Criteria for Classification of Solid Waste Disposal Facilities and Practices; Identification and Listing of Hazardous Waste; Requirements for Authorization of State Hazardous Waste Programs
[Federal Register: July 1, 1996 (Volume 61, Number 127)]
[Rules and Regulations]
[Page 34251-34278]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy96-22]
[[Page 34251]]
_______________________________________________________________________
Part V
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 257, et al.
Criteria for Classification of Solid Waste Disposal Facilities and
Practices; Identification and Listing of Hazardous Waste; Requirements
for Authorization of State Hazardous Waste Programs; Final Rule
[[Page 34252]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 257, 261, and 271
[FRL-5528-4]
RIN 2050-AE11
Criteria for Classification of Solid Waste Disposal Facilities
and Practices; Identification and Listing of Hazardous Waste;
Requirements for Authorization of State Hazardous Waste Programs
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency today is promulgating
revisions to the existing criteria for solid waste disposal facilities
and practices. These revisions were developed in response to the 1984
Hazardous and Solid Waste Amendments to the Resource Conservation and
Recovery Act (RCRA). Today's final revisions establish that only those
non-municipal non-hazardous waste disposal units that meet specific
standards may receive conditionally exempt small quantity generator
(CESQG) hazardous wastes. Today's final revisions establish standards
pertaining to location restrictions, ground-water monitoring and
corrective action.
The EPA is also finalizing revisions to regulations for hazardous
wastes generated by CESQGs. Today's final language will clarify
acceptable disposal options under Subtitle D of RCRA by specifying that
CESQG hazardous waste may be managed at municipal solid waste landfills
subject to Part 258 and at nonmunicipal non-hazardous waste disposal
units subject to today's revised Criteria.
EFFECTIVE DATES: January 1, 1998, except Secs. 257.21 through 257.28
which are effective July 1, 1998, and Secs. 261.5(f), 261.5(g) and
271.1 which are effective January 1, 1997, but which have a compliance
date of January 1, 1998. The information collection requirements
contained in Secs. 257.24, 257.25, and 257.27 have not been approved by
the Office of Management and Budget (OMB) and are not effective until
OMB has approved them.
ADDRESSES: The public docket for this rulemaking (docket number F-96-
NCEF-FFFFF) is located at the U.S. Environmental Protection Agency,
Crystal Gateway Building, 1235 Jefferson Davis Highway, First Floor,
Arlington, Virginia. The public docket is available for viewing from 9
a.m. to 4 p.m., Monday through Friday, excluding federal holidays.
Appointments may be made by calling (703) 603-9230. Copies cost $0.15/
page.
FOR FURTHER INFORMATION CONTACT: For specific information on aspects of
the final rule, please contact Paul Cassidy of the Industrial Solid
Waste Branch of the Office of Solid Waste at 1-703-308-7281. For a
paper copy of the Federal Register notice or for general information,
please contact the RCRA Hotline at 1-800-424-9346 or at 1-703-412-9810.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are owners/operators
of non-municipal non-hazardous waste disposal units that may receive
conditionally exempt small quantity generator (CESQG) hazardous waste.
Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Construction and demolition waste disposal Owners/operators of
firms. construction and demolition
waste disposal units that
may receive CESQG hazardous
waste.
Industrial manufacturing plants........... Owners/operators of non-
municipal non-hazardous
waste disposal units that
may receive CESQG hazardous
waste.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the type of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your non-municipal non-hazardous waste disposal unit is regulated by
this action, you should carefully examine the applicability section of
this final rule (i.e., section 257.5). If you have any questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
This Federal Register notice will be available in electronic format
on the Internet system through the EPA Public Access Server @
gopher.epa.gov.
How to Access the Net
1. Through Gopher: Go to: gopher.epa.gov. From the main menu,
choose ''EPA Offices and Regions''. Next, choose ''Office of Solid
Waste and Emergency Response (OSWER)''. Next, choose ''Office of Solid
Waste''. Then, choose ''Non-Hazardous Waste--RCRA Subtitle D''.
Finally, choose ''Industrial''.
2. Through FTP: Go to: ftp.epa.gov.
Login: anonymous
Password: Your Internet Address
Files are located in directories/pub/gopher. All OSW files are in
directories beginning with ''OSW''.
3. Through MOSAIC: Go to: http://www.epa.gov. Choose the EPA Public
Access Gopher. From the main (Gopher) menu, choose ''EPA Offices and
Regions''. Next, choose ''Office of Solid Waste and Emergency Response
(OSWER)''. Next, choose ''Office of Solid Waste''. Then, choose ''Non-
Hazardous Waste--RCRA Subtitle D''. Finally, choose ''Industrial''.
4. Through dial-up access: Dial 919-558-0335. Choose EPA Public
Access Gopher. From the main (Gopher) menu, choose ''EPA Offices and
Regions''. Next, choose ''Office of Solid Waste and Emergency Response
(OSWER)''. Next, choose ''Office of Solid Waste''. Then, choose ''Non-
Hazardous Waste--RCRA Subtitle D''. Finally, choose ''Industrial''.
Preamble Outline
I. Authority
II. Background
A. Current Solid Waste Controls under the Resource Conservation
and Recovery Act (RCRA)--Non-Hazardous Waste Management: Municipal
Wastes
B. Sierra Club Lawsuit
C. Summary of Proposal Rule
III. Summary of Regulatory Approach of Today's Final Rule
IV. Major Issues
A. Non-Municipal Non-Hazardous Waste Disposal Units that May
Receive CESQG Hazardous Wastes
B. Decision to Impose or Go Beyond the Statutory Minimum
Components
C. Decision to Use the Part 258 Criteria Language or General
Performance Language
V. Summary of Today's Final Rule
VI. Specifics of Today's Final Rule
A. Section 257.5--Applicability
B. Sections 257.7-257.13--Location Restrictions
C. Sections 257.21-257.28--Ground-Water Monitoring and
Corrective Action
D. Section 257.30--Recordkeeping Requirements
E. Special Requirements for Hazardous Waste Generated by
Conditionally Exempt Small Quantity Generators
1. Changes to Section 261.5
2. CESQG Wastes
3. Screening Procedures
VII. Implementation of Today's Final Rule
VIII. Executive Order No. 12866
IX. Regulatory Flexibility Act
X. Submission to Congress and the General Accounting Office
[[Page 34253]]
XI. Paperwork Reduction Act
XII. Environmental Justice
XIII. Unfunded Mandates Reform Act
I. Authority
Today's rule is being promulgated under the authority of sections
1008, 2002 (general rulemaking authority), 3001(d)(4), 4004 and 4010 of
RCRA, as amended. Section 3001(d)(4) authorizes EPA to promulgate
standards for generators who do not generate more than 100 kilograms
per month of hazardous waste. Section 4010(c) directs EPA to revise
Criteria promulgated under sections 1008 and 4004 for facilities that
may receive hazardous household wastes (HHW) or small quantity
generator (SQG) hazardous waste.
II. Background
A. Current Solid Waste Controls Under the Resource Conservation and
Recovery Act (RCRA)--Non-Hazardous Waste Management: Municipal Wastes
As added by the Hazardous and Solid Waste Amendments (HSWA) of
1984, section 4010(c) requires that the Administrator revise the
existing Part 257 Subtitle D Criteria used to classify facilities as
sanitary landfills or open dumps by March 31, 1988, for facilities that
may receive household hazardous waste or hazardous waste from small
quantity generators. The required revisions are those necessary to
protect human health and the environment and which take into account
the practicable capability of such facilities. At a minimum, the
revised Criteria must include ground-water monitoring as necessary to
detect contamination, location restrictions, and provide for corrective
action, as appropriate.
On October 9, 1991, EPA promulgated revised Criteria for Solid
Waste Disposal Facilities accepting household hazardous wastes. Those
revisions fulfilled the part of the statutory mandate found in RCRA
section 4010 for all facilities that receive household hazardous
wastes. (Any facility receiving any household waste is subject to the
revised Criteria, which were relocated at 40 CFR part 258 for purposes
of clarity). Revisions to the Part 257 Criteria for other Subtitle D
disposal facilities that may receive conditionally exempt small
quantity generator (CESQG) hazardous wastes were delayed as the Agency
had little information concerning the potential or actual impacts that
these types of facilities may have on human health and the environment.
B. Sierra Club Lawsuit
The Sierra Club, on October 21, 1993, filed suit against the EPA in
the United States District Court for the District of Columbia, seeking
to compel the EPA to promulgate revised Criteria for non-municipal
facilities that may receive small quantity generator hazardous waste.
As a result of the October 21, 1993 lawsuit, the EPA and the Sierra
Club reached agreement on a schedule concerning revised Criteria for
non-municipal facilities that may receive CESQG wastes. This schedule
requires that the EPA Administrator sign a proposal by May 15, 1995 and
a final rule by July 1, 1996. On May 15, 1995, the Administrator signed
proposed standards for non-municipal non-hazardous waste disposal units
that may receive CESQG hazardous wastes. These proposed standards were
published in the Federal Register on June 12, 1995 (see 60 FR 30964).
C. Summary of Proposed Regulatory Approach
The June 12, 1995 proposal stated that any non-municipal non-
hazardous waste disposal unit 1 that meets the proposed
requirements may receive CESQG hazardous waste; if such units do not
meet the proposed requirements, they may not receive CESQG waste.
Sections 257.5 through 257.30 were proposed to address appropriate
facility standards for owners/operators of non-municipal non-hazardous
waste disposal units that receive CESQG hazardous wastes. The
requirements proposed in Secs. 257.5 through 257.30 were substantially
the same as 40 CFR part 258. The location restrictions were proposed to
be effective 18 months after publication of the final rule, while the
ground-water monitoring and corrective action requirements were
proposed to be effective 24 months after publication of the final rule.
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\1\ Proposed phrase ''Non-municipal solid waste disposal
facility'' has been replaced in the final rule with the phrase
''non-municipal non-hazardous waste disposal unit''. See Section VI,
A2 of today's preamble for an explanation.
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The June 12, 1995 proposal also proposed to amend the existing
language of Sec. 261.5 clarifying acceptable Subtitle D management
options for CESQGs. The existing language in Sec. 261.5, paragraphs
(f)(3) and (g)(3) allows for a CESQG hazardous waste to be managed at a
hazardous waste facility (either in interim status or permitted), a
reuse or recycling facility, or a non-hazardous solid waste facility
that is permitted, licensed, or registered by a State to manage
municipal or industrial waste. The June 12 proposal proposed to
continue to allow CESQG waste to be managed at a hazardous waste
facility or at a reuse or recycling facility; however, if CESQG waste
is managed in a Subtitle D disposal facility, it must be managed in a
MSWLF that is subject to part 258 or a non-municipal non-hazardous
waste disposal unit that would be subject to the facility standards in
Secs. 257.5 through 257.30.
III. Summary of Regulatory Approach of Today's Final Rule
Based on comments received on the proposed regulatory approach, the
EPA is today finalizing a rule that is almost identical to the proposed
requirements for non-municipal non-hazardous waste disposal units that
receive CESQG hazardous wastes. Commentors clearly did not favor
imposing additional requirements, beyond those proposed, based on the
lack of risks presented by non-municipal non-hazardous waste disposal
units that receive CESQG hazardous wastes. Furthermore, commentors were
somewhat divided on whether to use the part 258 requirements or general
performance standards in writing the requirements. The EPA has elected
to use the part 258 requirements.
