rule includes a number of other clarifying changes that do not significantly alter the intent of the proposed criteria. For example,, the xlosura and post -closure care requirements proposed in subparts D and E have bean consolidated and moved to subpart F of the final Criteria and have been renumbered accordingly. 1. Section M.80(a) Closure Performance Standard Proposed § 258.30(a) would provide for a two-part health -based closure performance standard applicable to all municipal solid waste landfill units, which was designed to ensure the long- term ongterm protection of humanhealth and the envlronment. First, the proposal would require the owner or operator to close each unit of a municipal solid waste landfill (Le., each discrete.cell or trench) in a manner that minimized the need for further maintenance °after operations cease, Second, the proposal specified that closure activities -must minimize the formation and release of'leachate elid explosive gases to air, surface water and ground water after closuro 10 the extent necessary to protect human health and the environment. Owners or operators would be required to describe the methods and procedures. necessary to close .each unlit in accordance with'this performance standard in the olosure plan, "The proposal specified that the plan would be approved'by the Dtates.'The.Agency believed that this apprnach­would,allow States ,the flexibility'to.incorporate existing State closure regulations and to require more specific technical closure standards if they believed such standards were necessary. The Agency received nixed comments on the proposed closure performance standard. Marry commenters supported the flexibility in the proposed standard.because it would allow States to account for site-specific conditions in incorporating standards, on a case -by case basis, andwould allow owners or.operators to select the most cost-effective closure alternative. Other commentera,.however, expressed concern that the proposed closure performance standard was too vague to be enforceable and noted in particular the ambiguity of the phrases "minimize the formation and release of.leachate and explosive gases"..and "to the extent necessary. to protect human health and the environment." Others noted that the vagueness of the standard would not ensure that:a l,5tates would implement a program that affords an, acceptable minimum level of protection. 4t was also suggested .that:the 4osure criteria ' should be self -implementing, using the subtitle C interim status program as a model. The Agency agrees with commenters that the proposed closure performance standard was .too vague to ;be easily implemented by owners and -operators of MSVVLF's nr enforced by,States, by EPA in States found to have inadequate programs, or:through eitizen.suits, particularly.sincethe final rule utilizes a self-implemeati ng.approa ch. Wherefore, consistent with the approach inLtoday's rule of providing, for the self - implementation of the revised criteria, the Agency has decided to adopt a specific final cover design standard in lieu of a general dlosure performance standard. Also. consistent with the approadblaken under today's rule, the Agency is providing greater flexibility, In approved States, by allowing the use of an alternate cover design that Is equally as -protective is -the design specified in today's rule and Is approved by the Director of the approved State. This design standard Is discussed in greater detail'in the final cover section below. 2. Section 258.60 (a�.gnd (b) Final Cover Design a. Overview of Approach In additionto'the closure performance standard in 1258.30(a:b the Agency proposed specific final cover requirements in §-258-40 (b) and (c). As Proposed in § 256.40(b), new units sad lateral expansions would'be required'to be deaiguedwith'liners,'leachate colIectinn systems, and final covers, as necessary,'to meet a State -specified ground -water carcinogenic:risk'level with an excess lifetime.cancer risklevdl (due to continuous'iifetime exposure) within the 1.X10-4 to 17C -0^'r range. Under this proposed approach for new units and lateral expansions, St was envisioned that liners, leachate collection.systems, andfinal-covers would work together.as .a system in meeting the.State-specified risk level. The Elgencypraposed a separate final cover requirement; for exisfing.units in § 258,40fD) because EPA believed that the risk-based approach prpposed for new units and lateral:expansions was inappropriate for existing units for several reasons described in detail in the preamble,to the proposed rule (see 53 Flt 33351.), Therefore, the. proposal would have required existing units, to install a final cover .sys tem that prevented infiltration of Nuids through the cover and into the :waste. The Agency received mumerous comments :on .the proposed tisk-based final.coverstandards 'for new.units and lateral expansions. Most commenters opposed the;proposed risk-based approach for final.covers:€or many of the .same reasons they opposed this approach for liners and leadhate collection systems;(see appendixE of today's preamble), these commenters repommended•that the Agency promulgate a:minimum design'£or the final cover. Some contended that the Ask -based final cover�requirement proposed for new units and lateral expansions does not establish a minimum standard and is subjectto tae. inherent uncertainties of risk analysis and risk assessment models. Others .arg ted That m?nimum Standards are necessary to make -the closure requirements enforceable, and that a risk range does not ensure consistent .implementation among States and may resulHn some -facilities posing higher Federal Reimer f Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations SIM risks than others. Several commenters noted that the risk-based approach would be very expensive for owners or operators because of the data they would need to generate to demonstrate the adequacy of the final cover, and suggested specifying a minimum design standard to minimize the costs, Other commenters were concerned that the proposed final cover requirements could imply the need to install a Subtitle C type cover and argued that a final cover of five feet of clay would be too costly because of the added expense of trucking in additional clay„ These commenters suggested that a cover with a minimum of two feet of clay would be adequate to protect human health and the environment. Commenters also argued that the cost of complying with the proposed risk-based sfandard would force unscheduled closure. ofMSMWs. Many commenters also opposed the final cover requirements specified for existing MSWLF units. These commenters noted that the final cover standard proposed in § 258.40 for existing units specified that the final cover must prevent the infiltration of liquid, which is a more stringent standard than the language in the proposed performance standard in § 258.30, which would require that closure minimize the formatiao and release of leachate. These commenters strongly recommended that the Agency require that the closure standards minimize the formation and drelaase of leachate, contending that aprevention standard is overly stringent. The Agencyreceived a variety of suggestions for final cover designs. A few commenters recommended that the criteria should define a minimum infiltration rate for the final cover system, suggesting, for. example, a final . cover permeability whieli is equal to or less than the bottom liner spee%h ation in order to prevent a "bathtub eflect:'' These commenters also suggested that, incases where the exisfirig unit does not have a liner, the final cove system should have either a minim%atandard of six inches of clay with.a permeability level of 1 X 10-8 cm/sec, or a comparable 'Puncture resistant flexible membrane liner having the same standards as those established for bottom line systems, Other commenters suggestEK%varlety of other cover designs including the design described in the subtitle C guidance manual entitled "Technical Guidance Document: Final'Coversori," Hazardous Waste Landfills- - face Impoundments," July 1989, i A(530 - SW -89-047. The final cover design described in this document requires that final covers meet a number of Performance criteria including a permeability no greater than the, bottom liner, and other types of composite cover designs (e.g,; synthetic liners with clay and gas venting layers), Another commenter recommended that the Agency use the design in the subtitle C guidance as a model in developing cover requirements and allow variances to the uniform design only to owners or operators who can demonstrate that -less stringent closure standards will adequately protect human health and the environment, ' The Agency agrees with commenters Who recommended that some minimum final cover design standard is necessary to ensure that a baseline, acceptable final cover is'installed at all MSWLF units and to ensure enforceability of the requirements. In addition, as discussed in appendix D of today's preamble, EPA agrees that the proposed risk-based approach for facility design and closure would present significant implementation diMculties for owners or operators, Therefore, In response to these comments and consistent with the provision of self -implementing standards throughout today's rule, the Agency has replaced the proposed appra aches for new units, lateral expansions, and existing units with a single final cover requirement applicable to all MSWLF units, including new MSWLF units, lateral expansions, and existing MSWLF units. This requirement is set forth in § 258,eo(a) which specifies that all MSWLF units must have a final cover designed to minimize infiltration and erosion. Section 258.60(a) further specifies clear minimal design criteria for the infiltration and erosion layers, while § 258.60(b) specifies that the Director of an approved State may approve alternative final cover systems that meet certain criteria. Each of these elements of today's standard is discussed in more detail below. The Agency selected this approach to the final cover requirement for several reasons, First, the Agency believes that the specific infiltration and erosion layer requirements (discussed below) are the minimum necessary to be protective of human health and the environment: Second, today's approach is generally consistent with State programs, thus minimizing disruption of or inconsistencies with existing State programs, while providing protection of human health and the environment. Furthermore, EPA believes today's final approach effectively addresses marry of the concerns expressed by commenters. Specifically, today's approach provides a clear, enforceable standard that will ensure baseline protection to all MSWU units. These clear standards also will reduce the resources needed by owners and operators and States in implementing the final, cover requirements. In addition, today's approach incorporates flexibility by allowing the Director of an approved State to approve alternative final covers. b. Rationale for Specific Elements of Final Cover Standard As indicated above, today's final . cover requirements include -two elements: Infiltration layer and erosion layer criteria. § 258.60(a)(1) requires that the infiltration layer be comprised of a minimum of is inches'of earthen material that has a permeability less than or equal to the bottom liner or natural subsoils, The Agency included this permeability standard to prevent the "bathtub effect," mentioned by commenters, which would greatly increase the potential for the formation and migraticn'of.leachate. The Agency also shared the concerns expressed by commenters that this permeability standard linked to the bottom liner's . permeability would allow owners or operators of existing ms, w units with poor or nonexistent liner systems to install very permeable final covers. The the Agency also has included in today's rule the additional requirement that the cover have a permeability no greater than 1X20`5 cmf sec regardless of the permeability of the bottom liner. . The second element of today's final cover requirement is an erosion layer that must consist of a minimum of six inches of earthen material that is capable of sustaining native plant growth. Prevention of erosion is necessary to prevent degradation of the . cover brat would uItimately increase. . infiltration and formation of leachate, In selecting the components of the' Infiltration layer (i.e.,'18 inches of . earthen material with permeability no greater than 1X10"5 cm/sec) and the erosion layer (i.e., six inches of earthen material capable of sustaining native plant growth), EFA considered final cover designs suggestedby commenters as well as current State standards and experiences. As mentioned earlier, . while some commenters suggested final cover designs similar to those recommended for subtitle C facilitieq; others argued that a two foot final co ver would be protective for MSWLFs. In addition, over 40 States require at leas' two feet of final cover material for MSWLF's and many specifically require ini"iItration and erosion layers. Finally, while the final cover permeability 51098 Federal Register] Vol. 56, .No. 196,1 Wednesday, •October 9, 1991 / Rules and :Regulations standards vary by State, some States require a permeability of less than 1X10-acmlsec. After review of commenters suggestions:and current State approaches, EPA concluded thatloday's minimum infiltration and erosion layer requirements will be protective of human health and the environment, svbile at the same time be within the practicable capability of owners and operators of MSWLFs. EPA found that more stringent final covers, suchas those recommended for subU:I e C facilities, would be substaadallymore costly.than today's.final requirements. These higher costs would Maly contribute significantly to making Iod ay's rule beyond the practicable capability of MSVffY owners .or operators (see Regulatory Impact Analysis.results in:sectionitl.B of today's preamble). Finally, § 258.60(b) of today's rule allows the Director of an approved State to approve alternative final covers that Include infiltration and erosion layers that achieve equivalent performance as the minimum designs specified in § ?.Sam(a): The Agency included this provision to provide an opportunity to incorporate technology improvements and to address site-specific.conditions. Because the Agency believes these alternative -designs must be reviewed and approved by an approved State,:the opportunity for alternative designs will not be available for owners and operators of MSWIYa in.States withodt EPA,approved permitting programs. s Socdons258.so(c)-cm d258.61Cc), Closvra and.Post-Closure Care;P7ans a. General Contents of'Plans Sections 258.30(b) and258.31(c) of:the proposal would require all owners and operators afmunici_pal solid waste landfills to prepare written closure and posk-nlosureplans describing how the facilily would be nlosedin.accordance with the closure performancestandard, and maintainedafter.closme. The Virector of an approved State may specify alternative reoprdkeeping locations and alternative .schedules for recordkeeping and notification requirements for these plansor any anlytical data from -closure andpost- closure. The closure and post -closure plans would describe the activities requirod to meet the closure performance standard and the post - closure care requirements, -and -would provide a basis for establishing site- apecific cost estimates usedto determine the amount of financial assurance required. The Agency specified: in § 258.3o.(bj(1)-(5) the miriimum information that must be included in a closure plan. This information included: . a descriptionof1heme'thads, procedures, and processes necessary to close the landfill in accordance with the closure performance standard, in decontamination procedures•, an estimate of the maximum.extent of operation that wouldbe' open during the active life cf .the landfill;.an .estimate of the maximuminventory of wastes ever on-site over the landfill's life; a description of the final cover in accordance with the idesign criteria proposed in 3 258.4tl;.and a scheduleior completingall+oNhese activities. As proposed, the post-closure,plan would �have to,describe-the monitoring and maintananm activities to be conducted during the two-phase post- closuxecareperiod,.as well as the frequency with which these activities would:be performed.) dintenance activities consist mainly.ofroutine maintenance suchasmowing, fertilization, and erosion and rodent control. EPA also proposed that the po Bt -closure .plan,include the name, address, rand telephone.rnumber.of the Pers an or office to contact about the landfill during bdth phases .of,post- closure care,.sud a ;description: Df the Planned uses of the property aftar closure. Comments on the types of in€ormation and level of detail'in the plans were varied. Some cominenteis argued for more specificity in the: closure plan requirements, including=bmission of detailed engineering •plans. Commenters also suggested.thatplansbe}preparedb a professional engineer, and that -a certified operator be responsible for the site. In contrast, other,commenters contended that theproposedrule's requirements were too detailed and extensive acrd that EPA should allow for more fiexibility:in the content -of the pians in order to.accountfflr site- spegiflc considerations. Others suggested,that-decisions on the level of detail in the plans be.leftto the States. Upon consideration of these, comnienta, the Agency is finalizing the requirements applicable to the contents of closure and,post-closure careplansin § § 25axo(c) and 258;61(c) as proposed, with two -changes:di�scuased below in Section c. on decon'tamvnation and section d on estimates ;oi maximum extent of operation and maximum inventory. The Ageticy•continues to believe that the level of detail required in the plans represents the minimum level necessary to,eusure adequal.6, planning by the owner or operator, to provide.riDWIaTor.evaluatmg the adequacy of'these plans, and. to ensure the enforcea"bility.iof.closure requirements by citizen suits. The Agency disagrees that tlie;proposed requirements would restrict the flexibility of.owners .or operators in preparnng .the,plans .or.limit a State's discretion. in.e:valuating"the adequacy of these plans. The requirements -would require an owner or operator to provide extengiva detail about'fhe-types of activities .that will be undertaken- to meet the closur.e andpost-closure criteria; however, most..of the specific activities are;left up •to the owner or operator thus allowing,him to incorporatesite-specific cortaltions. Similarly, .States ivtth approved programs will have sufficient flexibility in evaluatin_ g the adequacy of these plans. The Agencyrecognizes,the concerns of commenters about the.need for specificity.inthe closure andpost-' closure plans,particularlysince these requirements will be self -implementing. The closure and past-closure,plans are critical documents.for:ansuring that owners or nperatoro of municipal:so"lid waste landfills bave,adequateIyplanned for the necessary.acti•vitiesto ensure that all units •are closed in a manner -that provides adequate protection of human health and the environment. Also, closure and post -closure :care plans provide the basis for-cost,eatimates ,that in turn establish the amount of financial responsibility that must -be demonstrated. Adequate. -plans therefore help to ,ensure that owners and operators demonstrate.adequate financial responsibility. Tjre Agency does;not agree with commenters ywholelfthat closure plans should be certified by aprofessional engineer. CEPA believes 1t will be relatively easy to verify that the plan meets the requirements because the closure performance standard has been replaced in today'o,rule :with a ,final cover deaign standard in 258:6019[) Providing veryapecific-directions to the owner or operator. Any variations from the final rover standards in § 258,60(a) must -be approved by1he1Hrector.nf an approved State. Therefore,,M believes an additional requirement that the plan be certifiedwould place an unnecessary burden on.ownars and operators. The A,gency,does •not Degree with commenters who ,syggeste d ;that facility operators should'be required&to;ba certified.'Tlie Agency believes that -the provisions Jn today's xtde, yvhich,include a�specific-closure design standard, ate sufficient topmure #hat.landfills am closed and maintained after closure Ilia Federal Register i Vol. 56, No. 1.98 f 'Wednesday, October 9, 1991 /Rules aznd Regtr'!at?bns 51{197 manner that veil] protect human health and the environment, thus -making any additional .cerfi£ication requirements unnecessary, In addition, the Agency did not receive suggestions about the kinds of additionaleertiilcations that would be appropriate for -opera -tors of municipal solid waste landfills. The absence of a Certification requirement for facility operators in the fi nalsrule, however, does not :preclude a'State from supplementing the federal criteria with additional closure andpost-closurepian requirements as deemedmecessaiy, b. Location of closure and Post -Closure Plans The proposed rule specified in §§:258.30(c) and 258.31f d) that the closure andpost-closure plans must be kept at the facility or at an alternate location desiguated by the owner or operator, To:be.consistent wiffiether recerdkeeping_provisions .of the final rule, §§ 258.60(d) and 258.61(d) ofthe final xulerequire the closure and post - closure plans to be included in the facility operating. -record. c. Decontamination of the F'aciliity The proposal would require Shat closure plans include a desciiytion of Procedures for decontaminating the landfill:(§ 258,301b)(1)).The proposal did not specify ,the scope of this requirement or particular -activities to be underlelcen. Many commenters noted that the requirement was ambiguous and . requested that 11be cTaxifiecl.'For example, one commenter noted ilial he assumed that decontamination applied -to the equipment, atructures, and soils contaminatedby'ltibricants or outer -similar materials. A number of commenters were uncertain about the differenceshetween decontamination activities and ,corrective action and noted that they could be inwmist�it. For example, -one commenter contended that planning for decontaminatian was not practical because suehplans'would need to be based on the -nature or the contaminatioa,'-,vhichwouid nothe known until the contamination awarred. Other eommenterswere coxncern4ihat the requirement implied that the.aastes from the landfill must be,removed at closure and that such measures were appropriate only if the landfill -posed an imminent public endangerment andno o ther Options were nvailable.Pinally, some commenters contendedt�iWhe requirement was confusing and recommended that itbe deleted altogether. - The Agency recognizes ilratthe , requirement that,the closure pian describe -aecontamination ]activities has caused confusion smorsg nomicienlera and that the ambiguity -of the requirement may -result in a misunderstanding of the fluency's intent, The Agency's real •concern in proposing this requirement was to ensure that hazardous waste -at the site would be managed adequately, upon reconsideration, the Agency determined that the concerns regardirig the receipt or management of any,hazardcus waste are adequately addressed in the facility operating standards (see § 258.20) and need not be included in the closure criteria. Therefore, the final rule sloes not require that a description of decontamination activities be =included in the closure plan. d. Estimates ofMaximum Extent of, - Operation and Maximum inventory The proposal would provide that the Closure plan include en estimate of the maximumextent of•ogeratiort that will be open at any time durigg the active life of the landfill and'the maximum inventory of wastes ever on site aver the active life of the landfill (§ 2s8.tgb) (2) and (3)). Several commenters expressed confusion concerning the defadtionaf maximum extent of operation and maximum inventory and questioned whether the proposed requirements - were necessary.Tor example, some commenters were concerned tha}-tine maximum extent of operation was equivalent'to the maximum design - capacity of the entire landfilland as.a result wouldnot accoa- iforpartial closures'undertaken aver the 'lire of the faciiity.