Elsewhere in today's final rule, and again based on comments that
agreed with the EPA's proposed regulatory approach for CESQGs, EPA is
finalizing the proposed changes to the special requirements for CESQGs
(i.e., Sec. 261.5) to clarify the obligation that the generators of
CESQG wastes have to ensure proper management of such wastes. CESQGs
are those that generate no more than 100 kilograms of hazardous waste
or no more than one kilogram of acutely hazardous waste in a month and
who accumulate no more than 1000 kilograms of hazardous waste or no
more than one kilogram of acutely hazardous waste at one time.
As previously discussed, today's final rule responds to the
statutory language in RCRA section 4010(c). In responding initially to
the statutory language of section 4010(c), EPA elected to regulate
municipal solid waste landfills first, due to the comparatively higher
risks presented by these types of facilities. As discussed in the
proposed rule, the subject of today's final rule--non-municipal non-
hazardous waste disposal units that receive CESQG waste--present a
small risk relative to risks presented by other environmental
conditions or situations. Given this lower risk, the Agency would have
elected not to issue this final rule at this time. In a time of limited
resources,
[[Page 34254]]
common sense dictates that we deal with higher priorities first, a
principle on which EPA, members of the regulated community, and the
public can agree. However, given the D.C Circuit's reading of RCRA
section 4010(c), Sierra Club v. EPA, 992 F.2d 337, 347 (D.C. Cir.
1993), and a schedule established as a result of litigation, the Agency
must issue this final rule now. Faced with having to issue this final
rule for a class of facilities that do not generally pose risks as high
as municipal solid waste landfills, the Agency is finalizing
requirements that address only the statutory minimum requirements in an
attempt to reduce the economic burden on the regulated community.
A complete discussion of the main issues associated with today's
final rule is presented in the next section of today's preamble while a
discussion of today's requirements is presented later in today's
preamble.
IV. Major Issues
A. Non-Municipal Non-Hazardous Waste Disposal Units That May Receive
CESQG Hazardous Waste
The proposed rule was written to provide that only those non-
municipal non-hazardous waste disposal units which meet the
requirements in Secs. 257.5 through 257.30 ''may receive'' CESQG waste,
as required by RCRA section 4010(c). Any non-municipal non-hazardous
waste disposal unit that did not meet the proposed requirements may not
receive CESQG hazardous wastes. The proposal was written to apply to
non-municipal non-hazardous waste disposal units that receive CESQG
waste for storage, treatment, or disposal, including such units as
surface impoundments, landfills, land application units and waste
piles. The regulatory definition of the term ''disposal'' cover all
placement of wastes on the land. See 40 CFR 257.2.
Several commentors addressed the Agency's interpretation of the
statutory language ''may receive''. One commentor supported the
Agency's decision to limit the proposed regulatory requirements to only
those non-municipal non-hazardous waste disposal units that receive
CESQG wastes. Another commentor, however, stated that a closer reading
of Section 4010(c) reveals that Congress was not only concerned about
modifying the criteria for ''facilities that may receive hazardous
household wastes or hazardous wastes from small quantity generators * *
*'' but also for ''facilities potentially receiving such wastes.''
According to the commentor, the ''may receive'' clause of the first
sentence in Section 4010(c) merely refers to whether a facility may
legally receive CESQG waste for disposal. The ''potentially receiving
such wastes'' clause of the third sentence of Section 4010(c) refers to
the actual potential for such facilities to receive CESQG wastes. The
potential for CESQG waste to be disposed of at many types of industrial
D landfills is high even with the proposed prohibition under
Sec. 261.5. It is the ''potentially receiving'' clause that
specifically commands the Agency to promulgate provisions for all
industrial facilities that could potentially receive CESQG wastes.
EPA disagrees with the commentor's interpretation of the statutory
language in RCRA section 4010(c). More specifically, for a number of
reasons, the Agency does not believe that the statutory language cited
by the commentor evidences congressional intent that the revised
criteria being promulgated today should address disposal of solid waste
in all industrial disposal facilities. First, EPA believes that the
commentor errs by focusing only on the ''facilities potentially
receiving'' language in the last sentence of section 4010(c). If one
reviews this language together with the statutory language in RCRA
section 4010(a), it is clear that Congress did not intend for the
revised criteria being promulgated today to apply to all industrial
landfills.
RCRA section 4010(a) required EPA to conduct a study of the then
existing guidelines and criteria issued under RCRA sections 1008 and
4004 which were applicable to ''solid waste management and disposal
facilities, including, but not limited to landfills and surface
impoundments.'' 42 U.S.C. Sec. 6949a(a). This statutory language does
indeed suggest that EPA was to study a wide range of solid waste
disposal facilities, including industrial landfills. (As the commentor
stated, because the information on industrial disposal facilities was
quite limited, EPA's report to Congress did focus on municipal
landfills.)
However, the statutory language in section 4010(c) directing EPA to
promulgate a rule revising the criteria in 40 CFR Part 257 limits the
rule's applicability only to those facilities which may receive
hazardous household waste or small quantity generator waste. 42 U.S.C.
6949a(c). If Congress had intended the revised criteria under section
4010(c) to apply to all solid waste disposal facilities, including
industrial landfills and surface impoundments, it clearly could have
done so by enacting language similar to that already used in section
4010(a).
Secondly, the legislative history of RCRA section 4010 suggests
that Congress expressly rejected a provision that would have required
rules to be promulgated under section 4010(c) to apply to the entire
universe of RCRA Subtitle D solid waste disposal facilities. Indeed,
the House version of section 4010 would have required EPA to promulgate
revised guidelines and criteria such that they would be applicable to
all ''solid waste management and disposal facilities, including, but
not limited to landfills and surface impoundments * * *.'' H.R. 2867,
section 30, 98th Cong., 1st Sess. (as introduced in the Senate on
November 9, 1983). However, the Conference Committee instead adopted a
Senate amendment which limited the scope of the revised criteria to
those facilities that may receive hazardous household waste or small
quantity generator waste. H. Rept. No. 98-1133, 98th Cong., 2d Sess.,
at 116-117.
Another indication that RCRA section 4010(c) was not intended to
cover the entire universe of solid waste disposal facilities is the
fact that subsequent to the enactment of section 4010(c) (as part of
the Hazardous and Solid Waste Amendments in 1984), a number of bills
were introduced in Congress which would have either authorized or
required EPA to issue additional regulations that would address all
disposal facilities receiving industrial waste as opposed to addressing
those which may receive CESQG waste as stated in Section 4010(c). See,
e.g., H.R. 3735, ''Waste Materials Management Act of 1989,'' section
324 (would have required EPA to promulgate standards for the management
of industrial solid waste) (Luken Bill); S. 1113, ''Waste Minimization
and Control Act of 1989,'' section 204 (would have required EPA to
promulgate requirements for facilities that manage different types of
industrial waste) (Baucus Bill). Neither of these provisions (although
neither was enacted) would have been necessary if RCRA section 4010(c)
required EPA to promulgate revised criteria for all types of industrial
disposal facilities.
This same commentor cites to language in both the Report to
Congress (as provided for in RCRA section 4010(b)) and the MSWLF
rulemaking to suggest that EPA acknowledged that all industrial
landfills, even those not receiving CESQG waste, should fall within the
scope of today's rule. EPA acknowledges that it expressed a concern
about the potential risks that industrial solid waste disposal
facilities might pose; however, EPA indicated
[[Page 34255]]
that it did not have the level of information necessary to conduct a
rulemaking for such disposal facilities. At the time of issuing the
final MSWLF rule, EPA indicated that it would attempt to study these
facilities to gain a better understanding of the risks that they may
pose. See 56 FR 51000 (Oct. 9, 1991).
After investigating available information in more detail, it became
clear that of all industrial solid waste disposal facilities, only
construction and demolition and off-site commercial facilities
typically receive CESQG waste. As discussed in the proposed rule,
recent information and discussions with the relevant industries
indicate that on-site industrial disposal facilities (which make up the
vast majority of industrial disposal facilities) generally do not
receive CESQG waste. However, the commentor should be aware that EPA
has drafted the rule such that it will apply to such industrial on-site
facilities if they receive CESQG waste. See sections 257.5(a) (1) and
(3).
B. Decision To Impose or Go Beyond the Statutory Minimum Components
RCRA section 4010(c) requires that the revised criteria must at a
minimum include location restrictions, ground-water monitoring as
necessary to detect contamination, and corrective action, as
appropriate. The June 12, 1995, proposal discussed how the Part 258
Municipal Solid Waste Landfill Criteria went beyond these requirements.
(See 60 FR 30968.) The proposal for non-municipal non-hazardous waste
disposal units did not, however, go beyond these statutory minimum
requirements. The Agency presented data, in the June 12 proposal, which
showed that the establishment of additional facility management
requirements, beyond these types of requirements, for non-municipal
non-hazardous waste disposal units that may receive CESQG waste was not
warranted.
The Agency received comments on both sides of this issue. Some
commentors felt that the statutory minimum components were adequate to
address the potential risks from non-municipal non-hazardous waste
disposal units that may receive CESQG wastes. However, other commentors
believed that additional regulatory controls should have been required.
Commentors stated that the level of documented releases and
environmental problems do not merit extensive regulations. Commentors
also stated that the final regulations should be limited to the
proposed requirements as they felt that those requirements were indeed
adequate given the low risks associated with the disposal of CESQG
waste in non-municipal non-hazardous waste disposal units. Some
commentors argued that less stringent requirements, less than the
proposed requirements, would have been more appropriate.
On the other hand, some commentors raised the concern that the
cumulative effect of allowing small quantities of hazardous waste to be
disposed of in non-municipal non-hazardous waste disposal units would
result in a major source of ground-water pollution. Commentors further
felt that because MSWLF owners/operators have upgraded their units to
meet the requirements in Part 258 in order to minimize the risk
associated with the disposal of household hazardous wastes and CESQG
wastes, non-municipal non-hazardous waste disposal units disposing of
CESQG wastes should be required to meet the same standards as in Part
258 (e.g., closure and post-closure care, financial assurance and
operating requirements). In addition, one commentor believed that the
Agency's conclusions, concerning the potential risks associated with
non-municipal non-hazardous waste disposal units receiving CESQG
wastes, were based on outdated and limited data. The commentor felt
that the data cited by EPA failed to justify the Agency's conclusion
that non-municipal non-hazardous waste disposal units pose low risk but
rather simply indicate a lack of information on the subject.
The Agency agrees with those commentors who believe that the
proposed requirements are adequate to address the potential risks from
non-municipal non-hazardous waste disposal units that receive CESQG
hazardous wastes. In the June 1995 proposal, the Agency took the
position that only the proposed requirements were necessary because
''construction and demolition (C&D) waste units, in general, do not
currently pose significant risks and that individual damage cases are
limited in occurrence'' and that off-site commercial landfills are
subject to more ''stringent environmental controls''. The Agency
requested additional data concerning C&D units to further assess the
potential risks these types of units may pose as well as additional
data on commercial industrial solid waste units or other types of units
that may be subject to the proposal.
The Agency did not receive any new data concerning the potential
risks associated with C&D units or any other types of units potentially
subject to the proposal. Thus, EPA has no information suggesting that
the facilities subject to this rule pose any risks beyond those limited
ones discussed in the proposed rule. (One commentor submitted leachate
data on bulky waste landfills but that data was previously considered
by the Agency during the development of the proposal.) In response to
the commentor that suggested that the cumulative effects of allowing
small amounts of hazardous waste would result in a major source of
ground-water pollution the Agency disagrees. The Agency believes that
the limited number of documented damage cases and cases of ground-water
contamination, discussed in the proposal to this rule, do not support
the commentor's concern about the creation of major sources of ground-
water pollution. As such, the Agency believes that it should not go
beyond the requirements that were proposed.
For those commentors who expressed the need to impose Federal
controls on C&D units beyond the proposed requirements, in the form of
closure/post-closure standards and/or financial assurance requirements,
the Agency wishes to point out that these types of standards are
prevalent among State programs for C&D units. Most States (44) specify
some thickness for a final cover, 34 States require post-closure care
for some period of time while 33 and 32 States require financial
assurance for closure and post-closure care, respectively, for C&D
units. Given the lack of data suggesting that C&D facilities pose the
same risks as MSWLFs and the fact that most States already require
additional regulatory controls, EPA does not believe it is appropriate
to establish requirements that go beyond the statutory minimum
requirements of Section 4010(c).
C. Decision To Use the Part 258 Criteria Language or General
Performance Language
The June 12, 1995 proposal identified two options for writing the
proposed requirements. One was to use the Part 258 criteria as the
baseline for these requirements. Part 258 is a combination of
performance standards and additional detail to help the owner/operator
achieve compliance with the performance standards. Part 258 also
establishes minimum national criteria for municipal solid waste
landfills, and as such, a minimum national level of protection. The
second option was to use general performance standards that could be
met by facility owners/operators as they implement the standards as
well as to guide States in designing new regulatory programs (or
revising existing regulatory programs).
[[Page 34256]]
Reasons cited in the proposal for using the Part 258 Criteria
included: (1) Part 258 Criteria provide sufficient detail so that an
individual owner/operator can self-implement them without State
interaction in those instances where States do not seek approval of
their permitting program as required in RCRA Section 4005(c); (2) EPA
believes that the national minimum requirements are necessary for
collection of reliable and consistent ground-water monitoring data and
to allow the owner/operator and States to respond to contamination from
the unit; (3) They contain a substantial amount of flexibility that
allows approved States to tailor standards to individual and classes of
facilities; (4) Some States expressed strong support for using 258
standards as the baseline for solid waste disposal facilities that
receive CESQG hazardous waste; and (5) While some States have standards
for non-municipal facilities that are not identical to the 258
standards, the Agency believed there was a strong likelihood that many
State programs would be approvable.
Reasons cited in the preamble in support of using the general
performance standard approach included: (1) Although the Part 258
standards contain substantial flexibility for States to tailor the
programs to their conditions, the Part 258 standards put certain limits
on State flexibility to design a program tailored to local conditions;
(2) The Part 258 standards also include certain national minimum
requirements (which States can not modify) that EPA promulgated because
of the risks posed by MSWLFs; (3) In the absence of a significant
Federal program, over half of the States have adopted location
standards, ground-water monitoring requirements, and corrective action
requirements that are significantly less extensive than the Part 258
standards; and (4) a general performance standard would provide the
maximum flexibility for States and owners to adopt new methodologies
and technologies (e.g., detecting ground-water contamination using
technologies other than monitoring wells) to meet the standard at the
lowest possible cost.
Comments were received in support of both approaches. Commentors
supported the use of the Part 258 Criteria because they thought general
performance standards would be difficult to implement and enforce.
Another commentor stated that Section 4010(c) requires EPA to spell-out
the requirements that facilities must implement; he argues that by not
specifying how to attain the statutory minimum requirements, a
performance-based approach would fall short of the statute. The
performance-based approach would spawn endless uncertainty, requiring
the wheel to be re-invented for each facility. This uncertainty would
fall most heavily on citizens who are concerned about individual
facilities. Other commentors argued against promulgating general
performance standards and stated that the Part 258 rules provide a
clear, flexible, common sense approach. Using Part 258 provides both
the regulated community and the State Agencies a familiar, well-thought
out scheme that is easy to administer and implement and offers
sufficient flexibility to address site-specific conditions in approved
States. The Agency received extensive comment in the Part 258
rulemaking indicating why general performance standards were
inappropriate for landfills; those comments are as relevant today for
landfills receiving CESQG waste. Finally, developing a significantly
different set of rules from either Part 257 or Part 258 would also be
confusing to the regulated community because it would create one set of
rules for household wastes (Part 258), one for sites that accept CESQG
wastes (this rule) and one for all other non-hazardous wastes (Part
257).
Other commentors supported the use of general performance standards
by reiterating the reasons provided in the proposal in support of such
an approach. Other commentors stated that due to the nature of the
demolition waste stream being landfilled, they supported the use of
general performance standards vs. all of the Part 258 standards.
Commentors supported maximum State flexibility to address local
conditions and requirements tailored to the perceived risk, not
automatically adopting the more restrictive MSWLF regime. Another
commentor stated that the Part 258 ground-water monitoring standards
were developed for MSWLFs and if the ground-water monitoring program
for non-municipal non-hazardous waste disposal units is not based on a
performance standard that allows for site-specific design, certain
facilities will be overregulated. Another commentor stated that the
general performance standard is preferable as long as it provides an
adequate description of the performance objective. Guidance manuals
could be used to implement the general performance standards.
The Agency agrees with the majority of commentors who supported the
use of the Part 258 Criteria. The Agency believes, for all of the
reasons discussed by the commentors, that the use of the Part 258
criteria is the preferable option to utilize in the final rule. The
Part 258 Criteria are a clear, flexible set of regulations that can be
tailored by approved States to address site-specific conditions while
protecting human health and the environment. The ground-water and
corrective action requirements of today's final rule offer owners/
operators in approved States great flexibility in establishing a
ground-water monitoring program and in selecting a corrective measure
should corrective action become necessary.
In a sense, the Part 258 Criteria for ground-water monitoring and
corrective action are general performance standards. However, the big
difference between the use of the Part 258 Criteria and the use of a
general performance standard approach is the detail that is contained
in the Part 258 Criteria, the same detail would not be a part of a
general performance standard approach. Both the Part 258 Criteria and
the general performance standard approach use performance standards;
the general performance standard approach would provide only general
standards to be followed by the owner/operator, while the Part 258
Criteria would provide additional detail and guidance to an owner/
operator in trying to comply with the performance standards contained
in Part 258. This additional detail in the Part 258 Criteria is what
the Agency believes commentors were referring to when they stated that
''using Part 258 provides both the regulated community and the State
Agencies a familiar, well-thought out scheme that is easy to administer
and implement and offers sufficient flexibility to address site-
specific conditions''. It is this additional detail in Part 258 that if
not contained in the general performance standard approach would create
confusion among the regulated community and ''spawn endless
uncertainty''.
The Agency believes that the use of the detail in the Part 258
Criteria for ground-water monitoring and corrective action, in the form
of factors to consider vs. design standards, clearly guides an owner/
operator in achieving compliance with the performance standards in Part
258 while maximizing the owners/operators ability to take into account
and use site-specific data. Part 258 guides an owner/operator and State
Agencies by specifying (1) what factors should be considered in
determining the number, depth, and spacing of the wells in the
monitoring system, (2) how wells should be cased, (3) that any
statistical test comply with basic performance standards, (4) what
factors should be considered in establishing an initial list of
monitoring parameters and frequency, (5) what factors should be
[[Page 34257]]
considered in selecting any potential remedy under corrective action,
and (6) what factors should be considered in developing interim
measures under a corrective action program. The Agency does not believe
that the use of the detail in the Part 258 Criteria will result in
''facilities being overregulated''. EPA also believes that this detail
is necessary to protect human health and the environment.
V. Summary of Today's Final Rule
Today's final rule specifies that non-municipal non-hazardous waste
disposal units that do not meet the requirements (i.e., location
restrictions, ground-water monitoring and corrective action) in
sections 257.5 through 257.30 may not receive CESQG hazardous waste.
The ground-water monitoring and corrective action requirements being
finalized today are substantially the same as those that were proposed.
The location restrictions have been changed from the proposal with the
major change being that in the proposal 6 location restrictions were
proposed but in today's final rule only 2 location restrictions are
being finalized (floodplains and wetlands). Differences between the
final requirements and those that were proposed are discussed in the
appropriate sections of today's preamble.
The location restrictions will be effective 18 months after
publication of the final rule. The location restrictions being
finalized today are the floodplains and wetlands restrictions. The
floodplains restriction is applicable to new units, existing units, and
lateral expansions of existing units that receive CESQG waste. Only new
units and lateral expansions of existing units that receive CESQG
hazardous waste must comply with the wetlands location restriction.
The ground-water monitoring and corrective action requirements will
be effective 24 months after publication of the final rule. Any
existing unit, new unit, or lateral expansion of an existing unit that
receives CESQG hazardous waste after the effective date will be
required to comply with the final ground-water monitoring and
corrective action requirements. The ground-water monitoring provisions
are being finalized to ensure that units that receive CESQG hazardous
waste will have monitoring systems in place that will enable the
detection of any contamination of ground-waters along with appropriate
sampling and analysis procedures to allow for the statistical analysis
of monitoring results. The corrective action requirements will allow
for the evaluation, selection, and implementation of an appropriate
remedial technology to clean-up any contamination of ground-waters.
Today's final rule also amends the existing language of Sec. 261.5
clarifying acceptable Subtitle D management options for CESQGs. The
language in Sec. 261.5, paragraphs (f)(3) and (g)(3) currently allows a
CESQG hazardous waste to be managed at a hazardous waste facility
(either in interim status or permitted), a reuse or recycling facility,
or a non-hazardous waste disposal unit that is permitted, licensed, or
registered by a State to manage municipal or industrial waste. Today's
final rule would continue to allow CESQG waste to be managed at a
hazardous waste facility or at a reuse or recycling facility. Today's
final rule will require that if CESQG waste is managed in a Subtitle D
disposal facility, it may be managed in a MSWLF that is subject to Part
258 or managed in a non-municipal non-hazardous waste disposal unit
that is subject to the standards being finalized in Secs. 257.5 through
257.30.
VI. Specifics of Today's Final Rule
A. Section 257.5--Applicability
1. Applicability
EPA proposed that any owner/operator of a non-municipal non-
hazardous waste disposal unit that wanted to receive CESQG hazardous
waste would have to comply with the proposed requirements in
Secs. 257.5-257.30 prior to the actual receipt of the CESQG waste. The
proposal stated that owners/operators of non-municipal non-hazardous
waste disposal units that do not meet the proposed criteria may not
receive CESQG hazardous waste.
The proposal further stated that owners/operators of non-municipal
non-hazardous waste disposal units that receive CESQG hazardous waste
after the effective date would have to comply with the location
restrictions (Secs. 257.7-257.12) within 18 months after the date of
publication of the final rule and with the ground-water monitoring and
corrective action requirements (Secs. 257.21-257.28) within 24 months
after the date of publication of the final rule.
The Agency is finalizing the applicability of the final rule as
proposed and retaining the effective dates as proposed. The Agency
received no specific comments in regard to the effective dates with the
exception of one comment that stated that the commentor had no problem
with the two-year effective date for the ground-water monitoring and
corrective action requirements.
2. Definitions
EPA proposed a number of definitions for terms in the proposal and
received limited comments. One commentor thought that the term ''non-
municipal solid waste disposal facility'' should be more appropriately
called ''non-municipal non-hazardous waste disposal facility''. The
commentor stated that by discussing only ''solid waste'' facilities,
hazardous waste facilities are not excluded because they are a subset
of ''solid waste''. Furthermore, this commentor thought the term ''non-
municipal solid waste landfill'' should also more appropriately be
called a ''non-municipal non-hazardous waste disposal facility''. This
same commentor also expressed a concern that the terms ''facility'' and
''unit'' as used in Secs. 257.7 through 257.9 were used interchangeably
and that some clarification and/or consistency was necessary.