•One cowmen_ terreconimended requiring the plan to address -the areal extent Of the facility'requiring Timm grading rather -than estimates of 7fhe "maximum extent of�gperation" and maximum inventory. In the preamble tothe proposed rsiteria, the Agency Explained that the estimates of the maximum extent of operation and'maximum inventory ever on site overthe active life of the facility are important because -they are used to estimate the cost of closure and the level of financial assurance that is required, The amount of -financial assurance -must accoant forthe mwdmum costs of ' closure to ensure that adequate funds are available even if closure -takes place' earlier than'expectod. The preamble further noted that the estimate of the•maximucn extent of operation of the landfill must account -for the largest portion of the landfill ever open at any one- time over the aotive life of the landfill. For example, if an owher or operator routinely capped portions of th'e landfill es theyxeached capacity and never had more than one acre open at .any time, then the estimate of the maximum extent of operationwadld be Otte acre. Under the proposal, an area was�considered openif it was subject to 'the regulations and had mat been closed in accordance with the closure requirements (i.e., had not been closed with a inial cover that met the technical design standards). Likewise, the estimate of maximum inventory referred to the largest amount of waste ever on atx me -time that would need to be handled if riosure were .% occur at any time during the active life of amunicipal solidwaste landfill, This estimate would include any wastes stored temporarily on site (Le., not yet disposed) snd run-off from trenches Ox ditches associated -with the landfill. The .,Agency expects that at most facilities, minimal inventorywill be accumulated on site, The Agency continues to believe that estimates of the maximum area of the landfill ever reguifmg si Minal.cover'at ane time and of the re Y um inventory mustbe includedinthe closiure.plans to ensure that owners or opera tors have adequately preparea for closure, - including closure that milt occur. unexpectedly at anye. timIn.additian, these estixniates will serve as the basis for ileiermiuing the ammmt offinancial . responsibilityneeded in.arder to ensure -that owners and operators'have adequate funds to rover themogt expensive cast of closure:e.,when the largest area of the landfillis open). Becausetifthe confusionnver the definition of `Snaximum extent of operation," however, the Agency is clarifying the language in the final rule by replacirg the estimate -or the "maximum extent of;operation" with an estimate of'ffie largest aiea of the MSWLF that will ever require a final cover over the active life of the facility. Man owner or operates routinely closes landfill cells as they are filled, then the , Plan should indicate the greatesi number Of cells ever open at one ldme. The Agency h finalizing as proposed'the requitement to include an estimate of the'maximuminventory ever on site in the closmeplan. The Agency vdshes to reiterate that the estimate of the maximum area of the MSWLF requiring a final cover must account for all areas of the'MSWLF subject to these regulations ,and not already closed in accordance with the §258.60closurerequi ements. Therefore, portions :of the landfill that have daily cover, but mota'fiml cover that satisfies the cover design standard, must he included in -he estimate, Similarly, the estimate of "the maximum -inventory mustaceourit for.the maximum account of wastes on site land not yet disposed) that may need to be 51098 Federal Register / Vol. 56, No. 1.96 / Wednesday,' October 9, 1992 / Rules and Regulations removed or disposed In the landfill over unapproved State is not precluded from the life of the site, including any wastes initiating corrective action if needed. that may be stored prior to being While the Agency continues to believe disposed on or off site. The Agency, that under very limited circumstances it however, does not intend the estimate of may be possible or desirable to allow maximum inventory to represent the certain post -closure uses of land, design capacity of the landfill. including some recreational uses, e: Poat•Closure Use of Landfill Property without posing a significant threat to human health and the environment, such situations are likely to be very limited and need to be considered carefully. To ensure that activities othep than those necessary to comply with part 258 are not undertaken without prior approval, the opportunity to request permission- for ermissionfor ,future use of a closed MSWI.F for such activities is available only to facilities locatedin approved States. In an approved State, the Director may approve a request from an owner or operator to disturb the final cover, liner or other component of the containment system, including removing wastes, only if the owner or operator demonstrates that such activities will not increase the potential threat to human health or the environment. The proposed rule would require that the post -closure plan include a description of planned future uses of the site. SecUon 258.3>,(c)(3) proposed that the post -closure use of the property could not disturb the Integrity of the final cover unless the State approved the owner's or operator's demonstration that the activities (1) would not increase the potential threat to human health and the environment or (2) were necessary to reduce a threat to human health or the environment (e.g., disturbance of the final cover as part of corrective action). In the preamble, the Agency noted that a recreational park might be an acceptable use of property if the above criteria were satisfied. The Agency received several comments regarding the use of landfill sites during the post -closure care period. One commenter supported the future use of closed sites as long as the integrity of the final cap and liner was maintained and proper monitoring continued. A few commenters opposed the subsequent use of property, noting that post -closure recreational use (e.g., use of off-road vehicles) could disturb the final cover, expose the public to toxic materials, and promote leachate generation, thereby providing inadequate protection of human health and the environment. One commenter suggested that sites not be used for at least five years and that an evaluation of the site by an independent geotechnical engineer affirming that subsidence had not occurred be required prior to any subsequent use. Upon consideration of the comments, the Agency is finalizing the proposal substantially as proposed with changes to allow for self -implementation and to clarify the intent of the regulatory Ianguage. To ensure that corrective action measures could not be construed as inconsistent with the post -closure use of property restrictions, the proposed rule included a provision that a closed unit could be disturbed if necessary to reduce a threat to human health and the environment. To clarify this intent, the final rule replaces this language with the provision in § 258.61(c)(3) that states the owner or operator may not disturb the Integrity of the final cover unless It Is necessary to comply with other . requirements in part 258. This clarifies that an owner or operator in an 4. Sections 248.60(d) and 258. 61(d) Closure and Post -Closure Plan Deadlines and Approvals The proposed requirements for closure and post -closure plan deadlines and approvals in § § 258.30(c) and 258.31(d) would establish the general requirement that owners or operators must prepare closure and post -closure care plans by the effective date of the regulation or upon the initial receipt of solid waste, whichever is later. The proposal would defer to the States for establishing deadlines for submitting the plans to the States, The proposal also specified that plans and any subsequent modifications to the approved plans would be approved by the States. The Agency received a number of comments regarding the rule's deadlines for preparing closure and post -closure plans and the requirements for States to approve these plans. Most of the commenters expressed confusion about the deadlines for preparing and submitting plans. In particular, commenters questioned whether plans must be prepared or submitted by the effective date of the regulation, at some later time, or by State -specific deadlines. Some commenters noted the possibility of inconsistencies and conflicts between the proposed deadlines and State deadlines. Other commenters expressed concern that the deadline for completing plans by the effective date of the rule would not allow adequate time for many owners a operators, especially of existing facilities and those serving smaller communities, to prepare adequate plans Several commenters contended that without a deadline for the submittal of plans, it would be difficult to enforce compliance and ensure the development of adequate plans. One commenter suggested that States should establish schedules for submitting plans but that they should be required no later than three years after the effective date for existing facilities. . Several States expressed concern that the proposal would require them to review and approve or disapprove all plans by the effective date of the rule, which would pose an undue administrative burden on limitedm resources. Finally, some comenters expressed concern that the proposal did not contain specific provisions for public participation during the pian approval process. Based on its experience in the'subtitle C program, the Agency does not believe that owners or operators will face an unreasonable burden in developing plans by the effective date of the rule. In implementing similar closure and post - closure plan requirements under. subtitle C, the Agency did not encounter problems for Owners or operators of hazardous waste facilities who were required to prepare plans within 12 months from the promulgation date of the rule (i.e., twelve months less time . than the deadlines applicable to owners or operators of municipal solid waste landfills). As noted in the preamble to the proposed criteria, much of the information required to prepare a closure and post -closure plan should be readily available to the owner or operator based on routine operating practices. The Agency also continues to believe, that procedural requirements, such as deadlines for submitting plans to the States, should be left to the States to allow them the flexibility to establish their awn priorities, particularly because many States already have solid waste management programs with such procedural requirements in place. The Agency does not agree with thosemm commenters who asserted that withotit deadlines for submitting closure and post -closure plans, adequate plans may not be prepared. The Agency believes that the final rule includes a sufficient amount of specificity to allow owners or operators to piepare adequate plans. Because of the above reasons, the Agency is finalizing the rule substantially as proposed with some changes in order to allow for self - implementation of the rule. The final rule continues to require that owners and operators prepare their closure'and post -closure plans by the effective date Federal Register / Vol. .56, No. .196./ Wedaesday, _GaGber 9, aggi / Rules and .Regulations 31099 of the regulations or the initial receipt of waste, whichever is later 'Consistent with the other recordkeeping requirements in the final rule, the:owner or operator must notify the State Director that the'plans have been preparad and placed in the operating record of the facility.'t'o allow for self - implementation, the rule no longer includes the'requirement that States must approve iheglans, 5 .Section 258.80 (f) and fg) Deadlines for Closure a. Deadline for Beginning Closure The Agency proposed in § 258.30(d) . that owners and operators would begin closure of each landfill unit in accordance with an approved closue pian no later than 3o :days after the frinal receipt of wastes at that unit. The Proposal did not define the ' final receipt of wastes"; however, in the preamble accompanying theproposedsul% the Agency encouraged States to define the final receipt of waste to preclude landfills from remaining inactive for an indefinite period of time by.claur ing' they had not receiysd.ihe final shipment of waste. The A,gericy.suggested that States adap t a standard requiring sites to begiri closure within 30 days of;die final receipt' of waste, or no later than one year after the most recent receipt of waste if landfill'capacity,was available. The proposed rule would give States the discretion fo grant extensions to the deadline for beginning closure; provided that thelanam unit-would.not pose a threat tohurdan health or the environment. The Agency received numerous comments on thisproposed requirement. While some commenters favored the 3o - day deadline, most commenters argued that the 30 -day deailline'for'beginning closure would not feasible or desirable undar'a number of circumstances, such as adverse weather conditions or unavoidable contract delays. These commenters suggested 90 days or Uo days from the date of the final receipt of waste, -34th-allowances- for extensions, non'tending that these longer timeframes would reduce the number of requests for extensions and Pose no unreasonable risk to human health and the environment. Finally, some commenters recommended -that the Agency nvt-specify a deadline in the regulation but delegate to -the States the responsibility of establishing closure schedules. The Agency received a nura'ber of comments supporting the inclusion of extensions to the 30 -day deadline to account for circumstances -such as seasonal condiftvnsiliatpreclude' initiating earthmoving activities, .or landfills that have rematning capacity but are experiencing business fluctuations. Commenters also noted the need for specific criteria for granting extensions to the deadline to begin closure. Most stated that detailed criteria for granting extensions were necessary to ensure adequate protection of human health and the ,environiaent. Suggestions included specifying a time limit for which extensions may be granted to ensure that sites were closed in a timely manner, and allowing the appropriate authority to grant extensions to the deadline for.beginning closure only if the owner or operator demonstrates that the unit or facility has remaining capacity, and that the caner or operator is operating, and wiii continue to operate, the facility in a manner that ensures the protection of human health and the environment, including complying with all applicable regulations. In response to public comments and to make the regnlrements'self implementitiig, the final rule in 1'258.00(f) requires an owner or operator to begin closure within 3o days after the final receipt of waste, or no later than one year from the most recent receipt of waste tinder certain circumstances. Extensions beyond the one-year deadline are available onlyinappro'ved States if certain criteria are met. The Agency continues Lto believe it is important to establish deadlines for triggering closure of landfills to avoid .. potential threats to humanhealth and the environment posed by inactive but unclosed landfills, particularly for facilities located in unapproved States. The Agency believes that in most cases, 30 days from the finalrecelpt of waste .will provide sufficient time to begin closure activities,'TheAgency wishes -to reiterate thatfhe-so-day deadline refers to the beginning of cldsure activities and does notrequire that closure be completed within 30 days, or that procedures for installing the final cap necessanlybegin-within [Melo--day deadline. Since all -owners -or operators will be'required to have prepared closure and post -closure plans by the effective date of the regulations, the owner -or operatox•should be prepared to begin closure procedures of each unit within the specified time frame. As discussed below, the ficial rule allows owners or -operators, in limited circumstances; to delay closure up to one year after the most recent •receipt of waste, which should minimize. any: burdens on owners or operators. The Agency agrees with commenters who argued that it maybe desirable to allow a unit or -facility to delay closure if the landfill unit has remarning capacity. Therefore, the final xale allows an owner or operator of.a landfill to delay closure up to one yearirpm dhe.most recentreceipt of waste if t -he landfill unit has remaining,capacity and there is n reasonable like'llhood. that the unit will receive.adaitioual wastes. In addition, the Director of an �apprnved State may grant extensions beyond this one-year deadline fox heginning closure under - certain circumstances. The Agency also agrees with commenters that criteria for granting extensions to the closure deadlines are important for ensuring that units or facilities do not unnecessarily delay closure if such delays would pose threats to human health and the environment. Therefore, the final rule adds criteria to § 258.so(f) and allows the Director of an.approved State to grant an extension to the maximum;one- year deadline to begin closure if the owner or Qperator demonstrates that the unit has the capacitytoxeceive .'. additional wastes, and hehas taken and will continue totake all steps to prevent threa',s to human healthand the enviranmeni from the unclosed landfill. The Agency also received comments' requestingclarification of'theterm "final recdiptofavastes." Tne proposal stated that closure must',begin within 30 days Of the "final receipt -of waste." Most commenters suggested that the Agency define "final receipt of wastes," .argi ing that the lack of a uniform definition would threaten The protection of human. health and the erivironmeni by allowing sites to remain inaotive 1-cean indefinite amount of time. Suggestions included defining "final receipt of waste" as the last expected receipt of waste to account for extended periods of inactivity in rural areas and infrequently used landfills, and linking the tagger for beginning closure to design capacity to avoid forcing a landfill to close if it stint itis capacity and intends to receive additional wastes, Connnenters argued this approach would prevent owners or operators from receiving periodic shipments of wastes solely to avoid closure even though the unit bad reached its design -capacity. The Agency agrees that it is necessary to include amore explicit definition of "ficialreceipt of waste" to ensure that closure is not deferred indefinitely. The Agency •also recognizes that in some cases, a landfill may.receive wastes relatively infrequently (as may be the case with small, rural landirilsj but have remaining capacity.aburefore, § 258:80() of theTmai rWerequires•that owners or operators begin closure of 51100 Federal Register Vol. 56, No. 196 / Wednesday, October 9, 1991 / Rules and Regulations each unit within 30 days after the known final receipt of wastes or, if the Iandfill has remaining capacity and there is a reasonable likelihood that the landfill will receive additional wastes after the 30 -day period, no later than one year after the date on which the unit received The most recent volume of wastes. This definition will ensure that units are closed when they are unlikely to receive any additional wastes or have no remaining capacity and, at the same time, will provide sufficient flexibility to account for routine business cycles and other business disruptions. b. Deadlines for Completing Closure While the proposal did not specify deadlines for completing closure, the Agency recommended in the preamble accompanying the proposed rule that States develop specific deadlines and milestones for completing closure aclivIties. The Agency also requested comments on whether the federal criteria should include a deadline for the completion of closure. A number of commenters supported the proposal to leave deadlines for completing closure up to the States, thus allowing the States flexibility to account for the unique situations of sites within each State (e.g.. weather conditions, availability of contractors). The majority of commenters, however, recommended that a specific deadline be set for completion of closure to ensure that closure Is not unnecessarily delayed. Commenters suggested a number of different deadlines: Some commenters suggested 'the Subtitle C requirements of 180 days with an option for extensions, and others recommended time periods of one year to one and one half years. One commenter suggested that the Subtitle C interim milestone of 90 days for managing all inventory also be Incorporated into the rule's closure deadlines. Particularly because the final rule utilizes a self -implementing approach, the Agency agrees with the commenters' concerns that including a deadline for completing closure is necessary to ensure that the completion of closure is not delayed indefinitely. Therefore, the Agency is adding § 258.60(g) to the final rule to require that closure of each unit must be completed within 1130 days of the beginning of closure activities. The Agency recognizes that in limited circumstances climatic conditions and other factors may make it difficult to complete closure within 184 days. Therefore, the final rule also allows the Director of approved States to grant extensions to the 180 -day deadline if the owner or operator demonstrates that closure cannot be completed within 180 days, and he has taken all steps necessary to ensure that delaying the completion of closure will not pose a threat to human health and the environment.' This 180 -day deadline and the option for the Director of an approved State to grant an extension under limited circumstances are consistent with the deadlines Linder subtitle C in 40 CFR 264.113 and 265.113. This approach is also consistent with comments submitted by a number of parties as noted above. The Agency does not believe that it is necessary to incorporate a 90 -day interim deadline for removal of inventory into the closure deadlines. The Agency does not anticipate that municipal solid waste landfills are likely to accumulate large quantities of inventory that could pose a serious threat to human health and the environment if they were not managed quickly. Furthermore, the Agency does not want to restrict State flexibility unless it is necessary to protect human health and the environment. States may wish to incorporate interim milestones in their programs to take account of site- specific or State -specific conditions (e.g„ interim deadlines for installing final covers if deemed appropriate to account for special climatic conditions). 6. Section 258.60(e) Closure Notification Requirerrrelrt The proposal did not include a requirement that owners and operators notify the States of the commencement of closure, The Agency instead recommended that States develop their own closure notification requirements to allow time for facility inspections to ensure that the approved closure plan was still applicable. (The proposal would require that all closures be in accordance with an approved closure plan but would Ieave to the States the responsibility of establishing review procedures.) Several commenters disagreed with the Agency's position that closure notification requirements should be deferred to the States, arguing that specific notification requirements are necessary to allow States the time to inspect facilities and ensure that the approved closure plan was applicable. In addition, commenters noted that advarkee notification would help to avoid inactive but unclosed sites. Commenters suggested that the Agency incorporate the requirements of Subtitle C and require notification at least 80 days prior to closure. Commenters also recommended including provisions for public participation as part of the notification requirements. Upon consideration of the comments, the Agency decided to add a notification . requirement to the final rule in § 258.60(e). The final rule requires all owners or operators (iuboth approved and unapproved States) to notify the State in which the facility is located prior to beginning closure of each unit, and place a notice of Impending closure in the facility operating record. The Agency believes that notifying the State of closure is important to provide States and citizens an opportunity to ensure that the activities described in the closure plan are appropriate to close the unit under current conditions. This is particularly important for today's self - implementing rule because there are no requirements to approve the closure and post -closure plans prior to closure. 7. Sectlaa 258.61(a) and (b) Length of Post Closure Care Period The Agency proposed under § 258.31(a) that owners and operators of MSWLFs must conduct two phases of post -closure care. During the first 30 years of the post -closure care period (Phase 1), the proposal would require the owner or operator to conduct routine maintenance of the final cover, conduct ground -water monitoring, continue leachate collection and gas.monitoring requirements if subject to these requirements during the facility's operating life, and maintain the integrity of these monitoring systems. Leachate collection systems would be required to be operated until leachate was no longer generated. Following completion of the first phase of post -closure care at each landfill unit, the proposed rule would require in § 258.31(b) that owners and operators of MSW LFs conduct a second, less -intensive phase of care that included, at a minimum, groundwater monitoring and gas monitoring in order to detect any contamination that might occur beyond the first,30 years of " postclosure care: The proposal would leave to the States the responsibility for specifying the duration and the specific activities to be conducted during this second phase. In the preamble to the proposed Tule, the Agency requested 'comments on the two -phased approach, information on the frequency and timing of releases from landfills, suggestions for criteria that could be used to evaluate the'length of the post -closure care periods, appropriate demonstrations for terminating the post -closure care period, and other pertinent information based on experiences with closed landfills. Commenters were nearly unanimously opposed to the proposed length of the Federal Register / Vol. 50, No. 196 / Wednesday, October 9, 1g91 / Rules and Regulations 51101 post -closure care period and suggested a variety of alternatives, Several commenters argued that the minimum 30 year please I post -closure care period was unnecessarily long, contending that a landfill reaches equilibrium in as few. as ten or fifteen years after which significant quantities of leachate and methane gas are no longer generated. Others recommended a mandatory period of five, ten or twenty years with the option to extend the time frame only if the State determined it to be �{ necessary. Finally, some recommended granting the States more flexibility in determining the length of post -closure care period. Several commenters specifically opposed a mandatory second phase of post -closure care asserting that additional past -closure care beyond 30 years should only be required on a case- by-case basis if a problem exists, Other commenters noted that the proposal was mare stringent tllan subtitle C requirements, and recommended that the final rule be consistent with subtitle C and delete the second mandatory phase and allow States the discretion to reduce or extend the 30 -year Phase I requirements. Granting States the discretion to increase the length of the period if necessary to protect human health and the environment on'a case- by-case basis eliminates the need for a mandatory Phase II period: Many commenters also noted the economic burden of a potentially infinite Phase II Post -closure care period. In contrast, some commenters asserted that a 30 -year Phase I post - closure care period was not long enough and urged the Agency to lengthen the Phase I period because leachate and gas formation may continue beyond the first 30 years after closure and releases may Occur when liners and leachate collection systems fail, One commenter contended that perpetual care would likely be required. Other commenters argued that unless owners or operators continued to maintain the cover and prevent the infiltration of liquids into the Iandfill after the initial 30 -year period, significant amounts of water would be introduced into the landfill, leachate and methane gas would be generated, and releases would likely to occur. Finally, commenters suggested that the Agency establish criteria for determining when reductions in long-term postclosure care are warranted to avoid inconsistent implementation of the requirements and to ensure that reductions are allowed only when there is no significant threat to human health and the environment. After carefully considering the public comments recQivcd, the Agency decided to drop the two -phased approach to Post -closure care, and is requiring in § 258.01(a)(1)—(4) that owners or operators conduct post -closure care activities for period of 30 years after the closure of each MSWI,F unit.'Section 258.61(b) allows the Director of an approved State to extend or reduce the 30 -year period based on cause, Reductions in the length of the period Will only be permitted if the owner or operator demonstrates that a shorter period is sufficient to protect human health and the environment. increases in the post -closure care period may be made if the Director of an approved State determines that the lengthened period is necessary to protect human health and the environment. Although commenters suggested various alternative post -closure care periods, the Agency does not have data to enable it to evaluate the alternatives suggested. While one commenter submitted some data suggesting that equilibrium would generally occur ten to fifteen years after closure, this assessment was made based only on gas generation rates. No leachate data were submitted. The Agency did not receive empirical evidence demonstrating that discontinuing post -closure care after the stabilization of an MSIM would be adequately protective of human health and the environment. The Agency also did not receive any data -supporting any of the other recommended time periods, including the need for longer time .periods. Therefore, the Agency does not have data at this time to support a requirement that is either more or less stringent than -subtitle C requirements. The Agency is allowing this 30 -year period to be decreased or increased by the Director of an approved State to account for situations where a 30 -year Post -closure care period maybe inappropriate based on site-specific conditions. providing for variances in the post -closure care period in approved States allows the flexibility to accommodate differences in geology, climate, topography, resources, demographics, etc. in all cases, however, the Agency is convinced that these decisions must be reviewed carefully and be -subject to State review to ensure that units are monitored and maintained for as long as is necessary to protect human health and the environment. 8. Section 258.81(c) Past -Closure Care Activities The Agency received varied comments on the types of activities that should be undertaken during the post - closure care period, A number of commenters supported the requirements ss -proposed. In contrast, some commenters asserted that the requirements should be made less stringent, arguing that municipal solid waste landfills do not pose the same risk as hazardous waste landfills (e.g,, MSWI.Fs located in rural areas). Others contended that the very large costs associated with 3o years of ground- water monitoring would be burdensome to owners or operators. Several commenters contended that the proposed post -closure criteria did not provide sufficient guidance to the States and recommended that more specific post -closure care requirements be promulgated in order to adequately protect public health. The, Agency received extensive comments on the proposed post -closure . care leachate collection requirements. Several commenters objected to the requirement that owners or operators of Iandfills maintain and operate the leachate collection system until leachate is no longer generated, claiming that Leachate may be generated in perpetuity, especially under certain climatic conditions, One commenter'stated that the proposed definition of leachate as "liquid passing through or emerging from. solid waste that cons trains'soluble. suspended or miscible.material" ensures that leachate will need to'be collected in perpetuity even though it may pose limited threats, Others contended that it maybe environmentally acceptable to stop pumping Ieachate if the contaminant concentrations reach environmentally acceptable levels as determined by the State. After consideration of the commenters' concerns, the Agency decided to finalize the proposed post - closure care activities in 1258.81(a) with one change to the leachate collection requirements as discussed below. The Agency believes that requiring owners or operators at a minimum to maintain the cover and containment systems and to continue ground -water monitoring, gas monitering,'and leachate collection is consistent with the Agency's dual goals of preventing releases of constituents and detecting releases that occur as quickly as possible. The Agency does not believe that more specific past -closure care requirements are necessary. Many of the, Post -closure dare activities are extensions of activities conducted during the operating life of the facility and should not require extensive facility -specific analyses. Furthermore, the final rule does not prescribe the Precise activities that must be undertaken to achieve these objectives; thus, the rule provides sufficient flexibility to account for those 'facilities 511o2 i~ederal. Register f Vol. 58, No, ash /"Wednesday, October 9, -159i f Rules and Regulations that pose lowrisks to human health and the environmeriL The Agency reconsidered the proposed leachate collection requirements and acknowledges that at some landfills, leachate concentrations may eventually become low enough to pose no threat to human health and the environment. However, because of the potential threats posed by leachate, the Agency believes that the decision to stop managing leachate must be reviewed and approved by the State. Therefore, the .final rule in § 258.61(a)(2) requires that owners or operators continue to collect and manage leacliate in accordance with the requirements of § 258.40 for 30 years consistent with all other po st-closure care requirements. In an approved State, the Director may allow an owner or operator to cease managing leachate if the owner or operator demonstrates that the leachate no longer poses a threat to human health and the environment. A few commenters argued that post - closure care activities were overly burdensoma for small landfills and that such facilities should be exempt from the revised criteria. While the Agency recognIzes the wide diversity in site conditlons and encourages States to be flexible in evaluating post -closure care requirements on a case-by-case basis, the Agency Is unwilling to grant less stringent requirements or exemptions to small landfills that otherwise do not meet the criteria for exemptions to today's rule as discussed in Section IV.A of the preamble. Without post - closure care, the probability of future contamination greatly increases. In addition, the costs of cleaning up a release that might occur in the absence of post-ciosuro care would likely be much greater than if the site had been properly maintained and monitored and under constant surveillance. 8. Section 256,60(l) and 6j) Notation on the Deed to Property proposed § 258.31(e) would require that following closure of the entire landrill, the owner or operator must record a notation on the deed or some other instrument normally examined during a title search that will notify any potential purchaser in perpetuity that: (1) The land has been used as a municipal solid waste landfill, and (2) its use Is restricted under § 258.31(c)(3). The proposed rule also would allow an owner or operator to request permission from the State to remove the notation if all wastes were removed from the facility. Some commenters argued that an owner or operator should not be allowed to remove the notation from the deed under any circumstances, asserting that potential purchasers should be made aware of the full history of the site and be alerted to potential defects or liabilities associated with the land, even when all wastes have been removed, These commenters argued that the persistence and the difficulties of detecting leachate plumes and the uncertainties of evaluating the potential for future health risks further supported their recommendation of retaining the notation on the deed. The Agency considered the commenters concerns but disagrees that property owners should never be allowed to remove the notation on the deed and is finalizing the rule as proposed. The Agency continues to believe that if all wastes have been removed from the facility, including any contaminated ground -water and soils, then the property poses no greater threat than one that never was used to manage municipal solid waste. This provision is consistent with subtitle C requirements for hazardous waste facilities. However, the Agency strongly believes that a decision to remove the deed notation must be considered carefully and that in practice very few owners or operators will be able to take advantage of the provision. To ensure that this option is allowed only on a very limited basis, § 258.600) of the final rule limits the option to remove the notation to the deed to facilities located in approved States if the owner or operator can deniunstr4ta that all wastes have been removed from the facility. To demonstrate that all wastes have been removed from the facility, the owner or operator would not only need to remove the entire contents of the landfill and its containment structures, but also demonstrate that no contamirbation exists In the ground water or In the soils at the facility. Commenters also asserted that the owner or operator should be required to provide a copy of the deed and its notation to the State in order to ensure compliance and facilitate enforcement. Consistent with the provision of self implementing standards throughout today's final rule, the Agency Is requiring in § 258.60(i) that owners or operators notify the State Director that the notation on the deed has been recorded and place a copy of the . notation in the facility operating record, One commenter recommended that the requirement to include a notation on the deed be required as part of the closure requirements rather than as a post -closure care activity. The Agency acknowledges the commenters concern that the notation on the deed be filed in 9 timely manner, however, in those rare circumstances where ail wastes are removed as part of closure, it will be necessary to complete closure before it can be determined if a notation on the deed needs to be recorded. The Agency has made two minor changes to today's final rule to encourage owners or operators to file the deed no quickly. first, while the requirement itself is being finalized as proposed, it is, included in .§ 258.130(i) of the closure criteria to encourage the owner or operator to file the notation concurrent with the closure certification. Second, as discussed in appendix H of today's .preamble, § 258.71(b) of the final rule specifies that an owner or operator is not released from closure financial assurance requirements until he has filed the notation, on the deed. In most instances, by tying the requirement to file a notation to the deed to the release from closure financial assurance, the owner or operator will have a financial incentive to file the deed notice qulcW. T0. Sectlons'25660(h) and 258.61(e) Closure.nnd Post -Closure Care Certifications - In § § 258.30[e) and 258.31(f), the Agency proposed that following closure of each landfill unit and following completion of the second phase of the post -closure care period for each unit, owners and operators must submit certifications that closure and post - closure care activities have been performed in accordance with the approved plans. The rule would require that a "qualified party" provide objective verification, based on a direct review of the landfill, that closure and post -closure care activities had been properly completed. Upon approval of the certification by the State, the owner or operator would be released from financial responsibility requirements under § 258.32(£). The Agency would defer to the. States for establishing procedures for implementing these requirements (e.g., the types of certification that would satisfy the requirements, documentation requirements, deadlines for submissions). The Agency received numerous comments on the certification requirements. Most of the commenters favored requiring some type of certification or notification of the completion of closure and post -closure care to ensure that owners and operators close their landfills and maintain them in accordance with their approved plans, although continents on the specific requirements (e.g., how frequently to certify post -closure care, procedural requirements, were varied. Federal Register / Val. 56, No, 196 /, Wednesday, October 9, 1991 / Rules ,and Regulatic ns '51163 One commenter questioned how the past -closure care requirements would be implemented In the absence of the State approving the closure certification. Soine commenters recommended that certification requirements be left,to the discretion of the States. Others contended that certification by a "qualified party„ would not be necessary and, in fact, could be counterproductive in States where facilities are inspected on a regular basis. The Agency continues to believe that certifications are necessary to ensure that closure and past -closure activities are performed in accordance with the closure and post -closure plans, especially because the completion of closure and post -closure care triggers the release of the owner or operator from financial assurance requirements and other requirements. Moreover, because, the final rule utilizes a self-. implementing approach, the Agency remains convinced that it must require certifications in the revised criteria ' rather than simply providing guidance to the States. Closure and post -closure care certifications, provide an objective way to verify that closure and past -closure care activities have been performed in accordance with the plans. - ' • - The Agency also agrees with those, commenters who favored including a notification requirement of the completion of closure and past -closure care, particularly for facilities located in unapproved States, The Agency agrees that it is important for the States to have the opportunity to review the adequacy of closure and post -closure care activities, particularly in unapproved States, and addresses this concern in two wags in the final rule. First, § § 258.60(h) and 258,61(e) of the final rule require all owners and operators to notify the State that closure or post - closure care has been completed and certified by an independent registered professional engineer or approved by the Director of an approved State. Second, the certification must be placed in the facility operating record and thus can be reviewed to verify that closure and post -closure care'ave been ' performed in accordance with the plans. The requirement to notify the State prior to the beginning of closure combined with this subsequent notification of the completion of closure or post -closure care should help to ensure that municipal solid waste landfills are closed properly and maintained after closure, The Agency does -not believe that the lack of ap )roval of the closure certification, particularly in unapproved States, precludes an owner or operator from conducting post -closure care. The certification requirements in the final rule are intended to be self. implementing anis as a result, the owner or operator is responsible for beginning post -closure care after closure has been completed. The Agency also disagrees with comments that certification of closure and post -closure care may be inappropriate and counterproductive in States that inspect facilities on a regular basis. Requiring an owner or operator to submit certifications following the completion of closure and post -closure care activities will not interfere with any scheduled State inspection, and in fact could help to verify the accuracy of the owner or operator's certification. At the same time, the Agency does not wish to impose any additional burdens on States' inspection capabilities, which, could result if they were required to review all closure and post -closure care activities in lieu of a certification requirement The Agency also received a number of suggestions regarding the specific. certification requirements. -Many of the commenters expressed concern that the requirements to obtain a certification