The EPA agrees that the term ''non-municipal solid waste disposal
facility'' could be confusing and that the term ''non-municipal non-
hazardous waste disposal facility'' more clearly defines the types of
facilities potentially subject to today's final rule. The EPA also
agrees that the terms ''facility'' and ''unit'' were used
interchangeably and that the term ''unit'' is more appropriate to use
in defining what is potentially subject to today's final rule.
Therefore, in today's preamble and in the final rule language the term
non-municipal non-hazardous waste disposal unit is used.
Correspondingly, the terms ''existing facility'' and ''new facility''
have been changed in the final rule to refer to ''exiting unit'' and
''new unit''. Existing unit refers to any non-municipal non-hazardous
waste disposal unit that is receiving CESQG hazardous waste as of the
effective date (i.e., 18 months after the final rule is published in
the Federal Register). A new unit is any non-municipal non-hazardous
waste disposal unit that has not received CESQG hazardous waste prior
to the effective date (i.e., 18 months after the final rule is
published in the Federal Register).
Today's applicability section (Sec. 257.5) has also been changed to
clarify the situation where a non-municipal non-hazardous waste
disposal unit decides to receive CESQG hazardous waste after the
effective date of today's rule. The applicability section (section
257.5(a)(5)) has been changed to clarify that any non-municipal non-
hazardous waste disposal unit that first receives CESQG hazardous waste
after the date 18 months after the date of publication of this final
rule in the Federal Register
[[Page 34258]]
must be in compliance with all the requirements prior to the receipt of
the CESQG hazardous waste.
One additional change from the proposed rule language concerns the
definition of the term State/Tribal Director. In the proposal the term
State/Tribal Director was defined to mean the chief administrative of
the State/Tribal agency responsible for implementing the State/Tribal
permit program for Subtitle D regulated facilities. The remainder of
the proposed rule language, however, consistently used the term State
Director. This was done as a means of efficiency and the Agency did not
imply any other substantive effect on the character, authority, and/or
rights of Tribes. The final rule will include Indian Tribes in the
definition of the term ''State'' (as was proposed) and Tribal Director
in the definition of ''State Director''. This change is being made to
be consistent with the proposed changes to Part 258 language in the
proposed State/Tribal Permit Program Determination of Adequacy (See 61
FR 2584, January 26, 1996). The State/Tribal Permit Program
Determination of Adequacy contains a complete discussion of the
opportunities that are available to Indian Tribes to apply for program
approval.
B. Sections 257.7-257.13--Location Restrictions
EPA proposed a set of location restrictions for new and existing
units that receive CESQG waste which mirrored restrictions already
established for MSWLFs. 40 CFR 258.10 to 258.16. However, in response
to comment received on the proposal, EPA has modified the proposed
location restrictions in a number of ways. Because units receiving
CESQG waste pose a smaller risk to human health and the environment
than do MSWLF facilities and for the reasons discussed below, EPA
believes that the restrictions being promulgated today satisfy the
statutory standard contained in RCRA Section 4010(c). 42 U.S.C.
Sec. 6949a(c).
1. Airport Safety
EPA proposed that new, existing, and lateral expansions of existing
non-municipal non-hazardous waste disposal units, that receive CESQG
hazardous waste, demonstrate that the unit does not pose a bird hazard
to aircraft. The proposed airport safety provision was the same as the
current Part 257 requirement; only the demonstration requirement to the
affected airport and to the FAA for new and lateral expansions of
existing units was new.
Several commentors objected to the airport safety provision in
Section 257.7 and requested that the provision be removed. Commentors
stated that units that accept CESQG wastes will be non-putrescible
operations that do not provide a source of food or nesting for birds.
One commentor stated that actual observations of over 30 sites across
the country support the conclusion that birds are virtually nonexistent
at C&D units. Lastly, one commentor referenced the recent FAA report
titled ''Draft Report to Congress on Potential Hazards to Aircraft by
Locating Waste Disposal Sites in Vicinity of Airports'', wherein, the
FAA stated that recent FAA sponsored research has shown that non-
putrescible waste landfills (i.e., construction and demolition waste
landfills, . . .) do not attract wildlife that could create a wildlife/
aircraft strike hazard.
In response to commentors concerns, the Agency has eliminated the
airport safety provision from today's final rulemaking. The Agency's
original requirement under Part 257 was designed to regulate units that
dispose of putrescible wastes; based on the fact that units potentially
subject to today's final rule do not receive putrescible wastes (e.g.,
C&D units), the Agency sees no reason to have this requirement as part
of today's final rule.
2. Floodplains
EPA proposed that new, existing, and lateral expansions of existing
non-municipal non-hazardous waste disposal units, that receive CESQG
hazardous wastes, located in the 100-year floodplain 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.
No comments were received on the substance of the floodplain
provision; therefore, the Agency is finalizing the floodplain provision
as it was proposed.
3. Wetlands
The Agency proposed that new facilities and lateral expansions of
existing non-municipal non-hazardous waste disposal units, that receive
CESQG hazardous wastes, not be located in a wetland unless specified
demonstrations can be met by the owner/operator. The demonstrations
were to ensure that if a non-municipal non-hazardous waste disposal
unit needed to be located in a wetland, protection of state water
quality standards and protection of the wetland will be achieved.
Furthermore, the proposal was consistent with the Agency's goal of
achieving no net loss of the nation's wetlands.
No comments were received on the substance of the wetlands
provision, therefore, the Agency is finalizing the wetlands provision
as it was proposed.
4. Fault Areas
EPA proposed that new and lateral expansions of existing non-
municipal non-hazardous waste disposal units, that receive CESQG
hazardous waste, not be located within 200 feet of a fault that has had
displacement in Holocene time unless the owner/operator demonstrates
that an alternative setback distance of less than 200 feet will not
affect the structural integrity of the unit during displacement and
will be protective of human health and the environment.
One commentor questioned the need for a fault area restriction
because this location provision is premised on the fact that if
movement along a fault occurs, the structural integrity of the
engineering features will be disrupted. Given the low risks imposed by
many of the facilities potentially subject to the rule and the fact the
Agency is not regulating the design features (i.e., liners, leachate
collection systems) of these facilities, imposing siting restrictions
is not warranted.
The Agency agrees that the fault area restriction is designed to
guard against disruptions to the engineering features that provide
structural integrity to the unit. Because of the low-risks posed by
non-municipal non-hazardous waste units that receive CESQG waste, EPA
did not propose any liner requirements or other provisions bearing on
the structural integrity of the units. Thus, the Agency agrees that
imposing this restriction is not warranted, and as such, the fault area
restriction is not a part of today's final rule.
5. Seismic Impact Zones
EPA proposed that new and lateral expansions of existing non-
municipal non-hazardous waste disposal units, that receive CESQG
hazardous waste, not be located in seismic impact zones unless the
owner/operator demonstrates that all containment structures are
designed to resist the maximum horizontal acceleration in lithified
earth material for the site.
No specific comments were received on this provision. However, this
provision like the fault area provision, was designed to guard against
disruptions to liners, leachate collection systems, and surface water
control systems, therefore, EPA considers that the logic of the
comments on fault area
[[Page 34259]]
restrictions applies to this restriction as well, and as such, the
Agency sees no reason to include this location restriction as part of
today's final rulemaking.
6. Unstable Areas
EPA proposed that new, existing and lateral expansions of existing
non-municipal non-hazardous waste disposal units, that receive CESQG
hazardous waste, located in an unstable area demonstrate that
engineering measures have been incorporated into the facility design to
ensure that the integrity of the structural components of the facility
will not be disrupted.
As with the seismic impact zone restriction, no specific comments
were received on this part of the proposal. However, for the same
reasons as discussed above under the fault area and seismic impact zone
restrictions, this location restriction is also not part of today's
final rule.
7. Deadline for Making Demonstrations
EPA proposed that existing non-municipal non-hazardous waste
disposal units, that receive CESQG hazardous wastes, that could not
make the demonstrations pertaining to airports, floodplains, or
unstable areas, would not be allowed to accept CESQG hazardous waste
for disposal 18 months after the date of publication of the final rule.
No specific comments were received on this provision of the
proposal. As the final rule only applies to existing units located in
floodplains, this provision has been changed to require that only
existing units in floodplains will not be allowed to accept CESQG
hazardous waste for disposal 18 months after the date of publication of
the final rule.
C. Sections 257.21-257.28--Ground-Water Monitoring and Corrective
Action
1. Applicability
The Agency proposed a number of requirements under the heading
''applicability.'' The Agency proposed that the ground-water monitoring
requirements could be suspended by the Director of an approved State if
the owner/operator could demonstrate that there was no potential for
migration of hazardous constituents from the facility to the uppermost
aquifer during the active life plus 30 years.
The Agency also proposed the existing units had to be in compliance
with the groundwater monitoring requirements within 2 years after the
date of publication of the final rule in the Federal Register. EPA
proposed that new facilities meet the ground-water monitoring
requirements when waste is first placed in the unit. The Director of an
approved State could specify an alternative schedule for compliance for
existing units. The proposed alternative schedule called for 50% of
existing units to be in compliance within 2 years and for all existing
units to be in compliance within 3 years.
The Agency also proposed that ground-water monitoring be conducted
throughout the active life plus 30 years. The director of an approved
State could decrease the 30 year period.
Lastly, the Agency proposed to grant the Director of an approved
State the flexibility to establish and use an alternative list of
indicator parameters for some or all of the constituents listed in
Appendix I (appendix I to Part 258) and to allow small, dry, remote
non-municipal non-hazardous waste disposal units to use an alternative
form of detecting ground-water contamination.
The Agency received no adverse comment on most of these provisions.
The flexibility for small, dry, remote non-municipal units was
considered an example of increased flexibility by a commentor. The
Agency has slightly altered the regulatory language for the proposed
flexibility for small, dry, remote non-municipal non-hazardous waste
disposal units that may be allowed to use alternative forms of
detecting ground-water contamination. The proposed language required,
in two places, that an owner or operator had to submit results or seek
approval of corrective measures within 60 days. These deadlines have
been removed to allow for increased flexibility. The deadlines have
been replaced with language that allows the Director of an approved
State to establish a schedule for the owner or operator for the above
mentioned activities. This change is also being done to be consistent
with the rule language that was proposed for MSWLFs, allowing small,
dry, remote MSWLFs to use alternative forms of detecting ground-water
contamination. See 60 FR 40799, August 10, 1995. The proposed language
allowing for alternatives to be used for small, dry, remote MSWLFs was
the basis for the proposed language to allow small, dry, remote non-
municipal, nonhazardous waste disposal units to also use alternative
forms of detecting ground-water monitoring. See 60 FR 30976, June 12,
1995.
The length of the ground-water monitoring period (i.e., active life
plus 30 years) generated some disagreement. In regard to the length of
the ground-water monitoring period, two commentors concurred with the
Agency's decision to impose the ground-water monitoring period through
the active life plus 30 years. The commentors believed that the time
frame was consistent with other similar rules, and based upon the
flexibility in the rule, was not overly burdensome to units in
comparison to the environmental protection it affords.
Several commentors requested that the Agency reduce the ground-
water monitoring period to a shorter time period or to a time period
based on an individual unit's performance standard. In regard to a
performance standard, one commentor argued a performance standard could
be used by an owner/operator to demonstrate that an alternative time
period is appropriate. One example suggested was that the performance
standard be based on a specified number of years without significant
changes in ground-water quality. No specific number of years was
provided.