by a "qualified party" was too vague to be effective and recommended that independent registered professional engineer certifications be required. The Agency agrees with commenters that objective closure and post -closure certifications are essential for avoiding any potential conflicts of interest and ensuring protection of human health and the environment and that more specific requirements concerning the qualifications of the certifying party are necessary to ensure the adequacy of the certification, The Agency, therefore, is " requiring in the final rule that certifications be obtained from independent registered professioinal engineers (i.e., registered professional engineers not in the employ of the owner or operator), consistent with requirements under subtitle C and other federally mandated certification programs [eg., CIean Water Act grants). The Agency also received comments on the proposed requirements to certify closure and post -closure care on a per- unit basis and to certify the completion. Of post -closure care at the end of the entire past -closure care period. Same commenters supported this approach and noted that it is consistent with subtitle C. Some commenters, hgwever, recommended requiring certification of closure only at final closure of the entire landfill and at the end of the post- - - closure care period for the entire landfill to reduce costs. Others suggested requiring post -closure care certifications more frequently than proposed (e.g., at least'every five years) to ensure that Post -closure -care activities are being conducted in accordance with the approved plan. The Agency is finalizing as proposed the requirement that closure certifications be submitted after closure - of each unit. Although certifying closure of each unit rather than closure of the entire facility may be more'expensive, unless closure of each unit is certified when closure is performed, it will not be Possible at the time of final closure to determine if the previous closures were performed in accordance with the approved closure plan. This approach'is consistent with the subtitle G closure and post closure care requirements applicatle to owners and operators of hazardous waste treatment, storage, and disposal facilities, which require closure and post -closure by requiring certifications on a per-unit basis. The. Agency also believes that requiring one certification to be performed at the end of the post -closure care period for each unit is sufficient and is therefore finalizing this provision as proposed, Because an owner or operator must continue to monitor ground water during the post -closure care period, the State will be notified and actions will be taken if releases are detected. It should also be noted, however, that certification at the end of the post -closure care period for each unit is the minimum required under these regulations, States have the option of requiring more frequent certifications if they determine that they are necessary. Appendix H --Supplemental Information for Subpart G—Financial Assurance Criteria Under the proposed rule, the owner or operator of anew or existing MSWI.F would be required to demonstrate financial assurance for the costs of conducting closure, post -closure care, and, as applicable, corrective ac tion for known releases, These requirements have been retained in today's rule. Also an owner or operator would be required to demonstrate to the State that he had Planned for these future costs by Preparing written cost estimates based on detailed written plans required in § 258,30(b) and 258,31(e). The final rule also requires these cost estimates. Cost estimates and financial assurance documentation are required to be kept in the facility operating record. Alternative recordkeeping locations and alternative schedules for recordkeeping and notification requirements may be 51104 Federal Register f Vol. 56, No. 196 f Wednesday, October 9, 1991 / 'Rules and Regulations established by the Director of an approved State. While the proposed rule would require owners and operators to demonstrate financial assurance for closure, post - closure care, and corrective action for known releases, It did not specify the types of mechanisms that could be used to demonstrate financial assurance. Instead, a performance standardivas proposed that specified criteria that would have to be satisfied by any mechanism that was used. In response to comments on the proposed rule, the final rule provides greater specificity concerning acceptable financial instruments, whila continuing to provide States with considerable flexibility in establishing Their financial assurance programs. in addition, the Agency Is Intending to propose under separate rulemakings a revised corporate financial test that would apply to owners or operators of MSWLFA.and a financial test specifically designed for local governments. Numerous comments were received by The Agency on the financial assurance requirements. Major issues raised by commenters are summarized below. All comments are responded to fully in the Financial Assurance Comment Response Document 1.5ectlan 256.7o(b) Effective Date of Financlal Assurance Requirements Under the proposed rule, the financial assurance requirements would be effective on the same day as all other requirements applicable to MSWLFs, i.e., 24 months following promulgation of tha final rule. Anumber of commenters objected to the proposed effective date of the financial assurance requirements and suggested that the financial assurance requirements be decoupled from the rest of the rule and that the continent period be extended. In support of this suggestion, several commenters stated that It may be impossible for some local governments to meet requirements immediately if they operate on yearly budgets. Other commenters argued that facilities closing In the near future may have difficulty accumulating sufficient funds to assure 90 years of post -closure care, Another commenter argued that it was unreasonable for EPA to expect the States to have a framework In place to approve the operating and design criteria and the financial assurance mechanisms within 18 months of the final rule. The Agency considered $e commenters' concerns and agrees that additional time will help ensure the effective implementation of the financial assurance requirements. Accordingly, EPA has decided to make the financial responsibility requirements effective 6 months later than the remainder of today's rule. The financial assurance requirements contained in today's rule will be effective W months following publication of today's rule. The Agency agrees that owners and operators, especially local governments, may face difficulties in obtaining financial assurance mechanisms within 24 months, particularly since the proposed rule did not include a financial test designed for local governments. The 6 additional months willallow the Agency time W finalize is financial test for local governments, thus providing an additional mechanism for compliance to those members of the regulated community. Extending the effective date win also allow the financial market sufficient time to respond to new demands for financial instruments, thereby facilitating compliance and helping to ensure effective implementation of the requirements. The Agency continues to, believe that the financial, assurance requirements are important to tine effective implementation of the overall program for management of MSWTXa. Accordingly, the Agency -does not believe it is appropriate to decouple these requirements from the rest of today's rulemaking. 2, Need for Financial Assurance . As stated in the preamble to the proposed rule, EPA believes that the financial assurance requirements will help ensure that,owners and.operators adequately plan for the future costs of closure, post -closure care, and corrective action for known releases, and will help ensure that adequate funds will be available when needed to cover these costs if the owner or operator is unable or unwilling to do so. These benefits are similar to those derived from the subtitle C hazardous waste and subtitle petroleum underground storage tank financial responsibility programs. The Agency received a number of commgnts addressing the benefits and costs anticipated from requiring owners or operators to demonstrate financial assurance. Commenters who supported the financial assurance requirements agreed that the requirements would foster long range financial planning by MSWi F owners and operators and further argued that the -requirements are minimal requirements #hat are necessary to provide protection for health and the environment: These commenters argued that the requirements should not have to await, the development of State regulations. Q ther commenters, however, did not believe that FPA had adequately established the necessity of financial assurance requirements for protecting human health and the environment from threats posed by MSWLF's. These commenters argued that MSWI.Fs do not pose the same hazards as.subtitle C landfills, and therefore the financial assurance requirements' should be less stringent than those for subtitle C facilities. A few commenters contended that the requirements would provide little benefit, while another group of commenters.argued that because financial responsibility is not required by statute, itis outside EPA's Congressional mandate and has been imposed arbitrarily by -the Agency. Several commenters raised the concern that the costs associated with obtaining financial assurance instruments would be high, and in some cases, would drive out of business owners and operators who. could otherwise meat,technical requirements (thereby leaving the costs of closure and post -closure care, unfunded), or prevent owners and operators from starting operation of new sites. Some commenters noted in particular the high costs associated with 30 years of ground-watef monitoring during the. post -closure care period,, A number of commenters were concerned that small private operators, small local governments, and MSWLFs operated in remote and sparsely populate areas in particular would be unduly burdened by the requirements. EPA believes thatit has ample authority to require financial assurance demonstrations under today's rule. Sections 10Q&(a) (3), 4064(a), and 4010 of RCRA, as amended by HSWA, direct the Agency'.to develop criteria to protect against potential adverse impacts to human health and the environment from solid waste disposal activities. The Agencyyhas determined that financial responsibility is a Necessary component of the regulatory program and is - essential to protecting human health and the environment., The Agency has long maintained that financial responsibility requirements are an important component of any regulatory scheme, such as today's Part 258 criteria. In establishing the regulatory framework for the - management of municipal solid waste, the Agency believes that.inclusion of financial responsibility requirements will promote the overall statutory and regulatory goals of RCRA by . - encouraging the development and implementation of sound waste management practices both during and FB&M .Register I Vol. ,56, ;filo, 196 J Wedne-sAay, Ontober '9, 1991 ,J Rules fmc. Regtt3.atians B1155 at the and of activefacilityoperations. Specifiicaily ;the requirements will ensure lhat.adequate funds are available to cover then costs af,ciosme, past -closure ;rasa. ,and corx+active actino activities,, avhi4, i:f A9tplanned for,, often ar,e left :unfunded. Addition governmental expenditures would then .be necessary to,ensuriekcantinusd protcctlon of human health and the environment. - Technicalsequirements are.,effertive in protecting; human healthan.d the, environment: only; if funds urs uvailabie in a timely manner to conduct -these activities. Because ,the hosts ttf closure, :post -Closure rare, :and corrective action could be ,substantial, advance plantiirlg and earmarldngof funds is necessary - Without financial assurance there isno guarantee that the costs of closure,post- closure care, and corrective adieu for known releases avid be. home by the responsible vwner,or, operator. Fivancial assurance 4emonstratioma also encourage. owners and operators to better internalizathe future costs associated with 1 -he landfills and reinforce risk management ancentives, since the ;costs-vf cIosure and past- closure iistclosure .care ne ed for corrective action should be less when ft Jand#"ill is operated In an environmentally protective manner, , .The Agency:does opt agree with commenters m10 maintain thatihe;risks posed byIb MUs do not warrant . financial-assuraaceregvirements, - Improper closure sof MSWLF,s lias been shown stn,create:environmental. problems, Also, Potential hazards, such as methane gassenerationand the potenlial for Ezplosiuns,, asso6ated with the disposal afmurdcipalanlidw.aste are considerable, Dur7rently, approxiinatelg2o ,percent of;giteq ;on tite National lPdctrities Ust am MSW L'&',s. i[n sum, experience suggests 1hat.1he potential:problem of unfunded obligations at MS3N;Lyaas significant. In iight:of the clear steed for financial assurance, theAgencybelteves that the burden a theimancialassuranve requirements promulgated today.is n.eit'herexcessiue nor beyond the practicable capability of owners and operators, 7U financial: assurance requirements in today',s rule have"been structured;sach thaitthe assurance is required only for xosrts,ofactiv:Wes that are certaim to be:needed, and the amount of financial assurance is based on site-specific estimates;o'fthe;costs of clo •sure, post -closure care, xiqd . . - , corrective action..LeHsatxingeiit financial assiirannemquirements would not ensure thaGadequatefunds WIU be available whenneeded to cover these costs.' The, AgeneY�aaintdlns -that these costs are legitimate business expenses and should beaccounted for in axe operating budgets ofMSyVLFi xnpy.der to operate efficleatly. The Agency Moes not believe that owners'and,opeta'tors will Abe vnreasonablyburaened bythe .costs rX obtaining financial assurance mechanisms. `The:eost of complying With the financial assurance requirements shou'ld.nat'be exdessive;and will he a relatively small part -cif the total costs •nr complying wit#.-today"s rtile.'iThe requirements,do not farce owners :or operators to immediately provide'Tull funding of•closure, }post-ciosurecare, or corrective action icosts, %ut rather to demonstrate future avallabllity -of diose funds. For example, today's role allows trust funds to'be bunt up,gradually Isee section 7.a of #firs append x]. By allowing eA�extended " payr--int' period for trust funds, the burden of funtcling closure; pas: dlasure rare, and - corrective action v'b'ligationswiill be spread out over the'-economic'life o'fthe facility, therebir makii g'irnst,runds'-one of the mos'tvia'ble financial assurance mechanisms for-mamy.owners amd operators,. In addition, the Agencyllsproviding numerous tfiiid-party alternatives to trust funds includir� surety bonds, letters of credit, insurance, "and a guarantee.'These financialiinstruments do aotrequire the 9wnenbr operator to put up full tundir{g in advanca; The rost of a guaranlee'willbe negljgiiblelormost owners,and operators wYw are allgi'ble t,m o use €hatechanigm. Mie costal obtain,g.the ofher fiud- parly medbanisms for use in demonstrating financial assurance for subtitle: G facilities is.also low, estimated lobe about one andaha3f to twopercent.a£ the obligation annually, Finally, as discussed further in section 7.a olthis appendix,in.a separate rulemaking effort, the Agencyls considering xevising .the :criteria of :the corporate financial fest;currenily available .to siibUtle O hazardpns wastefacilities. The Agency MtDends propose that this revised corporate test also be available to ownprs;or operators of MSWLFs; thus. allowhig financially' . strong firms 'to .demonstrate that meting aside funds in a trusthind.or obtaining third-partyassurance ;of their.closure, pos t -closure ;care .end •corrective action costs is nnnecessary.'The cost of auch.a test shouId begin;mal, amounting only to the :cost of rnnakirig the -required demonstrations. Furthermore, la's discussed below ,in section'7!b of this :.,appendhc, the-Agencynvilltbeptopaiing a financial test developed specifically for local governments. She urgency anticipates that the effective date ,of both of thesemewlests anrall:coincide with the eRectine.date zf odaay's financial responslbilxt}yxequiramen.ts.' The Agency analyzed.the impact of IM of the proposed zaguirements, i #luding financial assurance mequirements, an members tof theregulated community, and examined anparticular the irpact on local governments and on small . private entities in theAegulatory"Impaot Analysis (RIM to thelinal,rule,As discussed in that document, the Agency has concluded, tthatmbstlocal governments and owners Sof privately - owned landfills will not experience significantimPac1sdue'tothe financial assurance requirements;alnne. As discussedzn.greaterdetailln section.1V_A-, f the preanilale, ho,*ayer, theAgencyracognizes that today's requirements rnayiiose,a sfgnificanf burden on small landfills'Iocatedin small andxP�n e nommunii es. small landfills In approved States.thatmeet , Certain rdteria areeligible for exemptionfrpi .the design; ground- water monitoring andxorrective :action requirements aof..today',s rule.'Therefare, while owners or ioperators :of these landfills are subject to financial. . responsibilityrequiremen'ts ;for closure and post -closure care, they:are :eligible for exemption from the correctiveacttion financial responsibility requirements. - ' Owners or,operators nf:smOlandfills - - receiving exemptions froingrourid-water monitoring would only be required to demonstrate financial assurance for the remaining gos'tsbf closure;andposi closure care,,Which in dludt final Fever installation end maiiAbiiance`and other routine maintenance aLliviiies duiirtg the past -closure care period.137,not requiring .a,ground-water monitoring , system to' be.monitored-and rnainiairied for 3liirty years, the bnrdert tin emelt and remote communMes willbe minimhecl. The.Agency Claes 3beh ive, hnyreyas, that the costs •pf �camply ng`,a dth the financial assurance recaufasmonts can be lessened if a.pprovedstates adopt a - . . broad range;of,financiaj, assurance approaches. T,flward that end,. § :258.74(h) of today's final fade authorizes the use, :inapprovedstafes, of any financial assurance mechanism . that satisfies the performance standards specified in § 25&4(k)inaddit1oatn . . r. those mechairisms explicitly xdenlirleii . in the; dei The Agency.urges- ppruved . States to: consideradnp'ting-abroad range of i`inancW asstuanceiappro~ac�es to prombte'cornpliance-by ,,all:owners wperators:� 51106 Federal Register f Vol. 56, No. 196 j Wednesday, October 9, 1991 f Rules and Regulations M u r�rnw��riu i i i rnrrn�r�a - ���mmr 9. Section 258.70(a) Applicability The proposal would require all owners and operators of MSWLFs, except State and Federal government agencies, to demonstrate financial responsibility for closure, post -closure care and corrective action for known releases. The proposal also requested comment concerning whether Indian tribes should be subject to the requirements. a. Applicability to State and Federal Government Entities The proposal would exempt from the required financial assurance demonstrations MSWLFs that are owned or operated by government entities whose debts and liabilities are the debts and liabilities of a State or the United States. The Agency recognizes that Federal and State governments have the requisite strength and stability to fulfill their financial assurance oblige tions for MSWLFs. No commenters disputed the Agency's position that Federal and State governments have the financial strength and incentives to cover the costs of closure, past -closure care, and corrective action for known releases. Nevertheless, several commenters argued that State and Federal government entities should be required to demonstrate financial assurance. These commenters argued that as a matter of fairness all levels of government should be treated the same; either all government entities should be required to demonstrate financial assurance or all should be excluded from the requirements. Other commenters asserted that exempting any MSWLFs will disrupt competitive forces within the industry. Two commenters had specific questions about how the requirement should be interpreted. One commenter urged EPA to exempt public authorities whose debts and liabilities are the debts and liabilities of a State. This commenter argued that a single -purpose authority is as fiscally sound as a State because if a State decides to dissolve the authority, the State must take over any bonded debt Issued by the authority. The other commenter suggested that the Agency should clarify whether the requirements apply to landfills ownedby a State or Federal government, but operated and/or leased by a local government. After considering these comments, the Agency is promulgating the final rule as proposed. MSWLFs owned or operated by those government entities whose debts and liabilities are the debts and liabilities of a State or the United States will continue to be exempted from financial assurance requirements, In some cases, this will include single - purpose public authorities. In other cases, however, the debt of single - purpose authorities may not be supported by the full faith and credit of the State under that State's laws. In those cases, it is not appropriate to exempt the authority from financial assurance requirements. The Agency believes that differences between Federal and State governments and other governmental entities provide sufficient rationale for treating these entities differently with regard to the financial assurance requirements. Federal and State governments are permanent and stable institutions that _ exist to safeguard health and welfare, and they have the requisite financial strength and incentives to cover the costs of closure, post -closure care, and corrective action for known releases. The availability of resources to Federal and State agencies differs from the availability of resources to local governments. Federal and State governments have flexibility in their annual budgets, whichfacilitates reallocation of funds for a specific purpose. Federal and State entities also can access sources of financing such as intergovernmental transfers relatively quickly. Further, since few MSWLFs (four percent) are owned or operated by Federal or State agencies, exempting these facilities will not significantly disrupt competition in the solid waste disposal industry. As indicated in the preamble to the proposed rule, the financial assurance exemption extends to cases in which a MSWLF is owned by a State or Federal government entity and operated by a private party or local government (or operated by a State or Federal government entity while owned privately or by a local government). A State or Federal owner may,'of course, require the private or local government operator to provide financial assurance by contractual agreement, The exemption may also extend to a single - purpose authority if the authority's debts and liabilities are the debts and liabilities of the State. b. Applicability to Local Governments The proposal would exempt only Federal or State governments. All other owners and operators, including local governments, would be required to provide financial assurance for closure, post -closure care and corrective action at MSWLFs that they own or operate. Local governments in both general purpose local governments (e.g., municipalities, counties, cities, townships, towns, and villages) and special purpose local governments. Special purpose local governments, generally designated as either public authorities or special districts, may perform a single function -or a limited range of functions. Both general purpose local governments and special purpose entities were required to provide financial assurance under the proposed rule. The Agency received numerous comments on its proposal to require local governments to demonstrate financial assurance. Commenters supporting the Agency's proposal argued that local governments may bo unable to raise.the necessary funds through their. taxing powers and that local governments may not be able to make long-term advance commitments of future funds necessary to provide -adequate assurance. Commenters argued further that because of these limitations on the availability of funds, all owners 'and operators, including local governments, need to factor the cost of closure and post closure care into the management of an MSWLF In order to ensure that the site is not abandoned. Several commanters suggested that many NISWLFs operated by local governments could become future Superfund sites if financial assurance is not required of local goverinnents. Many other commenters, however, urged the Agency to exempt some or all local governments (including cities, counties, and towns) from financial assurance requirements for a variety of reasons. Some commenters asserted that local governments operating MSWLFs have a direct stake in providing for the health; welfare and protection of their communities, and should not be burdened with rules that interfere with the'efficient execution of their duties. Several commenters argued that local governments should not be required to demionstrate financial responsibility because they rarely go bankrupt and in those cases when they have gone bankrupt, they have paid all of their obligations eventually. Several commenters contended that many local governments have sources of funds that would be available in an emergency to cover the costs of closure, post -closure care, and corrective action, such as unused taxing authority, user fees, bonds, and short-term notes, thus making financial responsibility requirements unnecessary. Some commenters argued that local governments should be exempted from financial assurance requirements because of the burden such requirements would impose. Several Federal Register J Vol..55, No. Igo I Wednesday, October "9, 1991 .1 Mules and. Regtd.atlons S'3.1M commenters stated that :the cost of demonstrating financial assurance would cause,many local governments to abandon their.solid waste disposal programs.`ihey ,argued that slew part 258 criteria wilt increase ;the costs Df operation, and that Finandial assurance requirements would only compound the economicburden onMSWLF owners by requiring up -°front money or guarantees. Other commenters indicated that financial assurance requirements may cause'solid waste management to shift from 4he public sector to the private sector if local governments choose to contract with private commercial MSWLF.fadilitles rather than provide the amount of assurance required for their own landfills. Finally, commenters suggested that States should be given flexibility in deciding,whether to exempt their Dwn local governmenta :from the financial assurance requirements. The :Agency has carefully considered all of,thie -comments on #his :issue, and, for,the reasons discussed below, continues to 'believe it ,appropriate to distinguish between local governments andEederal ane State governments when applying the financial assurance requirements. Under today's finalrule, therefore, local governments remain stlWect to financialxesponsibility requirements. The Agency.agrees:vvith commenters who asserted that Local gover=ents may be'unable to raise sufficient funds through taxation and that local - governments inay not be able to make long-term commitments of future. funds. While, several cam.nienters contended that local governmenfs would have the ability to raise funds in .a tifely manner sufficient:to cover the costs of closure, post-closure,care-and coirective action, these commenters did not supply the . Agency 'With evidence that this was generally tvue for.all'local -governments, While the Agency recognizes -that many local governments, like Federal and State governments,.are permanent - entities thatact to'secure the well-being of their citizens, there is substantial variation,suwng ^local governments in terms �ofsize,Ainancialcapacity and functions performe&It is therefore . likely that thera is substantial variation among,thesesovernments in terms of their,ability -to meet'their closure, post - closure --care and corrective action obligations -in a timely manner. Exemp ting all local governments ,from the requirements would provide insufficient protection of human Health and the environment., Furthermore, .although local governments are unlikely to abandon their MSWLFs even in the event of bankruptcy, studies o£ the probability ,of bankruptcy among' local Zowrnments indicates that Velaiive to Federal, and State governments) they are generally (7) more limited in terms oM inandal resources and less flexible in their annual budgets, therebyanaking' reallocation of a substantial amount of funds for aspecific purpose in a,given year more difficult; [z) less.able To, obtain their traditional sources of ` financing le., -.,bond issues, -taxes, and intergovernmental transfers) quickly enough lo ensureAindingin a timely manner, .and 13) more prone to iascal emergencies thanFederal" and State. governments. Also, whIle localities in bankruptcy may be able to meet their obligations overthe,long'term., obligations.suoh as closure and corrective action may.require immediate financing to ensure adequate, protection of Human health and the environment. In light of the meed to ensure that all owners. and Dperatora meet their environmental obligations an a timely manner, combined with the variability among -municipalities, the Agency believes that a uniform set of applicable requirements is necessary. Therefore, the Agencybas decided against allowing States' to decide whether to exempt their ownlocalgovernments. The Agency.decided notto exempt . any special category of local governments from today's filial role (with'the,exception of smaIllanaMs qualifyingforan exemption in approved Stales as discussed above). WInle the Agency recognizes that local governments may vary in their ability to meet the oosla of closure, .post-telosure care, and corrective action, -the Agency is durable,to supporta variance for"any type oflocal.governmentleg„ cities, counties).'The same.concerns that . prompted the Agency to include local governments generally apply to these special categories as ,well. Requiring all local., governments to demonstrate financial assurance should encourage appraprlate advancedplanning for the costs of closure, post -closure care, and. corrective.action for known releases by these .entities. The Agency •does not believe .that the requirements .will generally be burdensome to local governments. As discussed above, the cost ofthe financial.assurance requirements- are a relativelysinall,part:of.the total cost of compliance with today's rule. Because the requirements will beapplied hto.all MSWLF owners and`operators, regardless .of whether they are local governments.orprivate companies, the Agency .does not believe that tithe requirements will cause ,a shift from public to private Dsvnsrship of solid, waste management ffarliiies. : - The ;Agency does Tecognize the' . potential burden that financial assurazica requixemesits nay iiripose.on some local governments,'Tn minimize this burden, the Agency Is finaBimi g several alternate mechanisms.`fhat.may be used to demonstrate financial assurance and encourages States to develop innovative financial responsibility anechanisms.'To fcUdhex reduce'the potential burden,of'these provisions onlocai governments, the Agency is developing.a financlal test designed specifically for local governments that is expectedto'bD proposed:soon af'terToday's rule is promulgaied'(see:section 7-b ;below). The Agency cumentlyaniticipatest&at the effecthnr dale of Ilie financial test for local governments wa"lIzolnclde with the effective date of the fizancial responsibility provislons of This ride :(30 months following, publication of -today's rule). F'irianciallystronglocal governments :that demonstrate 'that rthey possess :the necessary financial capacity end have adequately .plarmed to meet their.MSWi.F jobligations m a .timely manner vv.Tll be,able to .use afinancial test E id will"not be required. to :acquire additional'financial,ussurance merhanisms.'ihe specific =iteria iaf this financial test for local governments and projected, astlmates,ofthelest's '. availability io local government owners and operators for. use to meet todsy's requiremeiits wM6.discussed more -fully in:aseparatenotice of proposed rulemaking. a Applicability toindian'Fribes The .preamb-le to the proposed rifle requested comrrients Dawhe'therto exempt Indian Tribes fr=Mriancinl responsrbdity requirezaenta, +and,Rn whether Indian Tn-bes have the requisite financial strength,andincentives'to cover the costs of closure,;post-closure care, and corrective action for knuivii releases. III response to this,request, many commenters urged the Agency to exemp, Indian Tribes from the financial responsibility Tequiremenis. Commenters ergued'that Indiann'Tribes are sovereign in their, ownTight:and, like State goverumelnts, .are permanent and stable institutions that exist to safeguardbealth andwelfara. Commenters noted that Txib at . governments. have -the dame linancing options fe.g.; bonding and taxation] - available to them as do States and the Federal government. In addition, commenters asserted that due to the smallpo,pulatlonsvfaeseruatiars, solid 51108 Federal Register / Vol. 56, No. 7.88'/ Wednesday, October 9, 1991 / Rules and Regulations waste disposal problems on reservations are likely to be of a small magnitude and to require less funding than those of other MS'ilb'LFs. Other commenters argued that with such small populations and a high unemployment rate, most Tribes would be unable to meet the financial assurance requirernents, Some commenters, however, opposed exemption of Indian Tribes from financial assurance requirements. These commenters argued that Tribal land is often leased to government and industry for use as disposal facilities. As a result, financial assurance for MSWLFs on Tribal lands is as necessary as for any other MSWLF. Another commenter noted that Indian landfills in Arizona are causing adverse impacts on the environmental quality of the State and that there is currently no mechanism to a ddress those problems. The Agency has carefully considered the commenters' concerns and has decided not to exempt Indian Tribes from the fInanelal responsibility requirements of today's rule. Section 1004 of RCRA. defines "municipality" to include Indian Tribes. The Agency is concerned that Indian Tribes, far reasons similar to those discussed for municipalities above, do not have the requisite financial strength to ensure funding of their closure, post -closure care and corrective action obligations. XVMle a number of commenters suggested that Indian Tribes have the financial strength to meet these obligations, none provided data to support an exemption from the financial assurance requirements. The Agency believes, therefore, that it is in the Interests of protecting human health and the environment to require Indian Tribes to comply with the financial assurance requirements of today's rule. Financially strong Indian Tribes, like financially strong municipalities, will be able to comply with the requirements using the local government financial test to be proposed in the near future. 4. Sections 258.71(10, 258.72(b), and 258.73(5) Scope of Coverage a. Financial Assurance for Corrective Action for Other Than Known Releases The proposal would require financial assurance for the costs of known corrective actions to be demonstrated only at the time that the costs of these activities are estimated (i.e., at the time of remedy selection). The proposal would not Include coverage requirements for the potential costs of corrective action for unknown releases and requested comments on this decision. The Agency also requested information concerning appropriate methods for estimating the costs of corrective action for other than known releases. EPA received several comments supporting its decision to require financial assurance for corrective action for known releases only and for deferring financial responsibility requirements for potential future releases. Commenters agreed that it would be difficult to set an appropriate level of coverage for corrective action for future releases because it would be difficult to predict the probability and costs associated with a release, which are highly dependent on Ioeation- specific and operation -specific factors. One commenter stated that financial assurance requirements for other than known releases are unnecess ary because financial assurance will be required once the release is discovered. Another commenter suggested that additional financial responsibility requirements for corrective action would be more appropriately established by States because they have greater familiarity with the site-specific conditions within their jurisdictions. A few commenters believed that the scope of the financial assurance requirements should be expanded to include additional assurances, declaring that EPA should prevent the possibility that unanticipated corrective action costs could be left unfunded by requiring financial assurance for these costs. These commenters did not, however, suggest methods for establishing levels of coverage. The Agency agrees with the majority of commenters that current data are not adequate to accurately establish national uniform levels of coverage for future corrective actions. Moreover, it believes that an approach to establishing such coverage levels which relies upon a facility risk analysis could require considerable time and expense to complete, and could thereby delay the implementation of the basic financial assurance regulations. Therefore, the Agency is not at this time promulgating financial assurance requirements for other than known releases. While the Agency recognizes that the possibility exists that unanticipated corrective action costs may go unfunded, it believes that the requirements for financial assurance for known corrective action being promulgated today will go far towards minimizing any potential unfunded obligations. The requirements promulgated today will ensure that the costs of remediation of releases are borne by the appropriate facility owner or operator. While the promulgation of uniform national requirements for corrective action for unknown releases applicable in all States will require a substantial amount of additional analysis, States may wish to consider whether data are already available in their jurisdictions to support state-speci#.icrulemakings. Today's rule does not preclude States from promulgating their own requirements for corrective action for other than known releases If they deem such requirements necessary and appropriate supplementais to today's requirements. b. Financial Assurance for Third -Party Liability In the preamble to the proposed rule, the Agency indicated that it considered, but chose to defer, adoption of financial responsibility requirements for third - party liability claims arising from off- site ffsite personal injury or property damage. The reasoning for this deferral was two- fold. First, as discussed in the preamble, the Agency had insufficient data to, set appropriate levels of third -party liability coverage for MSWLFs. Second, the Agency was concerned that owners and operators of MSWLFs would encounter difficulties in obtaining financial assurance mechanisms to fulfill this requirement. The Agency requested data and other information regarding - appropriate levels of third -party liability coverage. While a few commenters recommended that the financial assurance requirements include requirements for third -party liability coverage, most of the comments supported EPA's decision to defer third - party liability financial assurance requirements. Commenters noted that both the likelihood and the size of third - party awards are variable and difficult to predict. Due to the uncertainty of the costs of liability claims, some commenters said that additional time and data would be necessary for both the insurance industry and MSWLF owners and operators to respond to the need for liability coverage. Other commenters pointed•out that some MSWLFs may never face third party IiabiIity claims, and suggested that the Agency limit itself to requiring financial assurance only for expenses that are certain to be incurred. Another commenter stated that it is more appropriate for States to establish third - party liability requirements, since third - party liability claims are defined under applicable State law. Federal Register] Val. 56, No. 196 / Wednesday, October 9, 1591 / Rules and Regulations 51109 Upon consideration of the continents regarding this issue, the Agency determined that the conditions that originally led to the decision to defer third -party liability coverage requirements continue to prevail. The Agency therefore is continuing to defer promulgation of any requirement. While the Agency received some information from one commenter related to third - party liability coverage levels, this information did act Include data relevant to setting uniform national coverage levels, and the Agency has been unable to gather sufficient data from other sources. As discussed in the preamble to the proposal, some data concerning the types of off-site property damage and bodily injury that could be associated with the operation of a MSWLF are currently available. The inherent limitations of these data, however, do not provide the Agency with an adequate basis upon which to determine appropriate coverage levels. The available data are largely concentrated on only one of the hazards posed by MSWLFs, namely; methane gas explosions. Other hazards for which fewer data are currently available (e.g.,, releases to ground and surface water) could also contribute significantly to potential liabilities faced by owners and operators ofMSWI.Fs and therefore must be given consideration in the development of third -party liability coverage levels. in addition, the data on methane gas explosions did not include the costs of damages resulting from these accidents at MSWLFs. The Agency, therefore-, still lacks sufficient basis to establish specific coverage levels for MSWLFs. The Agency's second reason. for deferring third -party liability also continues to prevail. Insurance coverage for MSWLFs continues to be Iimited. Owners and operators'of MSWLFs may therefore encounter difficulties in obtaining third -party liability coverage. The Agency is currently aware of only two insurers who actively provide coverage to MSWLFs. While some other insurers are entering the market, experience in providing this type of coverage is even more limited than experience in providing coverage for hazardous waste facilities. The Agency believes, however, that such an assurance market, whether for insurance or another mechanism provided by a third party, will begin to develop following promulgation of today's final technical criteria imposing uniform design and operating standards that In turn will allow insurers to better assess the risks associated with MSWLFs, in addition, such a deferral will allow States a period during which State- sponsored mechanisms can be developed to assist owners and operators of ib1SWLFs in complying with financial assurance requirements. These State-sponsored mechanisms might then be adopted for coverage of third -party liability requirements. Given that a majority of owners and operators of MSWLFs are local government entities, the Agency believes that State governments could become actively involved in the developra'ent and sponsorship of financial assurance mechanisms for third -party liability or in providing financial assurance through various funding schemes. Today's regulation allows States to explore and implement alternatives to traditional mechanisms for compliance with closure and post - closure care and corrective action financial assurance requirements. These mechanisms may then be applicable if third -party liability coverage is required in the future or if an approved State wishes to require financial responsibility for third -party liability coverage.. 5. Sections 258.7.1(b), 258.72(b), and - 258 73(h) nd258.73(h) Release From Financial Assurance Requirements Linder the proposed rule; owners -and operators would be released from financial assurance requirements for closure, post -closure care, and corrective action following State approval of the certifications of completion of these activities submitted under § § 258.30(e), 2,98.31(f), and 258.58 (f) and (g). Following the receipt of the certification from the owner or operator verifying that closure, post -closure care, or corrective action had been completed in accordance with the approved plans, the State would be required to notify the owner or operator in writing that he no longer was required to demonstrate financial responsibility for these activities. If the State had reason to. believe that the activities had not been conducted in accordance with the.. approved plan, the State would notify the owner or operator and include a detailed statement of the reasons for not releasing the owner.or operator from the financial assurance requirements. While the Agency did not receive comments on the actual provisions for release from the financial assurance requirements„two commenters contended that funds should never be released because of the perpetual possibility of failure. Other commenters raised a related issue that owners or operators should be allowed to receive reimbursements for closure, post -closure care or corrective action costs as they are incurred. These Commenters further argued that particularly for owners or operators using instruments that require the owner or operator to set funds aside (e.g., a trust fund), withholding the release of such funds until all activities have been completed would effectively require owners and operators to provide twice the amount of funds necessary to meet expenses. The Agency decided to finalize the procedures for release from financial assurance requirements substantially as proposed with one change in the procedures for release for closure financial assurance and with minor changes to account for the aelf ._ implementing approach of the final rule. Owners and operators will be released from financial assurance requirements upon demonstrating compliance with the certification requirements for closure, . post -closure care, -or corrective action as specified in §§ 258.80(h), 258.