In regard to a shorter period of time, commentors generally agreed
that the 30 years was not reflective of the low risks posed by units
that may potentially receive CESQG wastes. One commentor requested 10
years for existing and 15 years for new units. Another commentor stated
that a shorter period was necessary because most States have a post-
closure period that ranges from 5-10 years. A third commentor stated
that applying an extremely burdensome 30 years period places an
economic burden on operators that is not remotely balanced by any real
environmental benefit. This commentor suggested a 5-year period and
that the rules could be extended if problems are discovered during the
5 years. Lastly, one commentor questioned what incentive existed to
monitor groundwater for 30 years beyond the final receipt of waste.
This commentor considered it unreasonable to expect that the monitoring
program will be met after a disposal unit has no further economic
value.
After a consideration of the comments, the Agency has elected to
retain the requirement that ground-water monitoring be conducted for 30
years after the active life of the unit for the same reasons that were
discussed in the proposal. The Agency believes that there is sufficient
flexibility within Sec. 257.21(e) for an approved State to decrease the
30-year period. The final regulation allows the Director of an approved
State to reduce the length of the monitoring period if the owner/
operator demonstrates that a shorter period is adequate to protect
human health and the environment. The Agency expects that States will
reduce
[[Page 34260]]
the length of the monitoring period if an owner/operator can
demonstrate, for example, that no adverse changes in ground-water
quality have been detected for some period of time less than 30 years.
Furthermore, although some commentors expressed concern over the length
of the 30-year period, the Agency did not receive any data supporting
any such reduction in the length of the monitoring period.
Today's final rule continues to provide flexibility for an approved
State to suspend the ground-water monitoring requirements in
hydrogeologic settings that may preclude the migration of hazardous
constituents from the unit to the ground water.
2. Ground-Water Monitoring Systems
The Agency proposed a number of requirements under the proposed
section ''ground-water monitoring systems''. The Agency proposed that
ground-water monitoring systems 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 the quality of ground water passing the
relevant point of compliance. The downgradient monitoring system was to
be installed at the relevant point of compliance, as allowed by the
Director of an approved State, or at the waste management unit boundary
in unapproved States. The relevant point of compliance specified by the
Director of an approved State was proposed to be no more than 150
meters from the waste management unit boundary and located on land
owned by the owner/operator. Furthermore, the proposal allowed for
multi-unit monitoring under specific conditions.
The only area to receive comments was the point of compliance. A
number of commentors expressed concern regarding the 150 meter limit
for the point of compliance. One commentor requested EPA to either
allow a site-specific decision regarding the point of compliance or
allow the use of a point of compliance within the facility boundary. A
second commentor requested that EPA not specify a specific distance but
rather authorize a site-specific identification of a compliance point
based on the location for the potential for exposure. For example, if a
unit is located a considerable distance from a drinking water well,
having the point of compliance 150 meters from the unit boundary may be
needlessly stringent. A third commentor stated that a flexible approach
to establishing the point of compliance is well suited to low-risk
facilities.
After a consideration of the comments, the Agency has decided to
retain the proposed language regarding the point of compliance. The
final rule will require that the downgradient monitoring wells be
installed at the waste management unit boundary in unapproved States or
at the relevant point of compliance, as allowed by the Director of an
approved State. The relevant point of compliance can be up to 150
meters from the waste management unit boundary. The Agency retained the
150 meter limit because the Agency believes it is essential to set a
maximum distance limit for the point of compliance that would limit
ground-water contamination, yet still provide flexibility to owners/
operators of non-municipal non-hazardous waste disposal units that
receive CESQG wastes. A point of compliance set some distance much
farther from the unit boundary would result in a situation where
ground-water contamination, when first detected, would be more wide-
spread and result in higher corrective action costs to remedy the
situation.
The Agency realizes that the point of compliance can have
significant implications associated with the scope, magnitude and cost
of ground-water remedial actions. Because of these implications, the
point of compliance continues to be an area of discussion and debate.
At this point in time, the Agency is finalizing the point of compliance
language for Subtitle D units as described in the proposal for this
rule. However, the Agency is addressing the point of compliance issue
in an Advance Notice of Proposed Rulemaking (ANPR) (See 61 FR 19432,
May 1, 1996) as part of developing regulations concerning ''Corrective
Action for Releases from Solid Waste Management Units at Hazardous
Waste Management Facilities'' (subpart S of 40 CFR part 264). The
Agency intends to use the ANPR to invite comments on a number of
issues, including the point of compliance pertaining to corrective
action under Subtitle C of RCRA. It is possible that future
regulations, which address new point of compliance approaches for
Subtitle C facilities, could also address Subtitle D units subject to
today's final rule.
3. Ground-Water Sampling and Analysis Requirements
The proposal required the use of consistent sampling and analysis
procedures that would be designed to ensure monitoring results that
provide an accurate representation of ground-water quality at the
background and downgradient monitoring wells. The Agency received no
substantial comments on this section of the proposal; therefore, the
sampling and analysis requirements are being finalized as proposed.
Comments concerning sampling and analysis requirements are addressed in
the comment response document associated with this final rule.
4. Detection Monitoring Program
The proposal addressed numerous requirements associated with
detection monitoring, the first phase of ground-water monitoring. The
majority of the proposed requirements pertained to which constituents
had to be monitored for and the required frequency of monitoring. The
proposal required that those constituents identified in Appendix I of
part 258 were to be monitored for during the detection monitoring phase
of ground-water monitoring and that the frequency of monitoring was to
be at least semi-annual. The proposal also specified the areas of
flexibility that existed for an owner/operator during detection
monitoring.
The Agency received no comments on the frequency of monitoring
during the detection monitoring period, and as such, the final rule
requires at least semi-annual monitoring during detection monitoring.
The final rule also continues to allow the Director of an approved
State to specify an alternative frequency of monitoring during the
active life plus 30 years (no less than annual during the active life).
The Agency did receive some comments regarding the constituents to
be monitored for during detection monitoring. A commentor raised the
issue of developing a new list of ground-water parameters for
facilities that accept CESQG wastes. Another commentor stated that
MSWLFs contain a much larger portion of waste that is biodegradable and
therefore creates its own chemical degradation byproducts. Unless EPA
has data that shows that leachates from non-municipal non-hazardous
waste facilities are similar to municipal solid waste landfills, the
Agency should not be imposing similar requirements. According to the
commentor, the ground-water monitoring program should require testing
only for constituents that are related to the waste accepted at the
facility, not a list of constituents that could be found at any
facility that may accept CESQG wastes. Lastly, the commentor stated
that the monitoring parameters should be representative of
[[Page 34261]]
those constituents that are most mobile in the ground-water environment
so that early detection is accomplished without undue cost of over
regulation.
After a consideration of the comments, the Agency has decided to
retain the requirements as proposed in the detection monitoring section
of the proposal. The Agency believes that developing a new list of
ground-water constituents for facilities that accept CESQG wastes would
cause undue confusion for the regulated community. However, EPA has
provided some flexibility for approved States in regard to testing for
constituents that are related to the wastes accepted at the unit.
Today's final rule provides flexibility to the Director of an approved
State to remove from the detection monitoring list of constituents, any
constituent that is not reasonably expected to be in or derived from
the waste contained in the unit. Furthermore, the Director of an
approved State may establish an alternative list of indicator
parameters in lieu of some or all of the constituents in appendix I of
part 258, if the alternative indicator parameter(s) provides a reliable
indication of releases from the unit to the ground water.
The June 1995 proposal allowed the Director of an approved State to
develop only an alternative list of inorganic indicator parameters; the
organic parameters in appendix I of part 258 were to be monitored for
and no substitutions were allowed. However, in today's final rule, the
Agency has provided additional flexibility in that the Director of an
approved State can establish an alternative list of indicator
parameters for some or all of the constituents in appendix I of part
258 including the organic constituents. The Agency has provided this
area of increased flexibility because an alternative list of indicator
parameters, approved by the Director of an approved State, could be
appropriate in specific circumstances, and the Agency continues to
believe that the risks posed by non-municipal non-hazardous waste
disposal units that may elect to receive CESQG wastes is relatively
small when compared to MSWLFs. Non-municipal non-hazardous waste units
that elect to receive CESQG wastes will be mostly C&D units. The Agency
stated in the proposal for this rulemaking, that these types of units,
in general, do not pose a significant risk. As such, the Agency
believes that Directors of approved State programs can exercise
additional flexibility in establishing the appropriate list of
detection monitoring constituents or indicator parameters.
This area of increased flexibility can serve to alleviate
commentor's concerns regarding the appropriate parameters to monitor
for during detection monitoring. This area of flexibility will allow
the Director of an approved State to tailor the detection monitoring
list to those wastes accepted at the facility and/or those that are
expected to be a concern due to mobility. One commentor expressed
concern that the detection monitoring list (Appendix I to Part 258) for
today's final rule should not be identical to the detection monitoring
list developed for municipal solid waste landfills. The Agency,
however, believes that leachates from non-municipal units are somewhat
similar, in that some of same types of organics and inorganics can
appear in non-municipal leachates but at lesser concentrations, and as
such, saw no reason to create a separate and new detection monitoring
list.
5. Assessment Monitoring Program
The proposal would have required that once a statistically
significant increase over background was detected during detection
monitoring, a full assessment of any impacts on ground-water quality
had to be undertaken. The purpose of assessment monitoring was to
sample for a larger list of constituents to determine which were
present. The assessment monitoring program also required the
establishment of ground-water protection standards.
The Agency received no comments on the proposed assessment
monitoring requirements; therefore, the assessment monitoring program
requirements are being finalized as proposed.
6. Assessment of Corrective Measures, Selection of Remedy, and
Implementation of the Corrective Action Program
The proposal required that once a statistically significant
increase was detected over the ground-water protection standard for any
constituent detected during assessment monitoring, the owner/operator
was required to assess available corrective measures. Available
corrective measures were those that could meet the performance
standards established under the proposed selection of remedy
requirements. Lastly, the proposal would have required that once a
corrective measure was selected, the owner/operator would be required
to implement the selected remedy.
The Agency received no comments on the proposed corrective action
requirements; therefore, the corrective action requirements are being
finalized as proposed.
D. Section 257.30--Recordkeeping Requirements
EPA proposed that owners/operators of non-municipal non-hazardous
waste disposal units record and retain various pieces of information in
an operating record. The operating record was proposed to be at the
facility or at an alternative location as approved by the Director of
an approved State. The following type of information was proposed to be
retained: any location restriction demonstration and any demonstration,
certification, finding, monitoring, testing, or analytical data
required as part of complying with the ground-water monitoring and
corrective action requirements.
No comments were received on the substance of the recordkeeping
requirements; therefore, the Agency is finalizing the recordkeeping
requirements provision as it was proposed.
E. Special Requirements for Hazardous Waste Generated by Conditionally
Exempt Small Quantity Generators
1. Changes to Section 261.5
The proposal would have amended the existing language of Sec. 261.5
by establishing acceptable Subtitle D management options for CESQG
waste. The existing language in Sec. 261.5, paragraphs (f)(3) and
(g)(3), allows for a CESQG hazardous waste to be managed at a hazardous
waste facility (either in interim status or permitted), a reuse or
recycling facility, or a non-hazardous solid waste facility that is
permitted, licensed, or registered by a State to manage municipal or
industrial wastes. The proposed rule would have continued to allow
CESQG waste to be managed at a hazardous waste facility, or at a reuse
or recycling facility; however, the proposal would have required that
if CESQG waste was to be managed at a Subtitle D disposal facility, it
must be managed in a MSWLF that is subject to Part 258 or a non-
municipal non-hazardous waste disposal unit that is subject to the
standards that were proposed for units receiving CESQG waste.
Commentors supported the proposed rule changes to paragraphs (f)(3)
and (g)(3) in Sec. 261.5 regarding waste generated by CESQGs.