(31 (e), or 258.58.(f) and (g). Consistent with the self -implementing approach of the final rule, the final rule includes the: . , requirement that owners or operators also must notify the State that the. required certifications are iri the'facility operating record and that financial assurance is no longer being -maintained. . As a condition of being released from closure financiabassurance, the Agency is adding the additional requirement that owners or operators must notify the State that they have recorded the notation on the deed to property as required in § 258.60(i) and have included . a copy of the notation in the facility operating record. In general, the Agency continues to believe that owners and operators should be released from financial assurance requirements only upon certification that closure, post -closure care andjor'corrective action activities have been completed. Unless the owner or operator remains subject to financial assurance requirements until closure, post -closure care and/or corrective action have been certified, the Agency cannot be assured that funds will be available if additional activities. are required to comply with the technical requirements. The Agency, however, does not believe that the poteritial benefits (e.g., potential governmental expenditures avoided) derived from indefinite maintenance of financial assurance sufficiently outweigh the costs incurred by owner or operator in maintaining such assurances. Performance of the. required activities in conformance with the plan and subsequent certification by a qualified engineer of those activities upon 51110 Federal Register / Vol. 50, No. 196 -/ Wednesday, October 9, 1991 / Rules and Regulations completion wall minimiae the probability that additional financial assurance will be needed. The Agency agrees with commenters that in cases where an owner or operator has actually net funds aside in a mechanism dedicated to the payment of such costs (e.g., in a trust fund, and in. some cases, closure and post -closure Insurance), it maybe desirable to allow the owner or operator to be reimbursed, for costs of closure, post -closure care, and corrective action activities as they are incurred prior to final certification, In order to minimize the financial burden to the owner or operator. Therefore, the rule specifically provides for reimbursement from trust funds or insurance policies in cases where aufiiciont funds remain to cover any remaining cost, Requests for reimbursement must be made diractly to the trustee or the insurer. If sufficient funds would remain In the trust to cove's remaining costs, the trustee may grant the request (see also discussion of the trust fund and insurance in section 7.a below), The final rule also requires that the owner or operator record the notation on the deed to the property indicating that the property has been used as a MSWLF and Its future use is restricted as a condition of being released from' financial assurance requirements for closure. The Agency added this provision to provide a financial Incentive to help ensure that the notation is properly filed. S. Sections 258.71(0), 258.72(6), and 256.73(6) CostEsdmates The Agency proposed in 15 258.32 (b); (c), end (d) that the owner or operator of each MSWLF would develop written site -Specific estimates of the costs of conducting closure, post -closure care, and corrective action for known releases. These cost estimates would be the basis for determining the amount of financial assurance required under § 4 258.32 Co. (g), and (h). Commenters raised a number of Issues and questions concerning the preparation of cost . estimates. a. Deadlines and Procedures for Preparing Coat Estimates The proposed rule did not include specific procedures or deadlines for preparing cost estimates. The development of such requirements was left to the States. Anumber of commenters stated that FPA should develop guidance tailored specifically to estimating costs of closure and post -closure care of MSWLFs to facilitate the preparation of estimate and Ensure more consistency. One cam menter argued that unless the rule included more detail on preparing cost estimates, States would use the guidance document developed for subtitle C facilities, which they argued is inappropriate for MS%rLFs. Two commenters stated that procedures and deadlines forpreparirig cost estimates are not necessary. The Agency disagrees with commenters who felt that the subtitle C guidance would be inappropriate for MSWLFs.,Cost estimating procedures for construction and engineering activities like those that would be required for closure, past -closure care, and corrective action are relatively uniform, and procedures developed for estimating costs for subtitle C facilities should be easily adopted to account for differences between hazardcus and solid waste landfills. The Agency believes, therefore, that the guidance documents developed for subtitle i✓ could provide a useful model for today's - rule: The Agency also believes that it is unnecessary to include specific deadlines for preparing cost estimates in the rule. Since cost estimates must be prepared in order to establish the amount of financial assurance required, the Agency believes that the deadline for obtaining financial assurance will ensure that cost estimates will be prepared in a timely manner. However, consistent with the self -implementing approach of the final rule, the Agency has added to the final rule a requirement that owners or operators must notify the State Director that the cost estimates have been placed in the operating record. b. Third -party Costs The proposed rule would require cost estimates to account for the costs, in current dollars, of hiring a third party to conduct the activities described in the closure and poet closure plans and in the corrective action program as specified in § § 258.30, 258.31, and 258.58. The Agency received a -number of comments on the requirement that cost estimates be based on the cost of hiring a third party to perform the required activities. While one commenter expressed support for this provision as proposed, several argued that using third -party costs for cost estimates would be burdensome and unnecessary. Some commenters stated that local governments, in'particular, should be able to base cost estimates on the cost of performing the work themselves because they maintain a broad range of In-house technical and engineering capabilities, which could be used to perform closure,post-cloeure care, and corrective action. They also contended that unlike private operators, even if a local government were to go bankrupt, it could not escape its obligations and would eventually use its own personnel to conduct closure and post -closure care. After considering these comments, the Agency continues to believe that it is appropriate to base cost estimates on the costs of hiring a third party to conduct closure, past -closure care and corrective action. This provision ensures that adequate funds will be available to hire a third party to carry out the necessary activities in the event that the owner or operator declares bankruptcy or does not have all of the technical expertise necessary. In addition, the Agency does not agree that local governments will always be able to use their own personnel to conduct closure and post -closure care. For example, in the event of bankruptcy or other financial hardship, a local government may be required to reduce the number of local government employees, including employees managing the local . . government's MSWLF and other staff who might be capable of conducting closura, post -closure care or corrective, action activities. The local government would, under such circumstances, be forced to obtain the servicas of third - parties to carry out closure, past -closure. care, and corrective action activities. Furthermore, the requirement'to base cost•estimates on third -party costs will not impose a significant burden on an owner or operator. The Agency has studied the differences between first and third -party costs for closure In the context of Subtitle C and has found that the costs are not significantly different. For example, the cost of hiring a third party to close a landfill that handles 2,000 tons of waste per year is not significantly greater (less thaw ten percent) than the costs that would be incurred if the owner or operator of the landfill performed the closure activities.. Because the activities that would be performed for closure, post -closure care and corrective action would be similar for all MSWLFs, the Agency believes that third -party costs will not be significantly higher for these units as well. c. Sections 258.71(a)(1), 258.72(a)(1), and 258.73(a) Scope of Costs To Be Covered in Cost Estimates The proposed rale'would require closure andpost-closure cost estimates to be based on the cost of closing the MSWLF at the point in the landfill's active life when the extent and manner of its operation would make closure and ._ Federal'Register / Vol. 58, No. 196 / Wednesday, October 9,.1991 /'Rules and Regulations 51111 post -closure care (as described in the. closure and post -closure plans) the most expensive. For example, if an owner or operator operates the MSWLF on a cell - by -cell basis, the estimate should account for closing the maximum number of cells open at any one time. Several commenters objected to calculating closure and post -closure cost estimates based on the most expensive point of performing these activities, arguing that the requirement would be burdensome. One commenter noted that the requirement does `not account for the fact that closure of a MSWLF is an ongoing process that is part of dally operation. This commenter argued that because the actual, area of a landfill increases quickly for a short time after a landfill is opened and deareases'soon _ afterwards as partial closure is begun, basing cost estimates on the maximum cost of closure prior to the start of any partial closure activities, would result in closure cost estimates that will quickly become excessive, The Agency considered the commente?s concerns and is clarifying in the final rule its intent regarding the scope of cost to be included in cost estimates. The Agency continues to believe that the cost estimates must be high enough to ensure that adequate funds always are available to conduct the required activities whenever they are required, including premature closures. However, the Agency agrees with commenters that the cost estimates need not include the costs of closing Iandfill phases that have already undergone partial closure. Therefore, the Agency is adding language to the final rule to clarify that the closure cost estimate must account for the most expensive costs of closing the maximum area of the MSWLF that would ever need to be closed at any onetime'. For example, an owner or operator of a MSWLF, which is constructed using a cellular design, may choose to open only one cell of the landfill at a time, close the cell completely (i.e., with installation of a final cap) once it filled, and only then to open a new cell. In this case, the cost estimate would include the posts of closing one cell. Therefore, owners and operators of facilities that close units as 'they are filled (i.e., conduct partial closures) may be allowed to -.. demonstrate less financial assurance than those that close all units simultaneously because the maximum costs of closure at any time will be less than if the entire MSWLF was closed simultaneously, d. Sections 258.71(a)(2), 258.72(a)(2), and 258.73(a)(1) _ Adjustment of Cost Estimates for Inflation The proposed rule would require the closure, post -closure, and corrective action cost estimates to be adjusted annually for inflation until the entire landfill had been closed to ensure that over time, cost estimates would continue to reflect the actual costs of performing closure, post -closure care or corrective action. Corrective action costestimates were to be updated for inflation until the end of the corrective action period even if the corrective action extended beyond closure of the MSWLF. The proposed rule left to the States the responsibility for establishing procedures for updating cost estimates. The proposed rule also requested. comments on the desirability of requiring annual adjustments of the - post -closure cost estimates during the post -closure care period. A number of commenters supported the proposal to require annual inflation adjustments to the post -closure care cost estimate only until closure, while a few commenters supported adding a provision that would require annual inflation adjustments until the end of the post -closure care period. Some - commenters suggested periodic (e. g., every three or five years) rather than annual updates to the cost estimates, arguing that the expense involved in the. updating procedure and the likelihood that costs would not be substantially changed by inflation made.annual updates inappropriate and unnecessary. Upon consideration of the public comments, the Agency finalized the requirements as proposed with a change to the requirements for post -closure cost estimates discussed below. The Agency continues to believe that the. uncertainties inherent in inflation and interest rates make an annual cost update Highly desirable. If the added costs due to inflation are not fully accounted for in annually updated cost estimates, adequate funds may not be available when needed. Moreover, the Agency does not believe that updating cost estimatesu to account for inflation will be difficult or costly. The Agency suggests the use of inflation factors that are readily available -to, owners and operators (e.g., the implicit Price Deflator for Gross National Product as published in the "Survey of Current Business," a Department of Commerce publication) or specify other inflation factors that must be used to adjust the estimates. Owners and operators may wish to refer to the provisions in 40 CFR 254.142 and 264.144 and the accompanying guidance.materials when making the updates. The Agency has no evidence from its experience with the Subtitle C program, that annual updates for inflation have been costly or burdensome, or that they have caused implementation problems. . The Agency agrees with commenters who suggested that post-closurecost estimates should be updated until the end'of the post -closure care period, and consequently, the Agency has decided to impose such a requirement in today's rule. Following closure, the owner or operator must continue to update the post -closure cost estimate for inflation for the duration of the post -closure care. period. While the Agency recognizes that on certain rare occasions, an owner or operator may not be available (e. g., the company operating the'Iandfill may no longer be in business following closure) to update the estimates, thus making implementation difficult, the Agency ilelieves that in most cases, an. owner or operator will be available. The majority of MSWLFs. are operated by local governments. These local: ° ; . governments are unlikely to disappear following closure of their landfills because they exist. to perform a dumber of other functions. The Agency does not believe that this change.+will prove burdensome. ' e. Sections 258.71(a)(3), 258.72(a)(3), and 258.73(a)(2) Adjustment of Cosi Estimates Due to Plan or Facility Changes The proposed rule would require the owner or operator to increase the cost . estimates for closure and post -closure care whenever changes to the closure and post -closure plans or changes at the facility (e.g., increases in design capacity, increases in the maximum area open, more extensive monitoring requirements) would'eause the estimated cost to increase (§§ 258.32 (b)(3), and (c)(3)). Consistent with the October 24,1986, proposed Subtitle C rule requiring financial assurance for corrective action, the proposal specified that an owner or operator would be required to increase a corrective action cost estimate if, at any time during the corrective action period, a change in the corrective action program or in facility conditions would, cause corrective action costs to exceed the cost estimate (§ 258.32[d) (2)). Whenever a cost estimate is increased; the owner or .operator would increase the level of financial assurance required under sections § § 258.32 (f), (g), and (h). The proposed rule in § § 258.32 (b)(4) and (c)(4) would allow the owner or operator to request a reduction in the amount of the cost estimate if the owner or operator could demonstrate that 51112 Federal Register f Vol. 58, No. 196 / Wednesday, October 9, x991 f Rules and Regulations changes in facility conditions would result In a decrease in the maximum costs of closure (e.g., partial closure of the landfill that reduces the maximum area of the landfill that ever reeds to be closed), or post -closure care (e.g., less maintenance Is required during the later yearn of the pest -closure care period). Cost estimates for corrective action could be reduced if the owner or operator could demonstrate that the estimate'exceeds the maximum remaining costs of corrective action (§ 258.32(d)(3)), The Agency did not propose procedures or deadlines for adjusting cost estimates, but did request comments on whether the revised criteria should include such procedures. The Agency received no comments on the requirement that cost estimates ba adjusted to account for changes in facility operation or changes in the facility closure, post -closure care or corrective action plans. Consistent with the self -implementing approach of today's. rule, the Agency is finalizing the requirements for adjustments to cost estimates with certainprocedural changes. If the current cost estimate exceeds the maximum remaining costs of closure, post-closura care or corrective action, whichever is applicable, the owner or operator may decrease the cost estimate if he notifies the State of the decrease in the coat estimate and places a justification for the decrease In the facility operating record. L Section 258.72(a) Calculation of Post- Closure ostClosure Costs The proposed rule would require post - closure care activities to be carried out over a two-phase period. Phase I would last 30 years and the length. of Phase 11 would be established by the States. The proposed rule would require the post - closure cost estimate for each phase to be based directly on the activities described In the approved post -closure care plan required under § 258.31 Cc), and to account for the post -closure care costa of the entire landfill. The estimate for each phase would be�derfvad by multiplying the annual costs (in current dollars) of past -closure care activities by the number of years of care required in that phase. Because not all post -closure care activities are conducted on an annual basis (e.g., cap replacement or monitoring well replacement may only be required periodically), the preamble to the proposal clarified that the total post -closure cost estimate should include these periodic costs as well as the annual costs. Several commenters were concerned with the duration of the post -closure care financial assurance requirements_ Some commenters believed that financial assurance for the entire 30 year Phase -1 post -closure period was unnecessary. Others suggested that the cost of financial assurance for the entire 30 year period would place an excessive burden on owneis and operators. Suggestions for alternative periods included five and ten years end the number of years of operating life of the facility remaining on the effective date of the regulations. Another commenter said that the costs of post -closure maintenance decline as a closed Iandfill stabilizes, and that the owner or opera torshouldbe allowed to take this Into account when making his post- closure ostclosure cost estimate, The Agency believes that to fulfill the goals of the financial assurance requirements, the total estimated costs of post -closure care must be ' demonstrated. Requiring financial assurance for only five to ten years or for the number of years remaining in the facility's operating life would not ensure that funds are available to complate post -closure care in the event that the owner or operator is unable or unwilling to do so. As discussed in Appendix. F of the preamble, the proposed two -phased post -closure care peiiodhas been eliminated in the final rule in favor of one 30 -year period with the option available, in approved States, to reduce or increase the length of the period as necessary to protect human health and the environment. For most owners and operators, therefore, financial assurance will only be required for 30 years of post -closure care, in approved States, where State -specific or site-specific factors justify a reduction in the 30 -year period, owners and operators will be required to provide financial assurance for the reduced period only. The Agency does not believe that obtaining financial responsibility for 30 years of post - closure care will impose a significant additional burden on owners and operators. Many. States already require some financial assurance for post- closure ostclosure care: therefore, MSWI.,Fs in these States should already be demonstrating financial assurance for the costs of post -closure activities. The Agency agrees with the commenter that in some cases the costs of post -closure care maintenance may decline as the closed landfill stabilizes. The Agency has always intended that the post -closure cost estimate account for changes in costs over the post- - closure care period. In its guidance on preparing post -closure cost estimates for hazardous waste facilities the Agency stated that the estimates should include costs required annually and costs that will occur less frequently during the post -closure care period (RCR4 Guidance Manual for subpart G Closure and Post -Closure Care Standards and subpart H Cost Estimating Requirements, OSVM Policy Directive #5478.04-5, January 1987, pp. 4-7)• Consistent with this intent, today's final rule requires that the post -closure care cost estimate account for the total costs of past -closure care, including both those costs that will be incurred annually and those that occur only periodically. This change will allow owners and operators to prepare cost estimates that reflect any costs of post - closure care that decline over time. If the owner or operator can demonstrate in the post -closure plan that the level of maintenance activities required will decline over time, then the corresponding cost estimaie can reflect. the casts of reduced care in later years. Similarly, if the post -closure plan is revised during the post -closure care period because less extensive maintenance is required, the cost estimate may'also be revised. The cost . estimate also maybe revised during the post -closure care period to reflect that fewer years of past -closure care remain. However, in considering reductions to the cost estimate, it is important to consider carefully potential future costo such as ground -water monitoring well replacement costs or extensive cover repairs that would not be required on an annual basis. S. Section 258.73(a) Corrective Action Cost Estimate The Agency proposed that a corrective'action cost estimate be prepared once a release has been detected and the owner or operator is required to undertake corrective action. This estimate would be calculated by multiplying the annual costs of corrective action by the number of years required to complete fhe corrective action program. The owner or operator would then demonstrate financial assurance for the amount of the corrective action cost estimate. The Agency received a number of comments on corrective action cost estimates and financial assurance requirements. Some commenters stated that the proposed financial assurance requirements for corrective action were too s tringent and that the amount of the cost estimate should be reduced by ' . reducing the period for which financial assurance for corrective -action must be demonstrated. One commenter suggested. that the requirements should explicitly 6 tate that assured funds. for ;Federal :Re isttYr.s/ VTal: R, No. 106 i/ Wednesday, 9cto bier 9, 1991 / ;Rules' �ana Regdattans 51113 corrective a dtion.must'be :instinct from other assured funds. Dne rommeriterazguediffia it,,would be inappropriate;to esfima'te.corredtfve actionzosts Auring•the.planning-stage:df a corrective:azrtiori because;estimgfimg remediation no9ts'1spassible;only,- fter corrective:action-romedies bav-e•been specified.: Another comment ennoted tl a t ithe proposed approach to developing the corredtive.adtionr as 1too complicated andrsuggested'that itwonld be.srmpler.and more :accurate to base cost esfizrrates un,the?rojected real cost of;the action. The Agency considered the commenters suggestions=and is flnalhIng the •cosi .estimating requiremeiit,for Rnancial assurance :for corrective.actionwith Due cbange " discussea below. The Aganc_y,believes:it is necessary fhatthe toste,66mate reflect theloitEd costs fha:t-Will be '.. incurred for ,the:entire-corredtive action periodd inrorderfto adequately prdiedt human;'health:and,ihe'.enugr6n' meth. Reducing the pe6od bf time rover Which ' the castestimate is,calculated wouldnat provide adequate assurance .of coruecti-ve.action costsIiathe event that the towner ormperator is uhalile or - unwilling to continue to finance cotrectiveaction.'(Tf:axrust.fzmdds used to demonstrate ,financial:assnrance, payments,mdubemtadeiotoifhehust - over tbrTirst1alf ofihe.corrective action perxad`.to:coverthe .costs 6fithe second-balf, Adequateassurancels provided,because.aetual;funds;are bding lilaced in the :trust Tuna to ensure -that future,correetivr':axtinnactivities 3niill be paid-for.,Th'isU discussed=- greater. detail;im.sectionnra-belpwL.) Xhe Agency does, however, agree -'that It,is. . inappropriate, in.mo4cases, ;to develop correctivB action.coat,,estimates :prior to selecitian sof 1he:remedy_'Seotion -258.74 of Ieday'.s rule requires thtit:finaneial assurance be.established•wrthin-120 days after the remedy issdlected. This should provide ndequa to lime for overs -.'and operators :io-develop a Lost estimate based Don',the'e1edted:ra merry. and demonstrate financial assurance. The Agency agrees with the comment: that financial assurance forcorreative action should be,digtinotfrom1ha'tfor closure andp_osi-tl'oaure,cais?.,Althattgh owners amd.operators mayrchaoseto establish; f`inant ial:assuiance using. single fiaanFialatedhartism'fwr.same combination,of,closure, post-.clasure .carr, -'and corrective-action,;nwners and Operators shmdd distinguish the.amn°unt of fundsassuredfor:each.activily;under a givenffiitanraal;assurnrrae:xtteclzaziism: . While explicitlyxegitiredby,:Ihe.rrile, . this;is,neeekssary'to •ensuae.that!the amount sof funds ,assured Is sdfficierA:.to cmrer:the,costs of. each.activity;when neeaDd.: in zaraphance'with,the performance :criteria U:258:74(x)). The Agency o1 p agrees that the corrective action cost -estimate should . be based.on,,the,actual:costs.a£ the action and is Snalizing .the Map reguire ,thait the -corrective .action •cost estimate accouixt.for•the'tatai costa,of corrective -action. The;Agency wishes #o clarify that the .cost estimate must account for-�th.e.casts.ofrall ac6ikies required dudng,the&' ration of -the corrective action. In developing the estimate, the owner or operator must take'into accoutitthe casts of,acfions required annually aurin the period as well as those requireaperiodigally,over the peaD.& i'Ifis'approach for-es,.timating costs is consls'iehl.with-ffie.approach used -for devEloping"Past-closure cosi estimates -discussed,in`more-delffld above. The Agency's -experience with the subtifle`Cpost;closure care, program, v+ hichhas'sinMar•requirements to today's rule, suggests that this -method of. calculating,corredtiveraction costs has noumposedoweasonable burdens=on owners and.operators_ h. 5edtions 258.7.1ja), s2S&72 jQ,: and. 258.73,(ao :Dost Eifimate.Recordkeepir}g and Review For recofdkeeping,pitrposes, .the proposed -ode Wouldxequire .the towner or operator.to nraintain•e4 pled -,of-the mos t:recent •cost,estianates.for..closum poet-olosure;car-e, and corrective action for knownseleeses :at -the landfill until the owner or operator has -been released from, financial assurance -Yor that activity under §,§ 258.32 (fl, .(g),.and (h). ' Commetiters :suggested, several . additionalxequrremerits concertiing'the :review of cost,eErfimates.-One commenter suDgestea.'that cost estirrrates shouldbe available 'forpu'Slia review, •and'thatitiivould be cliffiicuit'for ihelrubhc to review.coatzeshniates at the'landfili. Another commenter suggested 'that States Aould be resporiszlxle forieviewing clostzre,post- closure care ,and corrective aafion-cost . estimates, �v)hrle ather:oommenters stated thaREPA..slrodidaetaintha� responsibility. Consistent With'ihe:1361f-Implemenfing approach of today's RaalTule,'the ' Agency'is ptraTIiing a somewhat amended mecordkeeping4ind review requiremerits.'Under.the final rule, owners and,uperators arr-e'Lequired to notiiy;the,.State Director•that the •coat estirnates'haxe beertfiledin-the - operatinwrecordlof the :fadility.AG. ;required :under.§ •25$.29(6). of':taday,'s. rale.bwners:ornper lors:also=tmust- furnish these estimates upon-mquest,or make them,available Eft--AHxeasonabl-e times for.inapedfion'by the.State Director.'Once;theStatels inpossession of:suchrecords, the publicanayob m access to these aecords=ftough State Freedom,of.-I format on proceedings. The Agencybeiieues:that?these provisions wild^providefslif£tcierit• opportunity,far,publf cxeView �of'fhe tcos t estima'te.'The `firiArtile -does not require S.ta:teireuiewrof�cost•eatimates consistent vAth the serf implementingma!ture df'the rule. LD I wners,and OperatorsWiffi 4fult4ile Facilities The,proposedrule wouldxequire owners'ancd,operators lo'base,the amourit;GT futaneclal'assurance required on:facility-specific cost•estimartes..If owners .andoperators uvmt miilfip'le fadilities, the amount=of=financial assurance wou'ld'berequal-to'Ehe sum;of albcost estimates st ezitih'facility. 'd'-vo,commetiterstexpressecd concern about'the -effectrof ;requiring cumulative cove;a_ge-of ratiltiple facilities managed by=fhe sam wowner or operator. 0,he commeriterstated I.Eit the Agency should lavdld,makmg thwassunIption thein cases *hexa multiple `fauirifies aremw.ned by one aritfty, TMladilitim will beregziirea.'to-dln'serat'.-the same time. This:coumrenter suggested fhdt'fhe . Agency :ro rdider-an to ctuadal'Appmach that °tvottTd �talceintu rancountthe . ' relativelysmdli proba hfl#y'fhat all. facilities -will c'Iose nrrequire corredtive action'at :`Eliesame time, and RIlow `for cost-estimates'thatdo ndt•account for the total costs of closing'ali lath ffles siimultaneausly. Another mommenter suggested -that:sub'title t:requlremetits for financial responsibility for ' ' under. ouna-gtorage tanks -would provide -a mo -del for, this #ype.vf approach. ;(Sub title.:Lrequires'covetege of thirdpartyliabilityand;on-site cleanup:costs;resultingi£rom potential future xeleases, from. pEitrdeum underground storage tanks.Mnaanial assurance levels are sot;for$iffereiit classes of faoilities.;based:on;typexaf operafipn and numberto€'tanks-owned or operated.] The Agencyconsildered1he commwxfters'.concerns, :bzit;I's;aelo}pting the .rule :as;pioposed. �fovyriers •vr. . operators own -or operate multiple facilities, the amount of financial resp onsib5li;tymiuAt be"equzilifo (he -sum of all castes€ mates,dt.�eadhfaoil ty."ihe Agencyrdecidedito iiefer;adt on on spedia'Lomt;e'stitnaling requiremerits app`Iicalile to*wners and�operators of mult'iple.facrlifies. The Issue -df -whether, -MM'ers.amzl,operators dffaeilities regu'la e' d under=titipiespragrams 511.1.4 Federal Register / Vol. 56, No. 196 / Wednesday, October 9,. 1991 / Rules and Regulations should be exempt from the general requirement to provide financial assurance for the total costs of closing all of their facilities simultaneously has Implications for the financial responsibility programs under subtitles C, D. and I, and as such, goes substantially beyond the scope of today's rulemaking. Therefore, further study of the issue in the context of all applicable RCRA programs is necessary before exempting owners or operators of multiple facilities from these requirements. The Agency believes that the subtitle I approach, for setting assurance levels would be inappropriate for MSWLFs. The costs of potential future releases from tanks requiring assurance under subtitle I are costs that may or may not be Incurred by the owner or operator, while the costs of closure, past -closure care, and corrective action for known releases subject to financial assurance under part 258 are certain to be incurred. The greater certainty of these costs makes them difficult to aggregate in a manner similar to the subtitle I approach while maintaining adequate protection of human health and the environment and therefore justifies the more stringent requirements. In addition, under subtitle I, the amount of financial assurance required is uniform for all tanks owned or operated by a single entity. This also serves to facilitate aggregation of costs In a manner that would be difficult and Inappropriate for MSWLFs, where closure, post -closure care and corrective action costs vary among the facilities of one owner or operator. 7. Section 258.74 Performance Standard fax Financial Assurance a. Performance Standard Approach The proposed rule would not specify the types of financial assurance mechanisms allowed. Instead, the proposal specified in § 258.32(e) a performance standard for a financial assurance program that must be satisfied to demonstrate compliance with tha financ€al assurance requirements under 5 § 258.32 (f), (g), and N. The performance standard was designed to ensure that mechanisms allowed by the States (e,g„ trust funds, letters of credit, State Funds, etc.) would satisfy the overall goals of financial assurance. As proposed, the performance standard would permit States to authorize use of financial mechanisms that met five criteria: (1) Ensure that the amount of funds assured is sufficient to cover the costs of closure, post -closure care, and corrective action for known releases when needed; (2) ensure that funds will be available in a timely fashion when needed; (31 guarantee the availability of the required amount of coverage from the effective date of these requirements or prior to the initial receipt of solid waste, whichever is later, until the owner or operator is released from financial assurance requirements under § § 253.32 ff), (g), (h); (4) provide flexibility to the owner or operator for demonstrating compliance with the financial assurance requirements; and (5) be legally valid, binding and enforceable under State and Federal law. The preamble to the proposed rule noted that the financial assurance mechanisms currently authorized under subtitle's C and I, if properly drafted, would satisfy these performance criteria. The /agency requested comments on the proposed financial assurance performance standard, including the use of a performance standard in lieu of specifying acceptable mechanisms. A number of commenters agreed with EPA's decision not to specify the types of financial assurance mechanisms that would be allowed.. These commenters noted that, the variability in State regulation of the banking and insurance industries would make specification of financial assurance mechanisms difficult to develop at the national level. Several other commenters stated that the financial assurance performance standards, as proposed, represent the minimum standards that should be required of MSWLF owners and operators in all States. Many other commenters expressed concern that the performance standard lacked sufficient detail to guide States in the development and implementation of the financial assurance requirements with any consistency among States. Several commenters urged the Agency to require States to allow the use of all financial assurance mechanisms authorized under subtitls C. Specifically, many commenters argued that if interpreted strictly, EPA's performance standard requiring funds to be available from the effective date of the regulations or prior to the initial receipt of solid waste, whichever is later, could be interpreted to preclude a trust fund with a pay -in period, which is allowable under subtitle C. These commenters stated that fully funded trusts are not affordable, and other mechanisms are not available to many local governments and small businesses. Therefore, they argued, i#,trust funds with pay -in periods are not allowed, many landfills could be forced to close. Other commenters requested clarification of whether the subtitle C financial test "multiples" requirement- i.e., the owner or operator must demonstrate tangible net worth and working capital equal to six times the financial responsibility obligations assured—would apply to MSWLF owners and operators. EPA was urged either to eliminate the requirement or. to apply it to issuers of financial instruments (e. g., banks, insurance companies) to ensure that these issuers of third -party mechanisms are judged on the same basis as owners and operators using the financial test. The Agency also received comments expressing concern over the stability of institutions, such as banks and insurers, issuing financial assurance instruments. One commenter recommended that only cash, surety bonds, or certificates of deposit be allowed for demonstrating financial responsibility for corrective action. This commenter argued that unlike closure or post -closure care, the costs of corrective action are likely to force many owners and operators out of business, thereby necessitating the use of assurance mechanisms that are not Iinked to a company's future financial health. The Agency agrees with commenters that the performance standard, as proposed, did not provide sufficient guidance to ensure that financial mechanisms obtained in compliance with the rule would be adequate. This lack of specificity in the proposed performance criteria could have resulted in significant inconsistencies among State programs, The Agency, therefore, has adopted a modified performance standard approach to financial assurance in the final rule. This approach consists of a revised set of performance standards and specified financial mechanisms that may be used to demonstrate financial assurance. The rule also specifies minimum provisions of each mechanism that must be satisfied to be considered an acceptable mecbanism, including minimum qualifications for providers of assurance, The revised performance criteria in today's rule are identical to those described In the proposed rule (renumbered in the final rule as § 256,74(1)), with the exception of the criterion in proposed § 258.32(s)(4) specifying that States consider flexibility to the owner or operator where developing financial. assurance requirements, This criterion has been deleted from the final rule because it was redundant with the discussion of State approved mechanisms, While the Taderal Register j Vbl. 56, ,No, 1.96 ,/ Wednesday, October 9, 1991 / Rules and rgegulations 51115 Agency.continues to .belleve that a .performance stanaard-hasad apprbacli is.most apprnpriete:to i lowEtates sufficient'flexibility to sa'lect and 1611or theirXiinancial assuranceprogras'to allow as.marim y gptions:for.coippliance as posdlbl%1he.peiformanee criteria should ensure that all allowable financiaI'medhanisms vallprovide.`ior adcquate'finandial assurance. All iA lbexuechanisms currently allowedundersubtitle Care.authodzed tobe-used'lo comply -wiffi-the imancial assurance Tequirements inlodaf s rule;. In particular, the Agency specifically allows -the use of gradually=funded°trust funds to •demonstrate financial .assurance Tor�the•costs of closure, -post - closure care, and-corrective•action.'The Agency expects zmajority-of approved .states wiIllridude tlxese-specified mechanisms, ftgplher-with�other mechanisms ,as apprbpriate, in theirlist of autheiixed compliance options. ilnladdition' 'to.the instrumeiits spedified in'�thepei�ormaiice standard, EP.A:isecurrari'flyreievaluating, andwill consequently propose •revisions to, •the subtitle C,corporatelhiianoial tedbas partRof:a separate Tilemaking,`The Agency woedd antic pate'proposing:at the same lime.aonforrning clranges'to'.the part258ifinanoial.responsibility ' performance'standard'to allow:this revised zorporate'tesf ;to ,be ars-ed.-as :a compliance roptionlor ilernanstrating financialiiesponsibility`forib SWLFa. 'These changes :to :the corporate financial test. wou1dbeproposed.=atimeframe ' similar'to the +locai:government financial test, With respect 3o f nancial assurance for corrective. action, the Agency recognizes thatlhe cost,and duration.of a corrective action are likely to differ from the -cost and duration of closure and poat-closure rcare, and that allowable mechanisms for.assurbig closure and post -closure care,may consequeiitly.d9ffer from those appropriate.for. assudiig:corrective action. The discussion :of allowable mechanisms below,notes where today's rule accounts ;for such variations to address corrective,eotion,je.g.,.the length oT the trustlund;pay-in.p.eriod, the.acce,ptabiiityofinsurancej. - The .provisions of today's rule,are intended to ensure,flie reliability of each mechanism relative lathe overall performance standard..Given the minimum requiremeiits ,specified, .the Agengy;believes .that3t is,not.necessary to limit allowable mechanisrns,•as some commenters.suggesied, to.casin,.surety bonds nr•.certificates-6T,depo41t. The Agency tailoraddhese minimum qui liFiaations'.to.the,particular - r'baractEristics and-maustryipractices.of the -providers of.the financial mechanisms Je:g„ sumUes, banks, insurers, eto.j.in=aer',to.enauce .be. effectivenessdf ihemecha fism as ,well as the stabi'lt"ty of the. provider. The Agencyl] elieves-_this approachls preferable to applying.ihesame crite>3a to a1I types -,of providers.Te particular, the,Agency'believ.esst wouldb.e ip,gppropriate'.to;require .all providers of financial assurance medhanisms to satisfy .the sulatitle C Emandial #est, which was deMgned,to assess a private . corporation's ability'to meet certain costs, not to evaluate ;the ability of a financial,sersrice's `fuzri to•carry out'its business. Commenters also urged'the Agoiscyto encourage`the'Statesto develog alternative financial -assurance mechantsms. They argued that IPA should make the States,aware of the need'to'be creative and expansive when devising financial •responsibility mechantszn s, 'arid ;should provide additional gifdance±o`thuStates. - Several•commerters urged the -Agency to encourage States `to establish'State funds as -an �dltemdhvemechanism, arguing that State funds are -the only alternative evadable ^to landfill 'owners with limited resources. The Agency agrees with commenters that alternative financial assurance mechanisms should be explored, To that end, today's rule permits the use, in States .with approver! .programs, .of zmy financial assurance mechanism that satisfies theperformance standard. Subsecfions-(73'and (8) !below;discuss specific alternatives thatiStates.may wish to consider. To accommodate the,self implementing approach being taken for this Talemaking, .today's aule also does not speoifyDroceduralsequirements. The A,gengy.recognizesthat .in order.to function most:effectively„ ,many of :the mechanisms specifiedm today`sxule will raguire:some interaction with the State Tegulatory agaacias.'To ^assist in uniform development of such procedural requirements in approved.States, the Ageniy:is,inoluding a brief discussion of some of.these procedural requirements below. Certain of these,more specific procedures and considerations:are not, however, indluded in €todayVrule. The following•mechanisms are allowed inthe finalx6le: (1) Sect on'258.74[a) Trust Fund 'Trustluncis are sums .of money set aside to rovenanticipateclluture costs (e.g„.closur.q,-post-closure care or corredtive.actiorij andare typica`Ily overseeriby a trustee-rtypically the trust department of a barik).`The owner.or operator woidd'be.ihebeneficiary.dihe trust, with the trustee responsible for making,payments:from.the tmat,ufiaer certain.conditions slescribedbelow; The , trusteels requiredto manage the -trust according .to .the •terms of the .trust agreement and in accordance smith . applicable statellaw. A.copy,oT,the trust agreement-must'be placed in .the facility's operating record. To.ensure that'thetrust:tund:is properly:managed, the final rule specifies that the trustee must have the authority to act as a trustee, and thatihe trustee's operations must be regulated:and.examined by a Federal or State agency. The governmental body with authority over the trustee's operations will depend on . the'type 'cTT1 am;ial instihition'the trusteexepreserits. �F or_exampla, agitate- chaftere'a 11ncial`instihition, which might include m=ercial'banks, - savings and3nans,, mftual'savizlgs banks,-r-maitmriinns and State -licensed foreign-barikg-viouldlbe -regulated by a Efate au:thoilty.,;Nat'roiiaily-chattered commercial banks,' nationally -licensed foreign `banks arid. all'Washington, DC, coinmercial'banks are overseen by the Comptroller 6f'the,Gurrency-in..the'Tru5t Division -of `the U.S.'Treasury Departmerit.Tinally, na'tionally- chartered savings and loans andaiutuaI savings banks are regulated by the Office,of TheTt.`Superadsinn, while nationally -chartered -credit urflons are overseen'by'th-eNzfficnal'CreditUi ian Adniinistratian. jAdditional information conneruing'the quali£iceians of'.trustees may be`found.in"`Financial Assurance for Closure andPost-Closure Carel A Guidance'iliYanua'I,'1vlay1982. 