Commentors stated that the continuation of the CESQG rules was very
important as these rules were developed to ease the burden of small
generators. Other commentors also supported the proposed generator
changes for various reasons: proposed changes will help CESQGs ensure
that their wastes are properly managed, CESQGs may
[[Page 34262]]
investigate the recycling or reuse of their waste streams, or use of
alternative, less-hazardous materials in their operations, and the
proposed changes are a wise-policy decision.
Given the agreement that commentors had with the proposed changes
to Sec. 261.5, the Agency has decided to largely finalize the
requirements as proposed.
One small change has been made in today's final rule language,
however, in paragraphs (f)(3) and (g)(3). This small conforming change
deals with final regulatory language that was developed in the
universal waste rule (see 60 FR 25541, May 11, 1995). Universal wastes
are the following hazardous wastes that are subject to the universal
waste rule: batteries as described in 40 CFR 273.2, pesticides as
described in 40 CFR 273.3, and thermostats as described in 40 CFR
273.4. The conforming changes are found in today's final rule language
in paragraphs (f)(3)(vii) and (g)(3)(vii). The conforming changes in
today's final rule allow a CESQG to manage universal wastes in a
facility that is a universal waste hauler or destination, provided that
facility is subject to the universal waste requirements in 40 CFR Part
273. See 60 FR 25492, May 11, 1995. The possibility that some CESQG
waste could be considered a universal waste was discussed in the
proposal to this final rule. See 60 FR 30968, June 12, 1996.
RCRA Section 3010(b) states that regulations respecting
requirements applicable to the generation, transportation, treatment,
or disposal of hazardous waste that are promulgated under Subtitle C
shall take effect six months after the date of promulgation. The
Administrator is authorized to establish a shorter effective date. 42
U.S.C. 6930(b).
The revisions to 40 CFR Section 261.5 and 271.1 are being
promulgated, in part, under RCRA section 3001(d)(4), and thus, are
subject to the six month effective date provision in section 3010(b).
In the proposed rule, EPA stated that it intended to make these
revisions to the Subtitle C regulations effective 18 months after their
publication so as to coincide with the effective dates of the Subtitle
D provisions. See 60 FR 30979. In the final rule, EPA is making the
Subtitle C provisions effective in six months in accordance with RCRA
section 3010(b). However, to ensure that there will be consistency in
implementation of both the Subtitle C and D provisions, as suggested in
the proposal, EPA has chosen to delay the compliance date for the
Subtitle C provisions until 18 months after today's date. Thus,
although the Subtitle C revisions go into effect in six months, those
who generate CESQG waste will have to comply with the revised disposal
standards in section 261.5 (f)) and (g) only when the Subtitle D
revised location restrictions for CESQG waste go into effect in 18
months. The final rule language for section 261.5 and 271.1 reflect
this delayed compliance date.
2. CESQG Wastes
Comments were received concerning various aspects related to the
requirements for CESQGs. Comments were also received requesting that
the Agency provide a clearer picture of what constitutes a CESQG waste.
Lastly, other commentors stated that the final rule needed to have a
screening requirement in place for facilities that elect not to receive
CESQG wastes.
In regard to the comments concerning the need to better identify
what is a CESQG waste, the proposal identified examples of CESQG
wastes, particularly for the construction and demolition waste
industry. See 60 FR 30967, June 12, 1995. CESQG hazardous wastes
generated in the construction, renovation, and demolition waste
industry are more likely to be specific chemicals or products used in
these activities. Building demolition debris can be a CESQG waste if
based on generator knowledge or a representative sample of the entire
building debris, the building debris is determined to be a hazardous
waste (i.e., it exhibits one of the four characteristics of a hazardous
waste), and if hazardous, is under the waste quantity cutoff limit for
a CESQG waste (See 60 FR 30967, June 12, 1995).
Commentors requested a comprehensive listing of C&D wastes which
may be typically hazardous. The Agency's supporting document
''Construction and Demolition Waste Landfills'' identified a number of
wastes that were considered potentially ''hazardous'' by various
sources. The Agency continues to believe, as stated in the proposal,
that not all of the wastes identified in the report are hazardous as
determined under Subtitle C; however, the listing provided in the
supporting document provides an indication of the types of wastes that
may be present in the construction and demolition waste industry that
could be a concern. Given that the Subtitle C and D regulations are
generally implemented by the States, the Agency believes that owners/
operators should work with their State Agencies to determine what
specific rules or guidance applies with regard to the types of wastes
that their State Agency considers to be hazardous.
3. Screening Procedures
Comments were also received requesting that the Agency acknowledge
the use of existing screening procedures. With regard to the comments
concerning the need to acknowledge the use of existing screening
procedures and the need to have a screening procedure in place for
facilities that elect not to receive CESQG wastes, the proposal did not
require non-municipal non-hazardous waste disposal units to screen
incoming wastes in order to assure that they were not receiving CESQG
wastes. Rather, it left it up to the owner/operator to assure, through
what ever means he/she determined, that the facility was not receiving
CESQG waste. This could include certifications by waste haulers that
their wastes destined for the facility will not contain CESQG wastes,
written prohibitions in contracts between waste haulers and the owner/
operator stating that the facility does not receive CESQG waste for
disposal, and/or random screening procedures at the facility.
Commentors were concerned that CESQG wastes would find their way into
C&D landfills that elect not to upgrade and comply with today's final
requirements, particularly given that the proposal did not require the
use of a formal screening procedure to prove that the facility was not
receiving CESQG wastes. Specifically, one commentor stated that without
a stringent method of restricting wastes and documenting these efforts,
C&D landfills that do not meet the proposed requirements may become
low-cost alternatives for the unscrupulous. Two other commentors stated
that the proposed rule, as written, lacked an affirmative demonstration
on the part of a facility that elected not to comply with the proposed
requirements, that the facility was in reality not receiving CESQG
waste for disposal. The commentor argued that ''without a screening
method at facilities that elect not to comply, the proposed rule is
insufficient to satisfy the mandate of RCRA Section 4010(c)''. Several
of these commentors suggested the use of the screening procedure
specified in the Part 258 Criteria for municipal solid waste landfills.
Other commentors acknowledged that screening exists today for C&D
facilities and that it is successful. Screening is done at most C&D
facilities and, thus, regulatory criteria made applicable to such
facilities should take into account screening practices that
significantly reduce the risks that C&D facilities present to human
health and the environment. These commentors wanted EPA to expressly
acknowledge
[[Page 34263]]
that screening programs reduce risks at C&D facilities or to develop a
regulatory approach that allows C&D facilities with established
screening programs to be exempted from a majority of the proposed
criteria or EPA should develop relaxed regulatory criteria that take
into account such risk-reduction operational practices.
The proposal explained that owners/operators implementing a
screening procedure should contact their State Agency to determine that
the screening procedure ensures that the facility does not receive
CESQG wastes. Responding to this statement, one commentor said that the
Agency should not delegate this obligation to the states because doing
so will lead to unwarranted lawsuits against owners/operators that do
not want to accept CESQG wastes and confusion at the state level caused
by widely divergent screening requirements that may or may not be
acceptable.
In response to the comments about the need for screening
requirements as part of today's final rule, the Agency is concerned
that the establishment of specific and/or detailed screening standards
would limit flexibility that owners/operators and State Agencies have
in developing an appropriate screening method, if one is considered
necessary. Under the rule as proposed and promulgated, if an owner/
operator of a non-municipal non-hazardous waste disposal unit elects
not to receive CESQG wastes, and therefore, does not upgrade to meet
the requirements in today's final rule, he/she is not legally allowed
to accept CESQG wastes. See 40 CFR 257.5(a)(3). If the owner/operator
does accept CESQG wastes, then he/she would be in violation of today's
final rule and would be subject to enforcement actions. See 40 CFR
257.5(a)(1). CESQGs that send their CESQG waste to landfills that are
not subject to today's requirements for non-municipal units would,
likewise, be subject to enforcement actions.
Owners/operators that elect not to upgrade and therefore not
receive CESQG hazardous wastes, may on their own elect to develop a
screening procedure that is effective in screening out CESQG materials.
Owners/operators who elect to develop a screening procedure are
encouraged to work with their State Agency to determine what screening
procedures, may at a State level be required, recommended or in
guidance. The Agency believes that the adoption of a Federal screening
program as a condition of not receiving CESQG hazardous waste, will
limit the flexibility that both States and owners/operators can
exercise in developing a successful screening program. The Agency does
not want to interfere in the development of acceptable screening
programs that, based on comments received on this rule, can be
developed and are being used in the field .
VII. Implementation of Today's Final Rule
A. State Activities Under Subtitle C (Regulation of CESQGs of Hazardous
Waste)
1. Hazardous and Solid Waste Amendments to RCRA
Today's final rule changes the existing requirements in Sec. 261.5,
paragraphs (f)(3) and (g)(3) pertaining to the special requirements for
CESQGs. Under Section 3006 of RCRA, EPA may authorize qualified States
to administer and enforce the RCRA program within the State. (See 40
CFR Part 271 for the standards and requirements for authorization.)
Following authorization, EPA retains enforcement authority under
Sections 3008, 7003 and 3013 of RCRA, although authorized States have
primary enforcement responsibilities.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final authorization administered its hazardous waste program
entirely in lieu of EPA administering the Federal program in that
State. The Federal requirements no longer applied in the authorized
State, and EPA could not issue permits for any facility which the State
was authorized to permit. When new, more stringent, Federal
requirements were promulgated or enacted, the State was obliged to
enact equivalent authority within specified time frames. New Federal
requirements did not take effect in an authorized State until the State
adopted the requirements as State law.
In contrast, under Section 3006(g) of RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time they take effect in unauthorized States. EPA is
directed to carry out these requirements and prohibitions in previously
authorized States, including the issuance of permits and primary
enforcement, until the State is granted HSWA authorization to do so.
While States must still adopt HSWA-related provisions as State law to
retain final authorization, the HSWA provisions apply in authorized
States in the interim.
The amendments to Sec. 261.5, paragraphs (f)(3) and (g)(3), are
finalized pursuant to section 3001(d)(4) of RCRA, which is a provision
added by HSWA. Therefore, the Agency has added the requirements to
Table 1 in Sec. 271.1(j) which identifies the Federal program
requirements that are promulgated pursuant to HSWA and that take effect
in all States, regardless of their authorization status. States may
apply for either interim or final authorization for the HSWA provisions
identified in Table 1.
2. Effect on State Authorizations
As noted above, EPA will implement today's rule (i.e., the revision
to Sec. 261.5) in authorized States until they modify their programs to
adopt the Section 261.5 rule change and the modification is approved by
EPA. Because the rule has been finalized pursuant to HSWA, a State
submitting a program modification may apply to receive either interim
or final authorization under Section 3006(g)(2) or 3006(b),
respectively, on the basis of requirements that are substantially
equivalent or equivalent to EPA's. The procedures and schedule for
State program modifications for either interim or final authorization
are described in 40 CFR 271.21. It should be noted that all HSWA
interim authorizations will expire January 1, 2003. (See Sec. 271.24(c)
and 57 FR 60129 (December 18, 1992)).
40 CFR 271.21(e)(2) provides that States that have final
authorization must modify their programs to reflect Federal program
changes, and must subsequently submit the modifications to EPA for
approval. The deadline by which the State must modify its program to
adopt these regulations and submit its application for approval is
specified in 40 CFR 271.21(e). These deadlines can be extended in
certain cases (40 CFR 271.21(e)(3)). Once EPA approves the
modification, the State requirements act in lieu of Subtitle C RCRA
requirements.
States with authorized RCRA programs may already have adopted
requirements under State law similar to those in today's rule. These
State regulations have not been assessed against the Federal
regulations being finalized today to determine whether they meet the
tests for authorization. Thus, a State is not authorized to implement
these requirements in lieu of EPA until the State program modification
is approved. Although revisions to 40 CFR Parts 257 and 261 are being
finalized, for the purpose of authorization under Subtitle C, only the
final changes to Sec. 261.5 would be assessed against the Federal
program. Of course, States with existing standards may continue to
administer and enforce their standards as a matter of State law. In
implementing the Federal program, EPA will work with States under
cooperative agreements to minimize
[[Page 34264]]
duplication of efforts. In many cases EPA will be able to defer to the
States in their efforts to implement their programs, rather than take
separate actions under Federal authority.
States that submit their official applications for final
authorization less than 12 months after the effective date of these
standards are not required to include standards equivalent to these
standards in their application. However, the State must modify its
program by the deadlines set forth in Sec. 271.21(e). States that
submit official applications for final authorization 12 months after
the effective date of these standards must include standards equivalent
to these standards in their applications. 40 CFR 271.3 sets forth the
requirements a State must meet when submitting its final authorization
application.
3. States With More Stringent Programs
EPA is aware that a number of States have more stringent
requirements for the disposal of waste generated by CESQGs. In
particular, some States do not allow the disposal of this waste into
any Subtitle D landfill (i.e., some States do not allow permitted
MSWLFs to accept CESQG hazardous waste). For these States, today's
final rule would clearly be considered less stringent than the
applicable provisions in these States' authorized programs. Section
3009 of RCRA allows States to adopt or retain provisions that are more
stringent than the Federal provisions. Therefore, regarding today's
final rule, EPA believes that States which do not allow the disposal of
wastes generated by CESQGs into Subtitle D landfills under their
existing authorized Subtitle C program would not be required to revise
their programs and obtain authorization for today's proposed rule. Of
course this situation would only apply in those cases where a State is
not changing its authorized regulatory language. Further, the
authorized State requirements in such States, since they would be more
stringent than today's final rule, would continue to apply in that
State, even though today's rule is proposed pursuant to HSWA authority.
For a State to not be required to submit an authorization revision
application for today's final rule, the State must have provisions that
are authorized by EPA and that are more stringent than the analogous
Subtitle C provisions in today's rule. For those States that would not
be required to revise their authorization, EPA encourages States to
inform their EPA Regional Office by letter that for this final rule,
they are not required to submit a revision application pursuant to 40
CFR 271.21(e), because in accordance with RCRA Section 3009 the
authorized State provision currently in effect is more stringent than
the requirements contained in today's final rule. Otherwise, EPA might
conclude that a revised authorization application is required.
B. State Activities Under Subtitle D (Regulation of Receiving Non-
Municipal Non-Hazardous Units)
States are the lead entities in implementing and enforcing Subtitle
D rules. The Agency intends to maintain the State's lead in
implementing the Subtitle D program. RCRA Section 4005 requires States
to adopt and implement, within 18 months of the publication of a final
rule, a permit program or other system of prior approval and conditions
to ensure that non-municipal non-hazardous waste disposal units
receiving CESQG waste comply with today's standards. The statute
requires EPA to determine whether States have developed adequate permit
programs. States will need to review their existing programs to
determine where their programs need to be revised and to complete
program changes, if changes are necessary. The process for evaluating
the adequacy of State programs has been set forth in a separate
proposal, the State/Tribal Permit Program Determination of Adequacy.
See 61 FR 2584, January 26, 1996.
For the purpose of determining adequacy and granting approval under
Subtitle D for today's rule, only the proposed technical changes in
Secs. 257.5 through 257.30 will be evaluated by the Agency. The State
may need to meet other procedural and administrative provisions
identified in the State/Tribal Permit Program Determination of
Adequacy. EPA policy on approval of permit programs for non-municipal
non-hazardous waste disposal units receiving CESQG waste is the same
process that the Agency used for determining the adequacy of State
programs for the Municipal Solid Waste Landfill Criteria. In States
already approved for the Part 258 MSWLF Criteria, changes required by
this rulemaking will constitute a program revision.
The Agency believes that for many approved States, changes required
by this rulemaking will affect the technical Criteria only and should
warrant limited changes to the approved State program. For example, if
non-municipal non-hazardous waste disposal units subject to this rule
are already subject to an approved State MSWLF program (i.e., the non-
municipal non-hazardous waste disposal units receiving CESQG waste are
currently subject to the Part 258 location restrictions, ground-water
monitoring, and corrective action criteria), the State may only be
required to submit documentation that the non-municipal non-hazardous
waste disposal units receiving CESQG waste are subject to their
approved program. In most cases, the Agency anticipates that a
streamlined approval process would be appropriate. States are
encouraged to contact their appropriate EPA Regional office to
determine the specifics of the approval process.
In the proposed State/Tribal permit program determination of
adequacy, the Agency originally proposed that a streamlined approval
process would not be used for permit programs that related to
additional classifications other than MSWLFs. See 61 FR 2599, January
26, 1996. As suggested above, the Agency is re-evaluating its proposed
position and a final determination will be made in the final State/
Tribal permit program determination of adequacy.
In States that have not been approved for the MSWLF Criteria, these
revisions can be incorporated into an application for overall program
approval of Part 258 and Secs. 257.5 through 257.30. For purposes of
today's rule, States that currently restrict CESQG disposal to Subtitle
C facilities (and States that may choose to adopt that restriction) or
approved States which currently restrict CESQG disposal to Part 258
municipal solid waste landfills will not need to seek further EPA
approval of their Subtitle D program. RCRA Section 4005(c)(1)(B)
requires States to adopt and implement permit programs to ensure that
facilities which receive CESQG waste will comply with the revised
Criteria promulgated under Section 4010(c). However, the Agency sees no
need for approved States that already require CESQG waste to be
disposed of in either Subtitle C facilities or facilities subject to
the Part 258 MSWLF Criteria to adopt and implement a permit program
based upon the standards being finalized today.
RCRA Section 7004(b)(1) requires the Administrator and the States
to encourage and provide for public participation in the development,
revision, implementation, and enforcement of this regulation and, once
it is promulgated, in the State permit programs which implement it. EPA
provides for public participation in its decisions on whether State
permit programs are adequate under RCRA Section 4005(c)(1)(c). In
developing and implementing permit programs, States must provide for
public participation in accordance with the provisions of 40 CFR Part
239 (specifically Sec. 239.6).
[[Page 34265]]
Permit programs have been defined in the proposed State/Tribal Permit
Program Determination of Adequacy to include other systems of prior
approval and conditions, including licenses or registrations.
C. Summary of Comments and EPA Response
Several commenters supported EPA's approach in the proposal toward
States with approved Subtitle D programs that have CESQG disposal
restrictions in their Subtitle D programs. In particular, the
commenters supported EPA's statement that States which require CESQG
waste to be disposed of in either Subtitle C facilities or facilities
subject to the part 258 MSWLF Criteria do not need EPA approval for a
permit program based on today's final (Subtitle D) standards. However,
the commenters believed that for these States, the absence of a
required EPA approval should be extended to the Subtitle C program.
EPA believes that its approach toward States with programs that are
more stringent than this final rule is the same for both the Subtitle C
and Subtitle D programs. Those States with approved Subtitle D or
authorized Subtitle C program that do not allow CESQG waste to be
disposed of in a landfill addressed by today's technical standards do
not need approval by EPA for that program. EPA's position is detailed
in sections VII.A. and VII.B. above. EPA believes that since the
existing approved State requirements are more stringent than the
provisions in today's rule, in such States, program revisions are not
necessary for the State programs to remain at least equivalent to the
Federal rules.
Other commenters raised the possibility of State self-certification
for State authorization for both the RCRA Subtitle C and D programs,
particularly where the State already has rules that are equivalent to
today's rule in its waste management programs. The commenters argued
that this self-certification will result in significant resource
savings.
Regarding the commenters suggestion on allowing State self-
certification, EPA is currently examining this issue for Subtitle C
authorization as part of the HWIR-Media rulemaking (see 61 FR 18780,
April 29, 1996). In the proposed Phase IV LDR rule, EPA proposed an
abbreviated authorization process for new minor rule changes (see 60 FR
43686, August 22, 1995). Although this authorization proposal did not
address the rule changes in the June 12, 1995 proposal, EPA is
committed to streamlining the Subtitle C authorization process.
EPA believes that the authorization process for the Subtitle C
portion of today's final rule will be very straightforward because
today's rule only added two new provisions to the hazardous waste
regulations. EPA will work with States and EPA regions to ensure that
the Subtitle C authorization process for this rule will be completed
swiftly. EPA believes that it can take such certifications into account
to a large degree, thereby, greatly reducing review time. Further, EPA
believes that many States will not require revisions to their
authorized programs because their authorized programs are currently
more stringent than today's rule.
D. Owner/Operator Responsibilities
1. Owner/Operator Responsibility and Flexibility in Approved States
The regulatory structure of the Part 258 MSWLF Criteria is based on
an owner/operator achieving compliance through self-implementation with
the various requirements while allowing approved States the flexibility
to consider local conditions in setting appropriate alternative
standards that still achieve compliance with the basic goal of the Part
258 Criteria. This flexibility that exists for approved States under
Part 258 has been retained in today's final rule and can be used by
approved States in determining facility specific requirements. Owners/
operators of non-municipal non-hazardous waste disposal units that are
receiving CESQG wastes as of the effective dates of today's final rule,
due to the self-implementing nature of this final rule, would be
required to comply with the promulgated standards regardless of the
status of the States approval determination under Subtitle D. If an
owner/operator of a non-municipal non-hazardous waste disposal unit is
receiving CESQG waste and is located in a State that has not been
approved under Subtitle D for these revised criteria, then the owner/
operator would have to comply with the promulgated standards, without
the benefit of the flexibility allowed to be granted by the Director of
an approved State.
Owners/operators of non-municipal non-hazardous waste disposal
units that receive CESQG waste and are located in approved States may
be subject to alternate requirements based on the approved State
standards.
2. CESQG's Responsibilities Relating to the Revisions in Sec. 261.5,
Paragraphs (f) and (g)
Today's final rule allows that CESQG waste go to either a hazardous
waste facility, a reuse or recycling facility, a municipal solid waste
landfill subject to Part 258, a non-municipal solid waste disposal
facility that is subject to the requirements being proposed in
Secs. 257.5 through 257.30 or a solid waste management facility (i.e.,
incinerator) that is permitted, licensed, or registered by a State to
manage municipal or non-municipal waste. Today's final rule does not
mandate that CESQG waste go to a MSWLF or to a non-municipal non-
hazardous waste disposal unit subject to today's final requirements.
These are just two of the options as to where CESQG hazardous waste can
be send for management.
The Agency does not believe that today's final rule amendment to
Sec. 261.5 will result in a larger obligation for any CESQG. The Agency
knows that the majority of CESQG waste is managed off-site. For the
CESQG waste managed off-site, recycling is the predominant form of
management. The Agency assumes that for the small amount of CESQG waste
that is currently being sent off-site to a MSWLF, this practice can
continue to occur, as long as allowed under State regulations, as all
MSWLFs where CESQG waste could be sent are subject to Part 258.
Hazardous waste regulations applicable to CESQGs require that CESQG
hazardous waste be managed in a unit permitted, licensed, or registered
by the State to manage municipal or industrial waste. Those CESQGs,
including construction and demolition waste generators, who wish to
send their CESQG waste to a non-municipal non-hazardous waste disposal
unit and are uncertain whether the unit has the appropriate permit,
license, or registration should contact his/her State Agency to
ascertain if the non-municipal non-hazardous waste disposal unit in
question can legally accept CESQG waste.