'While the Thiol Lruledoeq nat.spedify the wording of;the trust.etgreement, an approved State implementing apart258 MSWL'Fpr graminay wishito.spedify wording to ensure'that-the trust is managed ina.manner%conslstentsni tri the performance.criteda descfib$d"in § 258:74j1-).'Woraing 4f -a moddl:trust agreement,coeild spodify that the }rust is irrevocable'(i,e.,:theat'the.owner or op orator may ndither alter the :terms .of . the'trust agreement nor _terminate the trust except vfith'the wiiitten consent of fhe trusteel and,niight-spedify the'types of'1nves1merit:policies.(hat1he trustee must To;llow'in managing the trus�t.'The wording for the irust'fu.ndspecMed-in stibtit'le C;(40"CFR 26j4.157,'(a']).could;be used as a.model'for trust•agraement terms. While the ultimate value 61 a closure or post -closure care trustTund.at the time of;clasure niust'ba,aqual to the.cost estimates Tor closura.or.post-closum rare f unlass multiple :instruments ,are being ;used for.finaneial aasurance.as dis cussed belosNr), .the finial rule .allows 51116 Federal Register I Vol. 56, No. 196 f Wednesday, October 9, 1991 f Rules and Regulations the trust to be gradually funded over the expected life of the facility end specifies how the value of the trust must be built up. This build-up would be accomplished through annual payments Into the fund in a manner similar to that required under subtitle C. The amount of these payments, In the case of a trust fund for closure or post -closure care, is to be calculated using the following formula: CE_CV where CE Is the current closure or post - closure cost estimate (updated for inflation or other changes), CV Is the current value of the trust fund (i.e., the value of the funds already paid into the trust), and Y is the number of years remaining In the pay -in period. The maximum pay -in period is the life of the facility permit, if applicable, or the remaining number of years of facility operating life. If the amount of the closure or post -closure cost estimate changes, the amount of the annual payments into the trust fund should be recalculated using the formula described above. The requirements for a corrective action trust fund differ somewhat from the requirements for a closure or post - closure care trust fund for two reasons: (1) The size and duration of corrective action costs are significantly greater, and (2) corrective action financial assurance is required only upon the detection of a release while closure and post -closure financial assurance are required prior to the activities being undertaken. Thus, to be structured like the trust fund for closure and post - closure care, which ensures that the trust Is fully funded by the time that the funds are needed (i.e., by the time that the facility closes), a trust fund for corrective action would need to be fully funded as soon as corrective action is triggered, which would pose an undue burden to nearly all owners or operators. To make the corrective action trust fund available to greater numbers of owners and operators while ensuring that funds are available to complete corrective action, the Agency is allowing an owner or operator to fund the trust gradually over the first half of the corrective action period in an amount that would ensure sufficient funds to cover the costs of corrective action Incurred during the second half of the corrective action period. The corrective action trust fund would therefore operate as follows. First, the maximum allowable pay -in period for a corrective action trust fund is one-half of the length of the corrective action period. Second, the required balance in a trust fund for corrective action at the end of the corrective action pay -in period must be sufficient to cover the remaining corrective action costs after the end of the pay -in period (i.e., the costs of corrective action to be incurred during the second half of the corrective action period). For example, If corrective action will take place over a ten-year period, payments into the trust fund would start at the beginning of the period and end in the fifth year. At the end of the fifth year, the amount of money in the trust fund would have to be sufficient to cover the corrective action costs estimated for the remaining five years of the corrective action period. The trust fund for corrective action would be built up in a manner to that described, for closure and post -closure care trust funds, with changes to accommodate the different pay -in period for trust funds for corrective action (as discussed above). The specific amount of the annual payments is to be calculated using the following formula: n_CV where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs to be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and Y is the number of years remaining in the pay -in period. In developing this pay -in formula the Agency accounted for the size and duration of corrective action costs and the resultant concern that more stringent financial assurance requirements could induce bankruptcies among facility owners and operators, thus increasing the number of unfunded corrective actions. Particularly since corrective action costs for known releases will be incurred concurrently with the costs of providing financial assurance for corrective action, the Agency is concerned that the impact of these two sets of simultaneous costs may increase the number of bankruptcies and the amount of unfunded corrective actions among small owners or operators. Such an outcome would defeat the purpose of more stringent requirements, which is to assure that all corrective action costs will be paid by owners or operators. In addition, the financial assurance requirements for closure and post - closure care are designed to provide assurance before the beginning of closure -or post -closure care; thus financial assurance is being provided for. a future obligation. Section 258.74(a)(5) of the final rule specifies that the initial payment into a closure or post -closure care trust fund 'must be made prior to the initial receipt of waste or the effective date of the rule, whichever is later. The initial payment into a corrective action trust fund must be made no later than 220 days after the corrective action remedy has been selected. In order to ensure that adequate funds will be available for closure, post - closure care, and corrective action if an owner or operator switches from one of the other third -party mechanisms to a trust fund, today's final rule includes specific requirements for the initial payment into the trust in the event that an owner or operator is switching mechanisms. Today's rule requires that, if the owner or operator establishes a trust fund after having used one or more alternate mechanisms, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established initially and annual payments were made according to the specifications of the rule. For example, if An owner or operator switching to a trust fund had been demonstrating financial assurance for ten years, he would need to calculate what the balance of a trust fund would have been, had he established one ten years previously. Because the trust fund involves setting aside an owner or operator's actual funds (rather than obtaining a third - party guarantee that funds will be available when needed), the rule provides for reimbursement to the owner or operator for expenditures for Closure, post -closure care, and corrective action as long as sufficient funds remain in the trust to cover the remaining.costs, Under this rule, funds are released by the trustee in cases where sufficient funds remain in the trust to cover remaining closure, post - closure care and corrective action costs if the owner or operator documents and justifies the reimbursement and places this information in the facility's operating record. -The owner or operator must also notify the State Director that the documentation of the justification for reimbursement has been placed in . the operating record and that he has received reimbursement. The Agency notes that such a reimbursement system is suitable only for mechanisms such as trust funds, into which actual funds have been set aside. Because other Federal Register / Vol, 56, No. 196 /'Wednesday, October 9, 1991 / Rules and Regulations 51117 mechanisms that provide for third -party guarantees of payment (e.g., letters of credit) do not involve setting funds aside, owners and operators would not have to provide funds twice to meet the requirements, However, the owner or operator could be permitted to reduce the level of coverage of the other mechanisms provided that coverage remains sufficient to cover all remaining costs. The Agency wishes to make clear tbat reimbursement of incurred expenses from a trust fund would not in .any way release an owner or operator from the financial assurance requirements. All owners and operators would remain subject to the requirements until completion of closure, post -closure care and/or corrective action is certified and the State is notified in accordance with § § 258.71(a), 258.72(a), and 258,73(a). Under today's rule, trust funds maybe terminated by the owner or operator only upon release from the financial assurance requirements,' or if aim alternate financial assurance mechanism is substituted. (2) Section 258 74W Surety Bond Guaranteeing Payment or Performance -A surety bond guarantees payment for, or performance of; closure, Post., closure care, or corrective actionif the holder of the bond (the facility owner or operator) fails to fulfill these obligations: Surety bonds are generally issued by a surety company. Under the terms of a payment bond, the surety company issuing the bond promises to pay the costs of closure of post-clos6r® care activities if the owner or operator is unable or unwilling to carry out those activities. With a performance bond, the surety company promises to either pay the requfred activities or to perforin the required activities on behalf of the owner or operator. The Agency is allowing only performance bonds to be used to demonstrate financialassurance for corrective action. Because fmancial assurance for corrective action is not required until a release has occurred, a payment bond would have toguarantee that the owner or operator would fully fund a standby trust fund at the time a release was detected, This is a highly unlikely scenario because an owner or operator would most likely opt to use a trust fund with a pay -in period, If the owner or operator is using a payment bond to satisfy the requirements, he must establish a standby trust fund at the same time that the assurance mechanism is established. (A more detailed discussion of standby trusts is provided below.) A copy of the bond must be placed in the facility's operating record To ensure that the surety bond provides an adequate guarantee of funds, the final rule requires that the surety. company issuing the bond must be Iisted in Circular 570 of the U.S, Department of the Treasury. Circular 570 is a list of surety companies which have been approved for writing construction bonds and other surety bonds for federal projects. The rule also requires that the bond must be issued in an amount equal to the cost estimates for closure, post -closure care or corrective action (unless multiple instruments are used as described below) and must be effective prior to the initial receipt of waste or by the effective date of -the rule, whichever is later (in the case of closure and post -closure care), or, in the case of corrective action, within 120 days of the selection of the corrective action remedy.. The rule also requires surety bonds to contain provisions preventing cancellation of the bond •either by the surety, except with 1Z0 days advance notification of cancellation to the owner or operator and to the State,` or by the owner or operator unless an alternate`mecbanism has been obtained. Without such cancellation provisions, a third -party provider of assurance might caricel a mechanisin immediately prior 'to closure or during the posf-closure care or corrective action pe'r od in order to 'avoid payment of those costs. While not required in today's rule. States implementing a part 258 MSWLF program may wish t0 specify the wording of surety bonds used to dernoristrate financial assurance to help ensure that the bonds meet the . performance standard and to minimize State review Burden. States can use the surety bond language specified in subtitle C requirements as'a model (40 GFR 264.151 (b) and (c)). Section 2M74(b)(4) of today's rule requires the establishment of a standby trust fund to accompany a surety bond. A standby trust fund serves as a depository for funds callected from the Providers of financial assurance. Standby trust funds are only necessary when an independent depository is required. For example, under Federal . law, all payments to a Federal agency or official must be deposited with_ the U.S. Treasury and cannot be earmarked for a specific use without reallocation (31. U.S.C. 3302). Therefore, to guarantee that the funds assured for a specific facility are directed to the eosts of closure, post -closure care or corrective action for that site, a standby trust fund may be necessary. The standby trust should be structured in a manner substantially similar to the trust fund described above. In States implementing today's revised criteria, it may be necessary to require owners and operators using other third -party mechanisms to establish a standby trust for those mechanisms if State law would othervise prevent the State regulatory authority from accessing the funds provided by the mechanism. ,If a State determines that an account can be established within its treasury into which 'funds'drawri on the financial assurance mechanisms can be deposited and withdrawn without special action to pay the site -related costs, then such a State may use its treasury as the depository mechanism and no standby trust would be required. Each State should examine its State Iaw on the issue of earmarking funds in and appropriating funds from its general treasury. (3) section 258.74(c) Letter of Credil A standby letter of credit is an instrument issued by a.bank or other financial iristitution that guarantees payment to the beneficiary. (the State . regulatory agency) if, the holder of the letter (the owner or operator) fails to perform certain.obligations. Standby letters of credit diff_ er from traditional commercial letters of credit in that standby letters of credit cannot be drawn upon unless a specified event occurs, To ensure that the letter of credit provides .secura funds for closure, post - closure care and corrective,action for known releases, the finalrule requires ' that the financial institution issuing the letter of credit rust be an institution with the authority to issue such a letter and whose letter -of- credit operations are regulated and examined by a Federal or State agency.'I%ese agencies would'be the same.agencies discussed above as having authority to regulate' trustees, and would similarly differ depending on the type of bank issuing the letter of credit. (Additional information is available in "Financial Assurance for Closure and Post -Closure Care: A Guidance ManueI," May'1982.) The letter of credit, like the. surety bond described above, must be Issued in an amount equal to the closure, post - closure care, or corrective action cost estimates (unless multiple instruments are being used for financial assurance) and must be effective prior to initial receipt of waste or the effective date of the rifle, whichever is later (in the case of closure and past -closure care), or, in the case of corrective action, within 1.20 days of the selection of the corrective action remedy, The letter of credit must 51118 Federal Register / Vol. 58, No. 198 / Wednesday, October 9, 1991 / Rules and Regulations also contain provisions Iimiting cancellation similar to those described above for surety bonds. A copy of the letter of credit must be placed in the facility's operating record. While not required In today's final rule, States implementing part 258 MSWLF programs may wish to consider requiring specMc wording for letters of credit to ensure consistency among instruments and minimize the burdens of State reviews. States may wish to refer to the specified language in the subtitle C requirements as guidance (40 CFR 264.151(d)). (4) Section 258.74(d) fnsurance, Insurance is a contractual arrangement, called the policy, under which the insurer agrees to compensate the policyholder for losses. The purchase of insurance transfers the financial risk from the policyholder to the insurer. While insurance is generally considered most appropriate for coverage of contingent or unknown events, such as accidents or natural disasters, Insurance is an allowable mechanism for assuring closure and post -closure care. Insurance is not an allowable mechanism for demonstrating financial assurance for corrective action under the requirements promulgated today for MSW`LFf; because insurance is inappropriate coverage for known corrective action. Financial assurance for corrective action Is not required until a release has been detected and insurers will not issue policies to cover the cost of damages thathave already occurred (analogous to issuing Mare insurance for a burning building). Th 3 final rule requires that the Insurance policy must be written to cover the full amount of the closure or past -closure care cost estimates (unless multiple instruments are being used). An Insurance policy for closure or post - closure care must be in effect prior to the Initial receipt of waste or the effective date of the rule, whichever Is later, and a copy of the insurance policy must be placed in the facility's operating record. To ensure that the insurer is a reliable source of financial assurance, the final rule requires that Ensurers issuing policies used to demonstrate financial assurance for closure and post - closure care must, at a minimum, be licenced or eligible to provide insurance as nit excess or surplus lines insurer, in one or more States. In addition, today's rule specifies that insurance policies . . may be canceled by the insurer only for non-payment of premium and only 120 days after notice is sent to the owner or operator and to the State. Owners and operators may cancel the policy if they have obtained a replacement mechanism or if they have been released from financial assurance requirements. (5) Section 258.74 (e) and W Corporate .Financial Test and Guarantee Section 258.74 (f) and (h) Zocal Government Test and Guarantee 'While no specific financial tests or guarantee requirements are being finalized in today's rule, the Agency plans to propose part 258 requirements that include these requirements in 1992. The Agency anticipates that these four requirements would take effect concurrently. (B) .Section 258.74(i) State Appros ed Afechanisms Today's rule authorizes the use, only in approved States, of any mechanism that is approved by the State. State - approved mechanisms include any :financial mechanisms, in addition to those described above, approved by a State for use in demonstrating financial assurance. Any State -approved . mechanism must meet the performance criteria specified in § 258.74(1), A State may approve a mechanism for use generally or It may choose to approve individual mechanisms submitted by owners and operators on i case-by-case basis, In either case, a State should develop a process for approval to ensure that mechanisms.meet the performance standard. In addition, States may wish to specify mechanismlanguage and include provisions regarding qualifications of providers and limiting cancellation. Given this framework, the Agency encourages States to consider developing innovative approaches to fulfilling the financial assurance requirements. The Agency expects a mix of instruments provided by third parties and State-sponsored mechanisms to be developed under this section. States may wish to take into account a variety of factors, such as the financial capability of local owners and operators, when developing new mechanisms. Depending on the State's financial resources and on the population of owners and operators, a State may wish to institute and subsidize a Ioan or grant program to assure that closure, post -closure care, and corrective action obligations will be suet, Other mechanisms might include certificates of deposit, escrow accounts, enterprise funds, and enforced local government planning requirements. As a further example, the establishment of a financial assurance fund organized by the State and paid for by participates; MSWLFs may prove to be an attractive alternative in many cases. The Agency intends to prepare guidance that will aid the State in establishing State-sponsored financing programs. (7)Section 258.746) State Assumption of responsibility State assumption of responsibility involves the direct participation of the State in assuring that funds will be available to cover the costs of closure, post -closure care, or corrective action. An owner or operator will be in compliance -if a State either assumes legal responsibility for the awner or operator's compliance with the closure, ,post -closure care and/or corrective action obligations, or if it assures that funds will be available from State sources to cover the obligations. State assumption of responsibility can take many forms, including purchase of another financial mechanism on behalf of the owner or operator, and the issuance of a State guarantee. A State could choose to assume responsibility only under certain specified conditions (e.g., where no responsible owner or operator can be found or in emergencies where the owner or operator is unable to respond effectively). Options for States to generate funds to cover the costs associated with State assumption of responsibility include funding through general revenue, a special tax, contributions from the MSWLFs receiving assurance, or tipping fees charged bypartleipating MSWLFs. States may also wish to consider including provisions enabling the State to obtain reimbursement from owners and operators benefiting from State assump.tion.. As with State -approved mechanisms, any mechanism for State assumption of financial responsibility must meet the performance criteria specified in § 258.74(1). (8) Section 256.74(k) Use of Multiple Financial Mechanisms Owners and operators may. use more than one mechanism to cover their closure, poet -closure care, or corrective action costs. The total amount of assurance provided by the mechanisms together must equal the cost estimates for closure, post -closure care, or corrective action. The final rule requires that, if a financial test mechanism is to be combined with a guarantee provided by a corporate relative, then the financial statements of the two iti rms may not be consolidated. Such a limitation is necessary because if consolidated financial statements are Federal Register / Vol. 56, No, 190 /Wednesday,- ©:ctober 9, 1991 / Rules and Regulations 511 9 used, then assets of the two firms may be double -counted for the purpose of determining whether each firm meets the requirements. This double counting _ *nay prevent the financial test from accurately measuring the financial strength of the two firms involved. , [FR Doc. 91-22963 Filed LO -8-91; 8:45 —1 BILLING CODE 6580 -5D -M ' • 1. 1