A CESQG may elect to screen-out or segregate out the CESQG
hazardous wastes from his non-hazardous waste and then manage the CESQG
hazardous portion in compliance with today's final amendments to
Sec. 261.5(f)(3) and (g)(3). The remaining non-hazardous waste would
not be subject to the final requirements in Sec. 261.5; however, it
must be managed in a facility that complies with either the Part 258
Criteria or the existing Criteria in Secs. 257.1-257.4. On the other
hand, a CESQG may elect not to screen-out or segregate the CESQG
hazardous waste
[[Page 34266]]
preferring instead to leave it mixed with the mass of non-hazardous
waste. If the CESQG elects this option, the entire mass of material
must be managed in a Subtitle C or Subtitle D facility as per today's
final language in Sec. 261.5.
E. Enforcement
1. Hazardous Waste Enforcement
Today's final rule amends Sec. 261.5, paragraphs (f)(3) and (g)(3),
and as such any CESQG who mismanages their CESQG hazardous waste on-
site or delivers the CESQG hazardous waste to an inappropriate Subtitle
D facility becomes subject to enforcement actions which could include
loss of CESQG status for any CESQG waste that is improperly disposed
of.
2. Subtitle D Enforcement
States that adopt programs meeting the standards in Secs. 257.5
through 257.30 may enforce them in accordance with State authorities.
Under RCRA Section 7002, citizens may seek enforcement of the standards
in Secs. 257.5 through 257.30 independent of any State enforcement
program. Section 7002 provides that any person may commence a civil
action on his/her own behalf against any person who is alleged to be in
violation of any permit, standard, regulation, condition, requirement,
prohibition, or order that has become effective pursuant to RCRA. Once
the self-implementing provisions in Secs. 257.5 through 257.30 become
effective, they constitute the basis for citizen enforcement. Federal
enforcement by EPA can be done only in States that EPA has determined
have inadequate programs. EPA has no enforcement authorities under
Section 4005 in approved States. EPA does, however, retain enforcement
authority under Section 7003 to protect against imminent and
substantial endangerment to health and the environment in all States.
VIII. Executive Order 12866
Under Executive Order No. 12866, EPA must determine whether a new
regulation is significant. A significant regulatory action is defined
as an action likely to result in a rule that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Pursuant to the terms of the Executive Order 12866, it has been
determined that this rule is a ''significant regulatory action''
because it raises novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
A. Cost Impacts
In the Cost and Economic Impact Analysis (May, 1995) accompanying
the proposed rule, the Agency estimated the total annual costs to the
economy resulting from the proposed rule ranged from $10.0 million to
$47.0 million.
The national low-end cost assumes that all CESQG hazardous waste is
separated at the point of generation for the construction industry. It
assumes there will be no CESQG waste generated by the demolition
industry. The CESQG portion is disposed of at hazardous waste
facilities while the remaining non-hazardous waste portion is disposed
of in non-upgraded construction and demolition waste facilities. The
costs include the separation costs at the point of generation, costs of
transporting/disposing the hazardous portion at a Subtitle C facility,
and the costs of screening incoming wastes at all of the construction
and demolition waste facilities.
The national annual high-end cost assumes that generators will not
separate out CESQG waste from 30% of construction and demolition wastes
and that this fraction will be sent to upgraded construction and
demolition waste facilities that elect to comply with today's proposed
requirements. Under this scenario, the Agency assumed that most medium
to large size construction and demolition waste facilities (162) will
upgrade. The costs include separation costs at the point of generation
for waste not going to an upgraded landfill, costs of screening
incoming wastes at 80% of the affected construction and demolition
waste facilities which do not upgrade and costs for 20% of the affected
construction and demolition wastes facilities to upgrade. Upgrade costs
include ground-water monitoring and corrective action.
Upon receipt and incorporation of public comments, the Agency
prepared a revised Cost and Economic Impact Analysis (June, 1996). In
the revised analysis, the Agency estimates the total annual costs to
the economy for today's final rule will range from $12.65 to $51.0
million dollars. These costs fall upon approximately three types of
facilities: 600 manufacturing-sector CESQGs, at an average annual cost
of $280 per facility; 10,000 construction-sector CESQGs, at an average
cost of $930 per facility; and 700 construction/demolition waste
landfills, at an average cost of $4500 per facility.
One commentor suggested that EPA had understated the costs of
compliance with the new regulation. The commentor supported this
conclusion based on several contentions:
(1) The commentor maintained that EPA's estimates of total
construction and demolition wastes were flawed because some data
sources were inappropriate, including European data. Although EPA
agrees that U.S. data would be preferable, the European information
provided an important and relevant insight for our analysis. EPA
believes that many aspects of construction technology are similar from
one developed western country to another. EPA also notes that the
costing methodology used in the analysis rests mostly on costs per
facility, rather than costs per ton.
(2) The commentor suggested that EPA underestimated the labor
required for screening hazardous waste at construction/demolition waste
landfills. Data that EPA has collected from construction/demolition
landfill owner/operators, however, indicates that screening programs
are already in affect at most of these facilities. EPA has collected
information on the number of hours required for screening wastes per
year per landfill, and believes that the nationwide estimate of one
additional hour of labor per day per landfill is reasonable.
(3) The commentor also suggested that EPA had underestimated the
amount of labor which would be required to separate wastes at
construction sites. The Cost and Economic Impact Analysis estimated one
labor hour per week per company for separating hazardous wastes. Since
a company can have multiple job-sites operating simultaneously, the
commentor indicated that it would be more reasonable to estimate one
hour per job-site, rather than per company. EPA agrees, and notes that
the wording in the original analysis was incorrect; the estimate was
actually labor hours per establishment, where each establishment
represents a group of job sites. Therefore, EPA has used the
[[Page 34267]]
costing methodology that the commentor recommends.
(4) Finally, the commentor disputes EPA's estimate of the hourly
labor cost for screening wastes at the landfill and separating wastes
at the generator site. EPA re-examined the labor costs, consulting with
the Bureau of Labor Statistics and a standard construction industry
costing guide. As a result, EPA agrees with this comment and has
adjusted the labor figure by 27% (from $13.60 per hour to $17.32 per
hour).
Further discussion of the cost analysis can be found in Cost and
Economic Impact Analysis of the CESQG Rule, June 1996, available in the
docket.
B. Benefits
The Agency believes that the requirements being proposed for non-
municipal solid waste disposal facilities will result in more Subtitle
D facilities providing protection against ground-water contamination
from the disposal of small amounts of hazardous waste. Today's action
will force some non-municipal solid waste disposal facilities to either
upgrade and install ground-water monitoring and perform corrective
action if contamination is detected, or stop accepting hazardous waste.
Today's action will also cause some generators of CESQG wastes to
separate out these small quantities of hazardous waste and send them to
more heavily regulated facilities (i.e., Subtitle C facilities or
MSWLFs). These are the direct benefits of today's proposal, however,
additional benefits will be realized due to this proposal.
Today's final rule will require that any ground-water contamination
that is occurring at units that continue to receive CESQG hazardous
waste will be quickly detected, and therefore, corrective action can be
initiated sooner avoiding a more costly corrective action.
To the extent that existing non-municipal non-hazardous waste
disposal units that receive CESQG hazardous waste upgrade their units
to include ground-water monitoring, and to the extent that new
facilities will be located outside of floodplains and wetlands, public
confidence in these types of units will be increased. Having a higher
level of confidence should result in these types of units being easier
to site in the future.
Finally, to the extent that CESQGs separate out the small volumes
of hazardous waste, the resulting mass of clean non-hazardous waste
would have a better potential to be recycled.
IX. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
Pub. L. 96-354), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (''SBREFA''), EPA must consider
whether a regulatory action will have a significant adverse impact on
small entities. For a rule promulgated after June 27, 1996, EPA must
either certify that the regulation will not have a significant impact
on a substantial number of small entities or prepare a final regulatory
flexibility analysis that contains an evaluation of five factors. 5
U.S.C. 604(a). Because EPA promulgated this rule prior to June 28,
1996, the revised requirements of SBREFA for an expanded regulatory
flexibility analysis if a certification is not made do not apply. At
the same time, however, EPA has conducted an analysis to determine
whether the rule will have a significant impact on small entities. On
the basis of that analysis, EPA certifies that this rule will not have
a significant impact on a substantial number of small entities. The
factual basis for this certification is as follows.
EPA anticipates that this rule will increase costs for two classes
of facilities. CESQG generators that still handle their CESQG waste on
site are expected to send their CESQG waste to Subtitle C facilities,
at a maximum per-facility cost of $570 per year. Construction waste
generators will incur maximum additional per-firm costs of $1,469 per
year, for separation, transportation, and disposal of hazardous wastes.
In each case, EPA's analysis shows that the impacts are less than one
percent of annual revenues, for all sizes and types of companies.
This determination is based on EPA's projection of the response of
CESQG waste generators and disposal facilities to today's rule. EPA
performed a high end analysis, predicated on an assumption that C&D
landfills upgrade to meet these standards. In this scenario, cost
impacts would be higher. EPA does not expect C&D landfills to upgrade,
however, since they would be unlikely to recover the high costs of
upgrading. The analysis of effects on small entities is predicated on
an assumption that the owners of C&D landfills act rationally, i.e.,
they choose not to upgrade but rather choose to stop accepting CESQG
wastes.
Moreover, EPA has modified the proposed rule in a number of ways so
that cost to small entities may be decreased. For example, EPA has
included a provision which authorizes Directors of approved state
programs to establish an alternative list of indicator parameters not
only for the inorganic constituents but also for the organic
constituents to be monitored for in the detection monitoring phase of
ground water monitoring. Thus, owner/operators of non-municipal, non-
hazardous waste disposal units in approved states may have lower ground
water monitoring costs.
In addition, EPA has removed four location restrictions (airports,
fault areas, seismic impact zone, and unstable areas) from the final
rule for the reasons set forth in Section VI.B of today's preamble.
Costs for small entities that own non-municipal, non-hazardous waste
disposal units that must comply with this rule would thus be reduced
because no demonstrations to establish that these location restrictions
have been met would need to be made.
X. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ''major rule'' as defined by section 804(2) of the
APA as amended.
XI. 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. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1745.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division, U.S. Environmental Protection Agency
(2136), 401 M St., S.W. Washington, DC 20460 or by calling (202) 260-
2740. The information requirements are not effective until OMB approves
them.
The information to be collected under this rulemaking would be used
primarily by the States to regulate and ensure that non-municipal non-
hazardous waste disposal units that may receive CESQG wastes are
complying with the final requirements. The information collected would
be used by the State Director to confirm compliance on the part of the
owner/operator with the final requirements. All information will be
reported to the States or kept in an operating record at the facility.
EPA will not collect information from any of the facilities subject to
today's requirements, except in any potential enforcement case.
[[Page 34268]]
The total annual public recordkeeping and reporting burden is
estimated to be 12,100 hours with an average of 67 hours per
respondent. Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review collection of information; and
transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques to the Director, OPPE Regulatory
Information Division, U.S. Environmental Protection Agency (2136), 401
M St., S.W., Washington, DC 20460 or to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th St.,
N.W., Washington, DC 20503, marked ''Attention: Desk Officer for EPA.''
Include the ICR number in any correspondence.
XII. Environmental Justice
Executive Order 12898 requires Federal Agencies, to the greatest
extent practicable, to identify and address disproportionately high
adverse human health or environmental effects of its acti ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}